JUDGMENT :

S. Ramathilagam, J.

1. These appeals arise out of common order dated dated 9.3.2010 passed by the II Additional District Judge cum Employees Insurance Court at Pondicherry in ESIOP Nos. 4 of 2005 and 7 of 2006.

2. The appellant is the Principal Employer. The Employees State Insurance Corporation, the second respondent herein has passed two orders dated 07.01.2005 and 15.06.2006 invoking Section 45(A) of the Employees State Insurance Act, 1948 (in short, 'the ESI Act') against the appellant, claiming contribution for a sum of Rs. 66,41,731/- (for the period from 1999 to 2003) and Rs. 38,71,648/- (for the period from 4/2003 to 06/2005) payable by the appellant, under three heads, viz., a) Stitching charges paid to the contractors; b) interim relief paid by the appellant to its workers and c) Subsistence allowance paid by the appellant to its employees. Challenging these two impugned orders, the appellant has moved two petitions in ESIOP Nos. 4 of 2005 and 7 of 2006 before the Employees Insurance Court, Pondicherry.

3. The learned Employees Insurance Court, Pondicherry, having considered the entire materials placed before it both oral and documentary and upon hearing the learned counsel appearing for both sides, by common order, dated 9.3.2010, while confirming the impugned orders passed by the 2nd respondent, dismissed the ESIOPs filed by the appellant herein.

4. In these appeals, challenging the common order passed by the Employees Insurance Court, the appellant has raised very many contentions. According to the appellant, though on behalf of the appellant, it was not admitted that the monies were recovered by way of contribution from the immediate employer in respect of the employees engaged by them and that they kept the same awaiting a decision from this Court in regard to wage revision, the learned ESI Court has mistakenly considered as if the appellant admitted that they recovered the contribution and based on the said assumption, rendered an erroneous finding holding that the appellant is liable to pay the contribution. It is further contended on behalf of the appellant that in fact, the appellant is not the employer who engaged the employees for the work and there was no direct control and supervision by the appellant since the most of the contractors were undertaking the work contract and doing the job work in their own places by employed their own workmen and the contribution under the head of stitching charges paid has to be actually paid by the contractors and despite the appellant pleaded for impleadment of the contractors, the 2nd respondent ESI Court has not impleaded them as parties and arbitrarily fixed 60% of the total amount paid to the contractors as wages. In this regard, the learned counsel for the appellant relied upon a decision reported in Bharat Heavy Electricals Ltd. v. ESI Corporation AIR 2008 SC 1449 : (2008) 3 SCC 247 and contended that workmen concerned had been engaged by the immediate employer, i.e. contractors who would be in possession of the relevant records to show as to whether or not any contribution was payable or whether the Act was applicable in respect of the concerned workmen. According to the appellant, though the basic raw material is supplied by the appellant, the contractors still have to buy other raw materials such as threads, needles, machineries and other accessories and that many of the contractors were funning their units in rented places, for which, they have to pay rents, electricity charges, etc. and hence, the amount paid by the appellant to the contractors includes all the above expenses and hence, out of the payment made to the contractors by the appellant, only 25% of the same should be considered as wages and therefore, fixation of 60% of total amount as wages to the employees, is arbitrary and unreasonable.

5. It is further contended that the claim is barred by limitation since admittedly, the claim was made beyond the period of five years from the alleged date