- (1.) THESE two appeals arise out of almost identical facts and raise a common question of law for decision. They arise out of two applications filed by the Employees' State Insurance Corporation (hereinafter referred to as 'the Corporation') before the Employees' Insurance Court, Bombay, (hereinafter referred to as the 'e. I. Court'), under Section 75 (2) of the Employees' 'state Insurance Act, 1948 (Act 34 of 1948, hereinafter referred to as 'the Act' ). The application leading to A. O. No. 5 of 1968 was against Messrs. Popular Process Studio and its proprietor Mukund Kashalkar for the recovery of Rs. 1567. 63 as employees' contribution for the period from August 19, 1959, to August 31, 1964, and was filed on. January 25, 1965, while the application leading to A. O. No. 6 of 1968 was against Messrs. Dawn Mills Co. (Ltd.) and its Director Ramniwas Ram-narain for the recovery of Rs. 7252. 13 as employees' contribution for the period from October 3, 1954, to March 31. 1960, and was filed on June 23, 1964. Both the applications were accompanied by applications for condonation of delay for the reasons stated therein but it was made clear that the prayer for condonation of delay was made without prejudice to the contention of the Corporation that Rule 17 of the Bombay Employees' Insurance Courts Rules, 1959, requiring an application to the E. I. Court to be made within twelve months from the date on which the cause of action arose, was ultra vires and applications to the E. I. Court were not subject to any limitation.
(2.) THE respondents contended that the applications were barred by time and there were no sufficient reasons for condoning the delay.
(3.) BEFORE the applications for condonation of delay came up for hearing, a Division Bench of this High Court had held in the Employees' State Insurance Corpn. v. M/s. Bharat Barrel and Drum Mfg. Co. , (P.) Ltd. , 69 Bom LR 52 - (AIR 1967 Bom 472), that Rule 17 of the Bombay Employees' Insurance Courts Rules, 1959, was ultra vires the rule-making power of the State Government under Section 96 (1) of the Act and applications filed by the. Corporation before January 1, 1964, are not subject to any period of limitation but those filed thereafter are subject to the period of three years from the date when the right to apply accrues, prescribed in Article 137 of the Limitation Act of 1963 (36 of 1963 ). As both the applications in question had been filed after January 1, 1964, and the right to apply had apparently accrued more than three years prior to the filing of the applications, the applications for condonation of delay still survived and were heard. In the application against Messrs,' Popular Process Studio, the E. I. Court held that the opponents had fraudulently concealed from the Corporation till November 27, 1963, documents necessary for ascertainment of dues; hence by virtue of the provisions of Section 17 of the Limitation Act, 1963, limitation did not star till that date and the application which was filed within three years from that date was within limitation. Alternatively it also held that the Corporation was misled by the practice followed by the E. I. Court of treating such applications as governed by Article 120 of the Indian Limitation Act, 1908, till the decision of this High Court referred to above, which was given on September 19, 1966, and hence condoned the delay, if any- In the application against Messrs. Dawn Mills Co. (Ltd.) the E. I. Court condoned the delay on the same ground.;