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2015 Supreme(Cal) 530
IN THE HIGH COURT OF CALCUTTA
Sambuddha Chakrabarti, J.
Steel Authority of India – Petitioner
Versus
Employees' State Insurance Corporation and Ors. – Respondents
WP 7128 (W) of 2015
Decided On : 25-03-2015
For the Petitioner:Saumya Majumder and Atasi Ghosh, Advocates
For the Respondent:Soumitra Banerjee, Advocate
The period of limitation for filing an appeal under Section 45AA of the ESI Act, 1948 starts running from the date of communication of the order to the aggrieved employer.
Headnote:
LIMITATION - EMPLOYEES' STATE INSURANCE ACT, 1948 - SECTION 45AA - Period of limitation for filing an appeal under Section 45AA of the ESI Act, 1948 - Interpretation - Whether the period of limitation starts running from the date of the order or from the date of communication of the order to the aggrieved employer - Held, the period of limitation starts running from the date of communication of the order to the aggrieved employer.
Fact of the Case:
The petitioner, an employer, filed an appeal under Section 45AA of the ESI Act, 1948 against an order passed under Section 45A of the Act. The appellate authority rejected the appeal as time-barred. The petitioner approached the High Court challenging the order of the appellate authority.
Finding of the Court:
The High Court held that the period of limitation for filing an appeal under Section 45AA of the ESI Act, 1948 starts running from the date of communication of the order to the aggrieved employer.
Issues: Whether the period of limitation for filing an appeal under Section 45AA of the ESI Act, 1948 starts running from the date of the order or from the date of communication of the order to the aggrieved employer.
Ratio Decidendi: The High Court relied on the following principles of law: 1. The period of limitation for seeking a remedy starts from the date the order was communicated to the aggrieved party or the date on which it was pronounced or published. 2. The knowledge of the party affected by such a decision, either actual or constructive, is an essential element which must be satisfied before the decision can be said to have been concluded and binding on him. 3. The intention or design of the statutory provision was to protect the interest of the person adversely affected by providing a remedy against the order or decision any period of limitation prescribed with reference to invoking such remedy shall be read as commencing from the date of communication of the order.
Final Decision: The High Court set aside the orders of the appellate authority and directed the appellate authority to reconsider the period of limitation afresh in the light of the observations made by the High Court.
Sambuddha Chakrabarti, J.
Heard Ms. Atasi Ghosh, led by Mr. Saumya Majumder, the learned advocates for the petitioner and Mr. Soumitra Banerjee, the learned advocate for the respondents.
2. The issue involved in the writ petition raises a very important point of law about the period of limitation for taking out an appeal from an order passed by a statutory authority. Since the entire issue revolves on a pure question of law and the facts of the case are not in dispute no affidavit is required. Mr. Banerjee, the learned Advocate for the respondents, also does not insist on it.
3. A proceeding under Section 45A of the Employees' State Insurance Act was initiated against the petitioner in the year 2013. Two orders were passed by the respondent authorities. The order that has created the problem for the present petitioner was passed on September 25, 2014 by which a sum of Rs.2,01,346/- was determined as contribution in respect of the concerned establishment for the period from February 05, 2014 to March 30, 2014 as a final determination.
4. The petitioner alleges that, though passed on September 25, 2014, it has received a copy of the same on November 21, 2014. Such allegation appears to have a basis from the communication made by the Assistant Director of the Employees' State Insurance Corporation (the Corporation for short). The date of the communication is November 19, 2014. As such, the statements of the petitioner that it had received it on November 21, 2014 stands corroborated from the date of communication.
5. Not being satisfied with the order passed under Section 45A of the said Act the petitioner filed an appeal under Section 45AA of the Act on January 20, 2015.
6. By a letter dated, January 21, 2015, the Assistant Director of the concerned Corporation intimated the petitioner that since the appeal had been filed beyond 60 days which is the period of limitation, the appeal could not be "considered for review of the order by the appellate authority". Subsequently, the petitioner had also taken out an application for recalling the said order. Again by a communication dated February 17, 2015 the petitioner was intimated that the appellate authority has perused the submission of the petitioner and the judgments relied on. He had not found sufficient reason for admitting the petitioner's time barred appeal and decided to reject the same.
7. This has compelled the petitioner to approach this Court.
8. Before the point of law involved in the writ petition is taken up for consideration it is necessary to pause here and to make an observation. It appears from the annexure P-7 and annexure P-9 to the writ petition to which reference has been made earlier, that the order of the appellate authority had been communicated in the form of an intimation by the Assistant Director of the Corporation. The petitioner has stated on oath that no copy of the order had been supplied to them. That apart, it appears that while rejecting the application for recalling the petitioner was not even given a hearing. But nonetheless the said application was rejected as without merit. Apart from the fact that the procedure adopted by the ESI authority is against the principles of natural justice it is imperative that the orders passed by the appropriate authorities should be communicated to a party. Mere intimation will not serve any purpose. A party has a right to know the contents of the order, particularly if the order is passed against him or her. If the order under Section 45A of the Act could be communicated to the petitioner - one wonders - why the orders under Section 45AA were not.
9. Mr. Banerjee has concerned the point of grievance made by the petitioner as an undeniable proposition of law.
10. Now about the merits of the writ petition. It appears that the appellate authority under the Act had committed a serious under the Act had committed a serious mistake in dismissing the appeal of the petitioner as time barred. Section 45AA of the Employee
