Research › Search › Judgment

Jharkhand High Court · body

2024 DIGILAW 604 (JHR)

AR Tyres & Cold Retreaders v. Regional Director

2024-06-21

SANJAY KUMAR DWIVEDI

body2024
JUDGMENT : SANJAY KUMAR DWIVEDI, J. Heard learned counsel appearing for the appellant and learned counsel appearing for the respondents. 2. This appeal is preferred by the appellant being aggrieved and dissatisfied with the judgment and order dated 25.06.2005 passed by learned Presiding Officer, Labour Court-cum-ESI Court, Ranchi in ESI Case No.11 of 2002 by which the learned Court has dismissed the petition filed under Section 75 of the Employees State Insurance Act (hereinafter referred to as Act of 1948) on the ground that it is barred by limitation. 3. Mr. Indrajit Sinha, learned counsel appearing for the appellant submits that the appellant received a notice in a prescribed Form C11 dated 17.12.1992, whereby and whereunder it has been intimated that on the basis of an inspection made by the Inspector on 01.09.1992, the establishment falls within the purview of factory with effect from 01.03.1991 and therefore, the appellant is directed to take steps for registration of the said establishment under the provisions of Employees State Insurance Act, 1948. He submits that the appellant in response to notice aforesaid vide its letter dated 28.01.1993 saying that no such inspection was ever made on 01.09.1992 by any inspector. Thereafter, the appellant filed a petition for extending the date and time fixed for filing the show cause and to produce records that thereafter ESI vide letter dated 10.03.1995 fixed a date for personal hearing on 03.05.1995. He submits that vide order dated 08.08.1995, the appellant was called upon to pay the determined amount under the ESI for the period from 01.03.1991 to 31.12.1994. By way of referring Annexure-3A, he submits that by letter dated 10.03.1995 the appellant was intimated that pursuant to letter dated 21/22.02.1995, the appellant was again called for hearing by letter dated 03.05.1995. The appellant herein again filed a petition intimating that the establishment is not coming within the definition of the ESI Act. He submits that by letter dated 12.03.1996, the ESI has also given an opportunity to disclose the stand of the appellant. He submits that this letter was dated 12.03.1996, however it was discussed later on and it was received by the appellant on 10.05.1996. He submits that in view of Annexure 7 dated 04.04.1996, the Deputy Regional Director has intimated the recovery officer for recovering of the said amount from the appellant. He submits that this letter was dated 12.03.1996, however it was discussed later on and it was received by the appellant on 10.05.1996. He submits that in view of Annexure 7 dated 04.04.1996, the Deputy Regional Director has intimated the recovery officer for recovering of the said amount from the appellant. The appellant herein has again filed a petition on 14.05.1996 to hear the appellant for determination of the dispute by way of referring the Annexure-9 dated 20.02.1998. He submits that this proceeding was itself stayed. Again, the appellant was called upon to produce all the records at Patna by Annexure-10 dated 15.04.1998, the appellant intimated the ESI that appellant is ready to produce all the document at Ranchi and not in Headquarter. He submits that by letter dated 31.05.2000 contained in Annexure-11, the earlier stay order was stated to be vacated, if the appellant fails to appear on 29.06.2000. He submits that by letter dated 26.06.2000, the appellant herein further intimated the ESI that raising of the demand is bad in law and the appellant is not able to and the documents have already been produced before the ESI and again intervention was demanded by the appellant vide letter dated 21.12.2000 contained in Annexure-13. The recovery officer vide Annexure-14 called upon the appellant to appear for satisfying the order passed under Section 25A of the Act of 1948. In this background, he submits that the learned labour Court has erred in deciding the preliminary objection itself at the first point without considering the facts that there are mixed question of fact and law for deciding the issue of limitation, however learned Court has wrongly decided that only law points is there, there is no facts for deciding the same and he submits that order is fit to be set aside. He further submits in the second limb of the argument that Section 14 of the Limitation Act, 1963 is attracted in the case of limitation. He further submits in the second limb of the argument that Section 14 of the Limitation Act, 1963 is attracted in the case of limitation. He submits that if a wrong forum is chosen by any of the litigant that period can be exempted in counting of the limitation and to buttress this argument he relied in the case of Shree Chamundi Mopeds Ltd. versus Church of South India Trust Association CSI Cinod Secretariat, Madras reported in (1992) 3 SCC 1 and he refers to para 10 which is quoted as under: In the instant case, the proceeding before the Board under Section 15 and 16 of the Act had been terminated by order of the Board dated April 26, 1990 whereby the Board, upon consideration of the facts and material