Lingaraja Rath, J.
1. The appellant has come before this Court assailing the order passed by the Employees' Insurance Court at Hyderabad in a case brought before it by the appellant seeking setting aside of the order passed by the respondent in No. APMEC/ 6701-101, dated January 29, 1992. In the order the respondent raised the demand for Rs. 32,06, 1777- as contribution payable by the appellant from March 30, 1975 to December 31, 1991. The E.I. Court having upheld the demand rejectingthe submissions advanced of the appellant being not liable to be covered under the Employees' State Insurance Act, 1948 (hereinafter referred to as 'the Act'), this appeal has been preferred.
2. It appears from the order passed by the E.I. Court that the respondent justified the applicationof the Act to the appellant treating it as a 'shop as notified in paragraph 3 of G.O. Ms. No. 297-Health dated March 26, 1975 issued by the Government of Andhra Pradesh under Section 1(5) of the Act. The E.I. Court dismissed the case accepting the stand of the respondent. Mr. K. Srinivasa Murthy, learned Counsel for the appellant, urges the appellant as not being liable to be treated as a shop and the Act as not applicable. It is his submission that the Hyderabad Race Club is neither an establishment nor a shop within the meaning of A.P. Shops & Establishments Act, 1988 and hence the notification G.O.Ms. No. 297 is not applicable to the appellant for which it cannot be treated as having been brought under the Act.
3. Section 1(5) of the Act makes the provision, so far as relevant for the purpose of this case,that the State Government after following the procedure stipulated may extend the provisions of the Act or any of them to any other establishment or class of establishments -industrial, commercial, agricultural or otherwise. In pursuance of the provisions the notification -G.O.Ms. No. 297 was issued to extend the Act to the class of establishments mentioned in column 1 of the Schedule thereto which in paragraph 3(iii) included 'shops'. Since it is the case of the respondent that the appellant is covered under this category, it has to be seen as to whether the appellant can be regarded as 'shop' for the purposes of the Act. The other question, faintly urged by Mr. Srinivasa Murthy that shop is not an establishment so as to invite the provisions of the Act, has rightly not been seriously pursued in view of the decisions of the Apex Court upholding other different establishments as being shops covered under the Act. The two decisions placed before us as to the meaning of the 'shop' are Cochin Shipping Co. v. E.S.I. Corporation (1993-IILLJ-795) (SC) and Employees' State Insurance Corpn. v. R.K. Swamy (1994-I-LLJ-636) (SC). In the first case the Court relied upon an earlier decision - International Ore & Fertilizers (India) Pvt. Ltd. v. E.S.I Corpn.(1988-I-LLJ-235) (SC) where the meaning of the words 'shop' was examined in detail and the Court adopted the approach that 'while construing a welfare legislation like the Act and the notification issued thereunder a liberal construction should be placed on their provisions so that the purpose of the legislation may be allowed to be achieved rather than frustrated or stultified.' This approach was confirmed in the Cochin Shipping case (supra) taking the view 'as rightly contended by the learned counsel for the respondent, the object is to envelope as many establishments as possible without leaving any room for doubt. That is precisely what the notification intends to do'. The question for consideration in the case was whether the Cochin shipping Co. could be called as shop. The Court pointed out that the company was carrying on stevedoring, clearing and forwarding operations. Clearing the documents, even it be in the custom house, is necessary for the export or import of goods and these services are part of the carrier's job. It cannot be gainsaid that the appellant is rendering services to cater the needs of exporters and importers and others who want to carry thegoods further. Therefore, the Court held, it is a shop carrying on a systematic economic or a commercial activity,
4. In R.K.Swamy's case (supra) the Court referred to another earlier decision M/s Hindu Jea Band v. Regional Dir., E.S.I. Corpn., Jaipur (1987-I-LLJ-502) (SC) and accepted the view taken that shop is 'A place where the services are sold on retail basis.'
5. 'Shop' has thus received, through judicial interpretation, an expanded meaning not necessarily confined to the traditional concept of a shop as a premises where retail trading activity is carried out. The very definition of shop in A.P. Shops & Establishments Act inter alia defines it to be a premises where services are rendered to the customers. Keeping in view the beneficial and welfare intendment of the Statute and the purpose to cover as many establishments possible, shop has to be taken as a premises where any economic activity and some sort of customer service is carried out. It is in that context to be seen whether the appellant can lawfully contend as not rendering such services and to be outside the Act. A perusal of the order of the E.I. Court shows the finding to have been reached that as per its memorandum of association the club carries on the business of race club in all its branches. It makes profit for the sale of tickets and also has a share in the bettings. The conducting of the regular races and race bettings are open to all. Thus, the appellant makes the business of rendering service to all ticket purchaser customers to participate in the race which it conducts and collects a share on the bettings. That definitely is a service rendered to one and all who care to come and purchase ticket and put money in betting. Because of such fact the respondent (sic. appellant) would undoubtedly be a shop as per the notification.
