Judgment:
Chidananda Ullal, J.
1. This appeal is presented by the workman covered under the ESI Act to challenge the order dated 7-10-1997 in ESI Application No. 66 of 1995 passed by the ESI Court. In passing the said order, the ESI Court had rejected the application of the appellant herein on the ground that there was delay of a day in presenting the application.
2. The appellant herein is represented by Smt. H. Mangalamba Rao, whereas the contesting respondent 2-ESI Corporation is represented by Sri V. Narasimha Holla.
3. The learned Counsel for the appellant had taken me through the impugned order. According to her, the ESI Court had erred in law, inasmuch as it had held erroneously that the application in question was not presented within 3 months from the date of communication of the order, for according to her, admittedly, the communication by the Medical Board was on 19-9-1995 and as such, a period of 3 months came to an end on 19-12-1995. Therefore, she submitted that the application presented by the appellant on 19-12-1995 was well in time and as such, the ESI Court would not have rejected the application of the appellant on the point of delay.
4. The learned Counsel appearing for the contesting respondent 2 Sri Holla on the other side, supported the impugned order passed by the ESI Court.
5. I feel it appropriate to quote here Rule 20-B of the Employees' State Insurance (Central) Rules, 1950 (in short henceforth the 'Rules'). The same reads as hereunder:
'20-B. Appeals to Employees' Insurance Court.--(1) The insured person or the Corporation may appeal to the Employees' Insurance Court by presenting an application within three months of the date of communication of the decision of the Medical Board or of the Medical Appeal Tribunal to the insured person or the Corporation, as the case may be:
Provided that the Employees' Insurance Court may entertain an application after the period of three months, if it is satisfied that the applicant had sufficient reasons for not presenting the application within the said period. (2) The rules made by the State Government in respect of the form and manner to be followed in presenting applications to the Employees' Insurance Court, shall be applicable to the applications presented under this rule'.
6. I have also applied my mind to the case in hand. As I see, as per Rule 20-B of the Employees' State Insurance (Central) Rules, 1950, insured person as that of the appellant herein had to file an appeal before the Employees' Insurance Court by presenting an application within 3 months from the date of communication of the decision by the Medical Board or before the Medical Appeal Tribunal. Admittedly, in the instant case in hand the communication of the Medical Board was on 19-9-1995 and if 3 months of time were to be reckoned from that date of communication, i.e., 19-9-1995, the last day of the said period of 3 months occurs only on 19-12-1995. That I say on the analogy that, if the first day had commenced on 19-9-1995, that first day had ended only on the day next i.e., 20-9-1995.
7. As argued by the learned Counsel for the appellant Smt. Mangalamba Rao, the application by way of appeal as contemplated under the above rule came to be presented on that last date i.e., 19-12-1995. It is therefore obvious that the application filed by the appellant before the ESI Court on that day is well-within 3 months from the date of communication of the order by the Board. The ESI Court in the matter of computing the period of 3 months from the date of communication i.e., 19-9-1995 observed that, that period of 3 months had come to a close on 18-12-1995. That in my considered view appears to be erroneous on the part of the ESI Court to do.
8. Since we are dealing with the Central enactment in the Employees' State Insurance Act, it is relevant to refer to Section 3(35) of the General Clauses Act, 1897, wherein 'month' had been defined as, 'a month reckoned according to British calendar month'. It is relevant to mention here that in a case where the term 'month' came to be interpreted under Bombay Rents, Hotel and Lodging-house Rates Control Act, vis-a-vis the term 'month' as explained in the Bombay General Clauses Act, 1904, wherein a 'month' reckoned according to the British calendar month, the Gujarat High Court in the case of Mistry Bhikhalal Bhovan v. Sunni Vora Noormamad Abdul Karim and Ors., : AIR1978Guj149 , had observed as hereunder:
'In common parlance, the term 'month' is hardly understood as a calendar month according to the Gregorian calendar, but it by and large means 'space of time from a day in one month to the corresponding day in the next'. This is the meaning of the term 'month' given in the Concise Oxford Dictionary, 1964 Edition. The term 'month' has been explained also in the Bombay General Clauses Act, 1904. The term 'month' as defined in Section 2(30) of the Bombay General Clauses Act, means 'a month reckoned according to the British calendar'. The term 'reckoned' is equivalent of the term 'calculated' or 'counted'. The phrase 'until the expiration of one month next after notice in writing is served' in Section 12(2) clearly indicates that the month is to be counted from the date of service of the notice on the tenant, (paras 4 and 5)
Thus both the general tenor of the term as well as the clear meaning that could be derived from the interpretation of the term occurring in Section 12(2) clearly point to only one conclusion, namely, that the month referred to there is a span of time between two dates of two contiguous months and not a calendar month. C.R. No. 712 of 1972, DD: 3-2-1976 (Guj.), overruled, (para 6)'.
9. If that be so, if the communication in question in the instant case in hand had been received by the appellants herein on 19-9-1995, a space of time of 3 months has to be reckoned from 20-9-1995 to 19-12-1995 leaving apart the day of communication i.e., 19-9-1995, for the first day completed only on the day next i.e., 20-9-1995. Therefore, it is obvious that the application filed by the appellant before the ESI Court as on 19-12-1995 has to be considered in law as the one well in time and not time barred.
10. In this context, the decision of the Apex Court in Tamal Lahiri v. Kumar P.N. Tagore, : 1979CriLJ1 , beneficially be referred to. In the said decision, with reference to Section 3(27) of the Bengal General Clauses Act wherein the term 'month' had also been defined as 'British calendar month', the Supreme Court held that a period of 6 months will mean six British calendar months and not 180 days.
11. In para 6 of the said judgment, the Supreme Court had observed as hereunder:
'6. We must, therefore, proceed on the basis that the failure to remove the encroachment having occurred on the expiry of December 20, limitation began to run for the purpose of Section 533 on that and not on any earlier date. The only question which then requires examination is whether the prosecution which was filed on June 19, 1968, was instituted as required by Section 533, 'within six months next after the commission' of the offence. An argument was raised in the High Court that 'six months' must be construed to mean 180 days and not six calendar months. The High Court does not appear to have accepted that submission. There the High Court is right, because Section 3(27) of the Bengal General Clauses Act, I of 1899, defines 'a month' to mean a month reckoned according to the British calendar. The expression 'six months' which occurs in Section 533 of the Act must accordingly be construed to mean six calendar months and not 180 days. The offence, being alleged to have been committed on the expiry of December 20, 1967, and the prosecution having been instituted on June 19, 1968, the provisions of Section 533 must be held to have been duly complied with'.
12. In that view of the matter, I feel that the instant appeal merits consideration in the hands of this Court. In the result, the impugned order passed by the ESI Court in case No. 66 of 1995 dismissing the application of the appellant as time barred stands set aside.
13. Hence the matter now stands remitted to the ESI Court with a direction to dispose off the claim of the appellant in accordance with law.
14. In view of the circumstances that the application in question is of the year 1995, I feel that in the fitness of things that the ESI Court disposes off the matter within a period of one month from the date of communication of this order; I direct the ESI Court accordingly,
15. The Registry is also directed to forward a copy of the order herein passed to the ESI Court as expeditiously as possible.