DARA SHEKO,J. - (1.) The Court : The appellants have preferred the instant appeal being dissatisfied with the judgment and order of the learned Single Judge dated July 12, 2016 passed in W.P. No.531 of 2016 (Timken India Ltd. -vs- The ESI Corporation & Ors.). For the purpose of convenience, the Timken India Ltd. is hereinafter referred to as the "Company/Establishment" whereas the Employees' State Insurance Corporation" is referred to as "Corporation". The order is assailed on the grounds that the learned Single erred in setting aside the order dated February 6, 2012 passed by the E.S.I. Authority fixing the liability of ESI contributions of the company from 1992; holding that no order could have been passed for a period beyond five years from the date on which the contribution became payable. The contention of the appellants is that the amendment to section 45A of the ESI Act w.e.f. 01.06.2010 by insertion of second proviso thereto prohibits the Corporation from determining the liabilities of the employer beyond five years from the date of contribution will not be applicable in the instant case. It has no manner of application in the instant case also for the reason that determination of dues had already been made vide order dated 08.09.1997. As such, the said amendment being prospective to section 45A of the Act would not have retrospective application. An order dated February 6, 2012 was passed by the Corporation under section 45A of the Act to the effect that the E.I. Court vide Order No.02 dated 03.11.2011 had further directed to complete the proceedings within 3 months from the date of order and, therefore, it is said to have no other alternative than to decide the case on merit to honour the order of the E.I. Court. Relying upon the facts, that Insurance Inspector visited the establishment on 23.02.1995 and 07.02.1995 and verified the records for the period April, 1992 to February, 1995, recommended the establishment for coverage from 01.07.1992 (provisionally), the date on which the number of employees employed in the company for wages reached '20', drawing wages not exceeding Rs.3000/- per month.
(2.) It is in the aforesaid backdrop that the writ petition no.531 of 2012 was preferred by the company on June 26, 2012 challenging the order dated February 6, 2012 principally on the ground that by reason of the amendment carried to section 45A of the 1948 Act by inserting the second proviso thereto with effect from June 1, 2010, the Corporation lost jurisdiction to pass order to recover earlier contributions/dues in respect of the period beyond five years from the date on which contributions became due and payable. However, the learned Single Judge, by order dated July 12, 2016, inter alia, was pleased to allow the aforesaid writ petition to the following extent: "I have accepted all the contentions made by learned counsel for the ESI Corporation, except one. It is quite fundamental and goes to the root of the matter. The impugned order was made on 6th February, 2012 by the Deputy Director, Employees' State Insurance Corporation, Kolkata. He decided that the writ petitioner employed 20 persons for wages as on 1st July 1992 and that they were covered under section 1(5) of the ESI Act, 1948 with effect from that date. As a reason in support of the order he relied on a Form 01 dated 7th February, 1995 submitted by the employer. I have absolutely no hesitation in coming to the conclusion that as far as this factual issue was concerned, the Deputy Director decided it correctly. I find from this form as filled up by the writ petitioner (page 14 onwards of the affidavit in opposition) that they specifically declared that they had twenty emplyoees drawing wages not exceeding Rs.3,000/- per month as on 7th February, 1995. They also declared that there were twenty persons in their employment on 1st July, 192. There is every reason to believe that the self same persons were employed at a rate not above Rs.3,000/- because in three years' time the wages could not have fallen. But the jurisdictional issue is this. Section 45A was amended with effect from 24th May, 2010 by insertion of a second proviso thereto. It stipulated that the Corporation would not pass any order for a period beyond five years from the date on which the contribution was payable. Therefore, any contribution which was payable beyond a period of five years would not be subject matter of any order passed by the Corporation. The petitioner gets the benefit of this protection by the statute. The order dated 6th February, 2012 was clearly erroneous fixing liability on the petitioner from 1992. The impugned order th dated 6 February, 2012 is set aside on this ground. This writ application is allowed to the above extent."
(3.) Being aggrieved by the above judgment and order of the learned Single Judge dated July 12, 2016, the Corporation authorities have preferred the instant appeal.;