SANGEET LODHA,J. - (1.) By way of this petition, the petitioner has questioned legality of order dated 21.4.17 passed by the Joint Director, Employees State Insurance Corporation, under section 85 B of the Employees' State Insurance Act, 1948 (for short "the Act"), directing recovery of damages on account of delayed payment of amount due in respect of contribution and the recovery notices issued pursuant thereto. In the alternative, it is prayed that the respondents be directed to permit filing of an appeal against the order impugned before the Employees' State Insurance Court (ESI Court) without satisfying the condition of pre-deposit under subsection (2B) of Section 75 of the Act.
(2.) Learned counsel appearing for the petitioner contended that as per proviso to clause (b) of the Explanation attached to Section 77 (1A) of the Act, no claim shall be made by the Corporation after five years of the period to which the claim relates and thus, the claim for damages made by the Corporation by the order impugned for the period beyond five years is ex facie without jurisdiction.
(3.) A perusal of Section 77 reveals that it deals with commencement of proceedings before the ESI Court. The proviso to clause (b) of Explanation attached to sub-section (1-A) of Section 77 cannot be construed to be an independent provision without reference to the main provision of Section 77 of the Act. As a matter of fact, the proviso to clause (b) of Section 77(1-A) of the Act, fixing the period of 5 years for claim made by the Corporation apply only in respect of claim made by the Corporation before the ESI Court and to no other proceedings and therefore, the contention sought to be raised on behalf of the petitioner that by virtue of proviso to clause (b) of explanation attached to Section 77(1-A) of the Act, the damages determined by the Corporation by the order impugned for the period beyond 5 years is ex facie without jurisdiction, is absolutely devoid of any merit. The reliance in this regard may be placed on a decision of the Hon'ble Supreme Court in the matter of E.S.I.C. v. C.C. Santhakumar, (2007) 1 SCC 584.;