before it, found that the appellant-company had become economically and commercially non-viable due to its huge accumulated losses and liabilities and should be wound up. The appeal filed by the appellant-company under Section 25 of the Act against said order of the Board was dismissed by the Appellate Authority by order dated January 7, 1991. As a result of these orders, no proceedings under the Act were pending either before the Board or before the Appellate Authority on February 21, 1991 when the Delhi High Court passed the interim order staying the operation of the order of the Appellate Authority dated January 7, 1991. The said stay order of the High Court cannot have the effect of reviving the proceedings which had been disposed of by the Appellate Authority by its order dated January 7, 1991. While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to by the Delhi High Court staying the operation of the order of the Appellate Authority dated January 7, 1991 does not have the effect of reviving the appeal which had been dismissed by the Appellate Authority by its order dated January 7, 1991 and it cannot be said that after February 21, 1991, the said appeal stood revived and was pending before the Appellate Authority. In that view of the matter, it cannot be said that any proceedings under the Act were pending before the Board or the Appellate Authority proceedings under the Act were pending before the Board or the Appellate Authority on the date of the passing of the order dated August 14, 1991 by the learned Single Judge of the Karnataka High Court for winding up of the company or on November 6, 1991 when the Division Bench passed the order dismissing O.S.A. No.16 of 1991 filed by the appellant-company against the order of the learned Single Judge dated August 14, 1991. Section 22(1) of the Act could not, therefore, be invoked and there was no impediment in the High Court dealing with the winding up petition filed by the respondents. This is the only question that has been canvassed in Civil Appeal NO.126 of 1992, directed against the order for winding up of the appellant-company. The said appeal, therefore, fails and is liable to be dismissed. 4. Relying on the above judgment Mr. This is the only question that has been canvassed in Civil Appeal NO.126 of 1992, directed against the order for winding up of the appellant-company. The said appeal, therefore, fails and is liable to be dismissed. 4. Relying on the above judgment Mr. Sinha submits that since recovery was kept in abeyance for some time it amounts to review for stay of the order and hence that period should be excluded in counting of the limitation. He submits that if a review petition is there the period spent there will be exempted. By referring to the above judgment, he submits that it has been decided in paragraph No.24 of the said judgment/order that the order passed by the Tribunal in appeal of objection by which the Tribunal has dismissed the appeal for review of the said order and in view of that since the ESI has given some time for complying the order that will amount to merge in the order under Section 45 and in view of that the learned Presiding Officer Labour Court-cum-ESI Court has wrongly dismissed the petition on the point of limitation itself. On this ground, he submits that the order may kindly be quashed. 5. Per contra, Mr. Ashutosh Anand, learned counsel appearing for the ESI submits that vide letter dated 28.01.1993, the establishment of the appellant was informed about the inspection on 01.09.1992 on intimating that the establishment is coming within the purview of an Act of 1948. By order dated 08.08.1995 passed under Section 45A, the appellant was called upon to pay the contribution for the period from 01.03.1991 to 31.12.1994. He submits that a letter was filed by the appellant on 10.03.1995 in view of that the appellant was again called upon for a personal hearing and it was stated that the appellant failed to appear, the amount was already claimed will be determined to verify the said record. Verifying the said record, the request was again made by the appellant on 06.09.1995 by letter dated 12.03.1996, the appellant was again called upon to appear before the Deputy Director, ESI and it was stated that if he will fail to appear, the case will be decided ex-parte on merits. 6. Verifying the said record, the request was again made by the appellant on 06.09.1995 by letter dated 12.03.1996, the appellant was again called upon to appear before the Deputy Director, ESI and it was stated that if he will fail to appear, the case will be decided ex-parte on merits. 