P.R. RAMACHANDRA MENON, J.

1. The basic point mooted as the Substantial Question of Law (among other questions raised) is whether the Limitation Act, particularly Section 5, is applicable to a proceeding filed before the Employees' Insurance Court (EI Court) and whether the EI Court has power to condone the delay, beyond the specified extent under the relevant provision i.e. Section 77(1A) of the Employees' State Insurance Act (ESI Act), even if the explanation offered is satisfactory.

2. The appeal has been preferred by the applicant/Management establishment, on being aggrieved of the order dated 14.02.2012 in I.C.No.28 of 2010, whereby interference was declined and the case was dismissed as 'barred by limitation' also holding that the reason was 'not satisfactory'. The factual position leading to the case is that, the appellant, a Company constituted under the relevant provisions of The Companies Act, 1956 was running a hotel under the name and style as “Tripenta Hotel” which was covered as a 'factory' under the ESI Act with effect from 05.02.2001, assigning the necessary code. According to the appellant, there was change of ownership and management of the Company in the year 2004 and that the new Management was ensuring due compliance with the relevant provisions of the ESI Act, effecting contribution to the extent as payable in law. While so, a notice dated 07.01.2010 was served upon the new Management by the respondent Corporation, informing that O.P.No.7364 of 2003, which was preferred by the establishment before this Court, had already been dismissed as per judgment dated 10.11.2006 and as such, the appellant was liable to pay a sum of Rs.1,20,935/- towards the arrears of contribution for the period from 01.04.2000 to 31.03.2000 (after deducting a sum of Rs. 43450/- already deposited, pursuant to the interim order passed by this Court, as against the total claim of Rs.1,66,385/- with interest).

3. It is borne out from the records that, pursuant to an inspection conducted in the premises on 05.06.2002, causing verification of the profit and loss account/balance sheet/pay book/ledgers etc. proceedings were issued on 31.07.2002, referring to various discrepancies/insinuation. On receipt of the said proceedings, the then Management of the appellant Company sent a reply dated 21.08.2002 and the points raised by the respondent Corporation were stated as clarified by the appellant. However, allegedly without any regard to the facts and figures, the respondent Corporation issued Form 18 notice dated 19.09.2002 demanding a total contribution of Rs.1,66,385/- which was followed by 'ad hoc assessment order' dated 30.10.2002 and Form C19 recovery authorisation dated 21.01.2003.

4. By virtue of the turn of events, the previous Management of the Company challenged the proceedings by filing O.P. 7364 of 2003 before this Court, wherein an interim order of stay was granted, subject to satisfaction of Rs.43450/-. The petitioner Company satisfied the condition and was enjoying the benefit of interim stay. Later, after the change in management effected in the year 2004, as stated already, the Original Petition came to be disposed of as 'infructuous' on 10.11.2006. It was with reference to the said turn of events, that the letter dated 07.01.2010 was issued by the Corporation seeking satisfaction of the due amount. This made the appellant to feel aggrieved, who approached the Employees' Insurance Court (EI Court) by filing I.C.No.28 of 2010 challenging the proceedings, with a petition (I.A.No.70 of 2010)to condone the delay of much more than 'five years'.

5. The respondent Corporation filed a detailed written statement, also raising the plea of 'limitation'; although no separate counter affidavit was filed in the I.A. to condone the delay. It was contended by the appellant on merit, that the amount paid to the Managing Director towards 'sitting fee' was not liable to be reckoned as part of wages. Similarly, the amount spent by the Comp