Arrears of E.S.I. contribution by employer can be recovered as arrears of land revenue.

(W.A.No.3825 of 2004 under Clause 15 of the Letters Patent filed against the order of this Court dated 17.09.2004 made in W.P.No.35567 of 2003.)

M. Karpagavinayagam, J.

The following is the question posed before this Bench:

"Does the proviso to Section 77 (1A) (b) of the Employees' State Insurance Act,1948, providing limitation of five years for claiming contribution, debar the Employees' State Insurance Corporation from recovering the contribution arrears as arrears of land revenue under Section 45B, in pursuance of an order under Section 45A of the Act ?"

2. Employees' State Insurance Corporation, respondents herein, passed orders, claiming the E.S.I. Contribution arrears from the appellants/various companies. Assailing those orders, the appellants filed separate writ petitions before the learned single Judge, on the ground that the orders passed by the Corporation were time barred. However, the learned single Judge, ultimately, dismissed those writ petitions and directed the appellants to invoke the alternative remedy, by approaching the E.S.I. Court and to raise the point. The said orders, passed by the learned single Judge, are being challenged in these Writ Appeals.

3. The main point urged by the learned Senior Counsel, appearing on behalf of the appellants in these appeals, is that the Corporation cannot make any claim against the employer after a period of five years, to which the claim relates, as incorporated in Section 77 (1A) (b) proviso of the Act, and since it relates to the bar of jurisdiction, the appellants have directly approached the High Court under Article 226 of the Constitution and, as such, the learned single Judge, instead of deciding the point in issue, wrongly directed the appellants to approach the E.S.I.Court and invoke the alternative remedy.

4. Relying on the Full Bench decision of Kerala High Court in ESI CORPORATION v. EXCEL GLASSES LTD. (2003 (3) L.L.N. 1142), Mr. A.L. Somayaji and Mr. Vijay Narayan, learned Senior Counsel, appearing for the appellants in separate appeals, would contend that the claims made in the orders impugned, passed by the Corporation, are well beyond the period of limitation of five years, as prescribed under Section 77 (1A) (b) of the Act; as such, those orders are illegal, the same are liable to be set aside and, consequently, the orders passed by the learned single Judge, directing the appellants to approach the E.S.I. Court, have to be held invalid.

5. On the other hand, Ms. R. Vaigai, learned counsel for the respondents, namely, E.S.I. Corporation, would vehemently contend that the orders, claiming contribution arrears, have been passed by the Corporation under Section 45A of the Act; there is no period of limitation with reference to the recovery of amounts passed under the said Section; the period of limitation, contemplated under Section 77 (1A) (b) would not apply to the orders passed by the Corporation and the recovery proceedings under Sections 45A and 45B; the Full Bench judgment of Kerala High Court, cited by the Senior Counsel for the appellants, which gives the wrong interpretation, is not binding on this Court and, therefore, the appellants shall be directed to approach the E.S.I. Court, by filing necessary application, challenging the orders impugned, to seek appropriate remedy, as directed by the learned single Judge.

6. The crux of the submissions made by the learned Senior Counsel for the appellants is as follows:

"(i) Chapter VI of the Act consisting of Sections 74 to 83 deals with the machinery for adjudication for disputes and claims. Section 75 (2) provides that the claim for recovery of contribution from the principal employer can be decided by the Employees' Insurance Court. Sections 76 and 77 would provide for commencement of proceedings before the said Court. Section 77(1A) of the Act provides that an application shall be made within a period of three years from the date on which the cause of action arises.

(ii) According to Section 77 (