6. The Deputy Director, ESI has requested to recover the same from the appellant by letter dated 04.04.1996 and again a letter was filed by the appellant dated 14.05.1996 for providing further opportunity of hearing on the ground that earlier letter was not received by the appellant. ESI again intimated the appellant vide letter dated 20.02.1998 that you have deposited a sum of Rs.8,847/- for the demand of April 1995 to April 1996 against demand of Rs.8,859/- from the period of April 1995 to April 1996 and it was further intimated that you have already accepted that Rs.12 will be deposited further and it was further intimated that the determined amount prior to April 1995 has also not been deposited, by the appellant, however, further opportunity was provided to the appellant to appear on 15.04.1998 and the appellant failed to appear, however, the time was demanded and it was further intimated by the appellant that he is ready to show the document at Ranchi and not at Patna. He submits that by letter dated 31.05.2000, it was observed that the determined amount stay will not be there for recovery of the determined amount, the abeyance will not continue and the recovery proceeding will resume. Again, a letter dated 26.06.2000 was sent by the appellant for drawing of the entire proceeding by the ESI as they disputed the demand, again the same was repudiated by 21.12.2000 vide Annexures 13. The ESI again demanded the determined amount by the appellant. He submits that in this background, the appellant has not challenged the first order at the earlier period, however, the said was challenged before the learned Presiding Officer, Labour Court-cum-ECI Court later on which was decided by the order dated 25.06.2005. He submits that there is no illegality in the order of the learned Tribunal as the Tribunal has rightly come to the conclusion that only the question of law is involved and that can be decided as a preliminary issue. There is no provision of condonation under the Act of 1948. He submits that there is no illegality in the order of the learned Tribunal as the Tribunal has rightly come to the conclusion that only the question of law is involved and that can be decided as a preliminary issue. There is no provision of condonation under the Act of 1948. He submits that no review petition was filed before the ESI as such the judgment relied by the learned counsel for the appellant are not on the facts of the present case. He submits that ECI has not gone for review only a communication made by the appellant. In view of these facts also the judgments relied by the appellants are not applicable in the facts and circumstances of the present case. 7. In view of the above submission of learned counsel for the parties, it is an admitted position that the first order under Section 45A of the Act of 1948 was passed on 08.08.1992 and thereafter how the correspondence was made by the appellant which was replied by the ESI has been noted in the argument of learned counsel appearing for the appellant as well as learned counsel appearing for the respondent ESI under the Act of 1948 as there is no provision of filing any review and if an order is passed under the said Act that can be challenged before the competent Court. Sub section 3 of Section 77 of the Act of 1948 says that the cause of action in respect of a claim by corporation for recovering contribution from the principle in question has been deemed to be horizon on the debt on which such claim is made by the corporation for the first time. Admittedly, the said demand was made under Section 45A of the Act of 1948 on 08.08.1995. Sub-Section 1-A of Section 77 of the Act of 1948 says that every such application shall be made within a period of three years from the date on which the cause of action arose. For ready reference of Section 77 is quoted herein below:- 77. Commencement of proceedings (1) The proceedings before an Employees’ Insurance Court shall be commenced by application. (1A) Every such application shall be made within a period of three years from the date on which the cause of action arose. For ready reference of Section 77 is quoted herein below:- 77. Commencement of proceedings (1) The proceedings before an Employees’ Insurance Court shall be commenced by application. (1A) Every such application shall be made within a period of three years from the date on which the cause of action arose. Explanation : For the purpose of this sub-section,- (a) The cause of action in respect of a claim for benefit shall not be deemed to arise unless the insured person or in the case of dependants’ benefit, the dependants of the insured person claims or claim that benefit in accordance with the regulations made in that behalf within a period of twelve months after the claim became due or within such further period as the Employees’ Insurance Court may allow on grounds which appear to it to be reasonable; (b) The cause of action in respect of a claim by the Corporation for recovering contributions (including interest and damages) from the principal employer shall be deemed to have arisen on the date on which such claim is made by the Corporation for the first time: PROVIDED that no claim shall be made by the Corporation after five years of the period to which the claim relates; (c) The cause of action in respect of a claim by the principal employer for recovering contributions from an immediate employer shall not be deemed to arise till the date by which the evidence of contributions having been paid is due to be received by the Corporation under the regulations. (2) Every such application shall be in such form and shall contain such particulars and shall be accompanied by such fee, if any, as may be prescribed by rules made by the State Government in consultation with the Corporation. 