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2020 Supreme(Mad) 1111
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.M.SUBRAMANIAM, J.
M/s.Food Corporation of India, Represented by its Area Manager - Appellant
Versus
Employees State Insurance Corporation – Respondent
C.M.P.No.390 of 2020 in C.M.A.SR.No.157845 of 2019
Decided on : 26-02-2020
Advocate Appeared:
For the Appellant : Mr.N.G.R.Prasad For Mr.S.Vijayakumar
For the Respondent: Mr.SP.Srinivasan
Headnote:
ESI Act – Section 82[4] – Civil miscellaneous petition is filed to condone the long delay of 1563 days in filing the Civil Miscellaneous Appeal, challenging the order passed – Learned counsel appearing on behalf of the appellant made a submission that the order was passed admittedly – However, in a similar case, the Hon’ble Supreme Court of India passed an order, the Hon’ble Supreme Court of India passed an order as extracted hereunder – “It is further submitted that as is evident from the counter affidavit filed on behalf of the Food Corporation of India, various benefits are extended to the DPS workers and, therefore, if those very workers are bracketed and considered to be the contract labour/contract workers or casual workers, the benefits which are otherwise available to such work force may stand denied –Held, Proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by section 5. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage the diligence of the party of its bona fides may fall for consideration – On the facts and in the circumstances, we are of the opinion that the respondent beneficiary was not diligent in availing the remedy of appeal – Averments made in the application seeking condonation of delay in filing appeals do not show any acceptable cause much less sufficient cause to exercise courts discretion in its favour – Civil miscellaneous petition in C.M.P. stands dismissed.
JUDGMENT :
PRAYER: C.M.P.No.390 of 2020 is filed under Section 82[4] of the ESI Act Read with Section 5 of the Limitation Act, to condone the delay of 1563 days in filing the Civil Miscellaneous Appeal.
C.M.A.SR.No.157845 of 2019 is filed under Section 82 of the ESI Act, against the order of the Employees State Insurance Court, Coimbatore, made in E.S.I.O.P.No.10/2014 dated 4.7.2015.
The civil miscellaneous petition is filed to condone the long delay of 1563 days in filing the Civil Miscellaneous Appeal, challenging the order dated 04.07.2015 passed in E.S.I.O.P.No.10 of 2014.
2. The learned counsel appearing on behalf of the appellant made a submission that the order was passed admittedly on 04.07.2015. However, in a similar case, the Hon’ble Supreme Court of India passed an order on 19.11.2019 in SLP[Civil].Nos.7211-7213/19 [Civil Appeal No.8841 - 8842 of 2019, the Hon’ble Supreme Court of India passed an order as extracted hereunder:
“It is further submitted that as is evident from the counter affidavit filed on behalf of the Food Corporation of India, various benefits are extended to the DPS workers and, therefore, if those very workers are bracketed and considered to be the contract labour/contract workers or casual workers, the benefits which are otherwise available to such work force may stand denied.
We see force in the submission advanced by Mr.C.U.Singh. It is accepted that since 1991 wherever contract workers were to be regularized upon prohibition of contract labour system, such persons have been regularized in Direct Payment System. In the circumstances, we see no reason to take any different view in the matter.
We, therefore, dismiss these appeals. No costs.”
3. In view of the Hon’ble Supreme Court of India order cited supra, the appellants are bound to prefer an appeal against the order of the ESI Court dated 04.07.2015 passed in O.S.No.10/2014. The learned counsel for the petitioner reiterated that the delay is to be condoned on account of the fact that the Hon’ble Supreme Court of India passed an order, excluding the benefit of ESI in respect of the directly paid employees engaged by the Food Corporation of India.
4. The learned counsel appearing on behalf of the respondent Employees State Insurance Corporation made a submission that the Circular in Circular No.14/2011 dated 02.09.2011 was issued by the Food Corporation of India and as per the said Circular “The Medical Health Care Scheme extended to the DPS Labour for the treatment of injury sustained in course of their employment vide Circular No. Circular-10/2005 (File No:IR(L)/14(2)/05) dated 23.08.2005 will stand withdrawn immediately at the pilot location after the coverage of DPS Workers in Medical Health Scheme of ESIC”. The said Circular dated 02.09.2011 has not been challenged nor been placed before the trial Court or before the Hon’ble Supreme Court of India. In other words, it is contended that even during the previous round of litigations, the said circular has not been challenged are the subject matter during the adjudication. However, in the present case alone, the said circular has been discussed.
5. The learned counsel for the respondent opposed the contentions of the appellant by stating that such a long delay cannot be condoned in the absence of any valid reasons. The order passed by the ESI Court on 04.07.2015 had already been complied with by the appellant/Food Corporation of India and therefore, reviewing the situation now after a lapse of about five years pursuant to the Hon’ble Supreme Court Judgment of the year 2019 would not arise at all. It is contended that the judgment of the Hon’ble Supreme Court of India cannot be implemented with retrospective effect, so as to unsettle the issues, which were settled pursuant to the circular dated 02.09.2011.
6. The learned counsel appearing on behalf of the appellant mainly contended that the delay is on account of the fact that the Hon’ble Supreme Court has decided the issues on 19.11.2019 and therefore,
