JUDGMENT

This Civil Miscellaneous Appeal has been filed by the appellant herein under Section 82 (2) of Employees State Insurance Act, 1948 (E.S.I Act, hereafter) to set aside the Order of the Employees State Insurance Court, Coimbatore dated 10.02.2020 made in I.A. No.1/2019 in Unnumbered

E.S.I.O.P.

2. For the sake of convenience, the parties are referred herein according to their litigative status before the Tribunal.

3. The petitioner is an Export House engaged in Knitted Garment business in the name of “Prime Tex” and brought under the provision of Employees State Insurance Corporation Act, 1948. The E.S.I Code number allocated to the petitioner's establishment is Code No.56-61338-

16/25/INS/III/TRP.

4. On 06.10.2012, the respondent - Corporation issued two Show

Cause/ Ad-hoc Notices to the petitioner for seeking contribution for Rs.61,61,985/- and for a sum of Rs.6,19,481/- for the financial years 2001-

2002 and 2002-2003 respectively. On receipt of the Adhoc notices, the petitioner immediately filed a petition before the E.S.I Court, Coimbatore on 24.10.2004 and the same was intimated to the Corporation as per the letter dated 15.11.2004. However, the Corporation has passed an ex-parte Order dated 22.11.2004 by invoking section 45-A of the E.S.I Act. The petitioner approached the E.S.I Court challenging the Section 45-A Order passed by the appellant herein. Subsequently, the petition filed by the petitioner before the E.S.I Court, challenging the Ad-hoc Notice was returned on the ground that the same is pre-matured and observed that the petitioner shall appear before the Corporation and submit his case. Thereafter, he appeared before the respondent - Corporation and prayed for setting aside the ex-parte Order passed on 22.11.2004, but the respondent- Corporation has not conducted any enquiry as prayed by the petitioner. He has also sent another letter requesting for re-hearing and the same was also not considered.

5. Subsequently, on 23.01.2019, the respondent - Corporation has initiated the recovery proceedings and demanded the payment of the contribution as ordered by Section 45-A within a period of 15 days. Immediately after the receipt of the copies, the petitioner approached the

E.S.I Court to set aside the Order passed under Section 45-A of the Act along with by filing a petition for condoning the delay by invoking

Section 5 of the Limitation Act, 1963.

6. The E.S.I Corporation has also filed objections for condoning the delay. The E.S.I Corporation has taken a stand that the respondent herein has not challenged the Order passed U/s. 45-A of E.S.I Act or has not come forward to pay any contribution demanded by them. There is no reasonable cause to condone the delay of 4219 days and contended that the petition itself is not maintainable, since there is no provision of law to condone the delay.

7. The E.S.I Court after considering the arguments made on both sides has inclined to condone the delay. Aggrieved over the Order of condonation of delay, this appeal has been filed by the respondent – Corporation. The question of law arises for consideration before this Court is as follows: Whether E.S.I Court is having power to condone the delay in filing petition challenging the Order passed U/s.45-A of the Act, beyond the period prescribed U/s. 77(1-A) of the E.S.I Act?

8. The learned counsel appearing for the E.S.I Corporation submits that the proceedings before the E.S.I Court ought to be filed within the period of three years from the date of Order passed in Section 45-A of E.S.I Act and there is no provision for condoning the delay after lapse of three years. Originally there was a provision in Rule 17 of the Madras Employees Insurance Court Rules empowering the E.S.I Court to condone the delay. However, it has been declared as ultra vires by the Division Bench of this Court in . The Hon'ble Apex Court in under section 77 and 82 of the E.S.I Act, 1948.

9. Per contra, the learned counsel appearing for the petitioner has submitted th