8. Proviso of Section 77 speaks that no claim shall be made by the corporation after lapse of five years and no dispute can be raised by the establishment after three years. The above section has not given any power to condone the delay either on behalf of the ESI for the claim or by the employer for making any dispute before the competent court. It is well settled that if a statute provides the things to do in a particular manner that is required to be followed which has not been done by the appellant. It is well settled that if a statute provides the things to do in a particular manner that is required to be followed which has not been done by the appellant. The order dated 08.08.1995 was challenged before the Presiding Officer Labour Court-cum-ESI Court on 08.08.2002 which was decided by the impugned order dated 25.06.2005. Thus, it was challenged after seven years whereas the limitation for filing of the dispute is made within three years, in view of this fact, the said petition was barred by time. 9. The question remains that in view of the statutory provision for raising a dispute of recovery of the amount in the light of Section 77 of the Act of 1948 already there and how a law point can be said to be decided by way of mix question of fact as has vehemently argued by the learned counsel for the appellant. The whole mess was created by the appellant by way of filing several petitions before the ESI. ESI has not replied to certain communication of the appellant saying that those petitions have not been entertained as a review of the first order. Further if an employer is coming within the purview of the Act of 1948, they are required to contribute the amount every year. The first demand was for the year 01.03.1991 to 31.03.1994. Rs.8,847/- was deposited by the appellant for the period of April, 1994 to April, 1995. This fact further suggests that communication was being made by the appellant for determination of the contribution with regard to the further period of demand, if any, and the appellant was trying to have exemption from the said applicability of the Act in the light of the filing one and another petition. Thus, it cannot be said that those petitions were filed for review of the first order which was also not entertained by the ESI in the form of the review and Act is not providing any form of review. Thus, the contention of the learned counsel appearing for the appellant that it is the mix question of fact and law involve for deciding of the said preliminary issue has got no leg to stand. 10. The law of limitation is enshrined in the legal maxim interest reipublicae ut sit finis litium Utsit finish litiun (It is for public good that there be an ends of litigation). 10. The law of limitation is enshrined in the legal maxim interest reipublicae ut sit finis litium Utsit finish litiun (It is for public good that there be an ends of litigation). Therefore, it is well settled that a Rules of limitation are not meant to destroy the right of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time, as has been held in the judgment rendered by Hon’ble Supreme Court in the case of Brijesh Kumar & Ors. versus State of Haryana and Ors. reported in (2014) 11 SCC 351 . The Privy Council in General Accident Fire and Life Assurance Corporation Ltd. v. Janmahomed Abdul Rahim, (1939-40) 67 IA 416, relied upon the writings of Mr. Mitra in Tagore Law Lectures, 1932, wherein, it has been said: “A Law of limitation and prescription may appear to operate harshly and unjustly in a particular case, but if the law provides for a limitation, it is to be enforced even at the risk of hardship to a particular party as the Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exception not recognized by law.” 11. While considering the similar issue the Hon’ble Supreme Court in the case of “Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649 has held as under: “21.5 (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.7 (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.9 (ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go-by inb the name of liberal approach. 22.4 (d) The increasing tendency of perceive delay as a nonserious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.” 12. 22.4 (d) The increasing tendency of perceive delay as a nonserious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.” 12. It is settled position of law that when a litigant does not act with bona fide motive and at the same time, due to inaction and laches on its part, the period of limitation for filing the appeal expires, such lack of bona fide and gross inaction and negligence are the vital factors which should be taken into consideration while considering the question of condonation of delay, however, in the case in hand, even statute itself debar of filing of any limitation petition after expiring of the period of limitation as prescribed in the Act of 1948 . 13. In view of the above discussion, the Court comes to a conclusion that the learned Presiding Officer, Labour Court-cum-ESI Court has rightly passed the said order relying on the judgment of this Court in Beni Prasad Mohta versus Union of India reported in (2002) 2 JCR 7 and another judgment. There is no illegality in the interim order as such this appeal is dismissed.