6. Mr. Sinivasa Murthy has placed reliance on Dr. R.K. Lakshmanan v. State of T.N. 1996 2 SCC 226 but we fail to see how that decision is of any help in the context. In the case, the Supreme Courtheld that horse racing within the premises of Madras Race Club is neither gaming nor gambling but is a game of 'mere skill' and therefore not prohibited under the Madras Police Act or Madras Gaming Act. In the case the Court explained thatif the skill predominates in the game it is not gambling. It would be so where the dominantelement in the game is chance only. The question that arises before us was not before the Supreme Court.
7. The next question that has been urged is that the claim of dues from March 30, 1975 to December 31, 1991 is barred by limitation as no due more than three years old can be collected. Admittedly, such question was not raised before the E.I. Court and is being raised for the first time before us. Developing the submission, Mr. Srinivasa Murthy urges Article 137 of the Limitation Act, 1963 to be applicable for which any dues found against the appellant are not collectible after three years. Reliance is placed by him on a decision of the Madras High Court in Gemini Studios, Madras v. E.S.I. Corporation (1970-II-LLJ-243) wherein the learned single Judge of the Court held E.S.I. Corporation as not being entitled to determ i ne any dues on an adhoc basis as being payable by the employer unless the dispute in that regard is settled under Section 75 of the Act by the Insurance Court. It was held that dues determined on adhoc basis could not be collected under the provisions of the Revenue, Recovery Act and that Article 137 of the Limitation Act prescribing the period of limitation of three years from the cause of action bars recovery of any arrears of contribution beyond three years. The submission is resisted by the learned Standing Counsel for the respondent placing reliance on a decision of this Court in Adoni Cotton Mills v. E.S.I. Corpn., Hyderabad 1975 Labour Indtl.Cases 1037 that Article 137 of the Limitation Act only applies to Courts governed by the Code of Civil Procedure, but does not apply to proceedings before the E.I. Court. In Kerala S.E. Board v. T.P. Kunhaliumma AIR 1977 SC 282 the Supreme Court decided that Article 137 of the Limitation Act cannot be interpreted on the principle of ejusrdem generis to apply only to applications made under the Code of Civil Procedure. It is applicable to any application under any law, but the application has to be made to a Court for the reasons that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when a Court is closed and extension of prescribed period if applicant or appellant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application during such period. In the case, the Court concluded that Article 137 ofthe Limitation Act applies to any petition orapplication filed under any Act in a Civil Court.Whether E.I. Court is a Civil Court and Article137 would apply to the applications made to itdoes not arise in this case to decide though Section78 of the Act vests, for the purposes stated therein,all the powers of the Civil Court and deems it tobe a Civil Court within the meaning of Section195 and Chapter 26 of the Criminal ProcedureCode, as, at any rate, Article 137 would have noapplication in view of the special law of limitationapplicable to E.I. Court under Section 77(1 -A) ofthe Act. For the purposes of limitation, hence theperiod to approach the E.I. Court is three years.Section 45B of the Act vests the statutoryauthority in the Corporation to recover the arrearsof contribution as arrears of land revenue. TheAct does not prescribe any period of limitation forinitiation of the proceeding. Under the scheme ofthe Act, Section 40 casts an absolute duty uponthe employer to pay both his and the employee'scontribution. Under Section 43 of the Act, themode of payment of contribution is regulated underthe regulations. Under Regulation 10-B of theEmployees State Insurance (General) Regulations,1950, duty is cast on the establishment to whichthe Act applies for the first time and to which anemployer's code No. is not yet allotted, to furnishto the appropriate Regional office not later than15 days after the Act becomes applicable, to thefactory or establishment, a declaration ofregistration in Form 10. Under Section 44 of theAct, the employer has a duty to furnish returnsand to maintain registers. Section 45A of the Actvests authority in the Corporation to determine theamount of contribution payable in respect of theemployees on the basis of the information avai lableto it. It is thus abundantly clear that the entirescheme of the Act is that as soon as the Actbecomes applicable to the establishment by anotification issued under Section 1(5), it becomesthe responsibility of the employer to get itselfregistered and start making the contributions.Making of the contribution is not dependent uponany notice from the Corporation. As a matter offact, no specific period of limitation has beenprescribed in the Act to bar a proceeding ofrecovery presumably for the reason that thelegislation being one for social security of theemployees, the benefit available to them cannotbe allowed to be defeated only by the technicaldefence of limitation. A Division Bench of this Court considered the matter in W.P. No. 5230 of 1978 decided on March 17, 1979 extracted in short notes in 1979(1) APLJ 45 (SN) holding that Section 45B of the Act enables recovery of the contribution as arrears of land revenue and no period of limitation is prescribed for recovering the contribution. The liability to pay employer's contribution does not depend upon the benefit which the Corporation renders to the employees. It is a statutory liability which arises the moment the conditions laid down in the Act are fulfilled. The mere fact that during a particular period employees did not claim or receive any benefit or amenities is no answer to the liability of the petitioner to pay contribution.
8. As regards the liability of the Corporation to approach the E.I. Court for determination of the contribution payable, the Court in the very same decision negatived the contention holding that if an employer chooses to dispute the liability there is the forum prescribed under the Act for determination of that dispute viz., the E.I. Court, and it is given a right to file an application under Section 75 of the Act before that Court. Unless and until such dispute is raised before the proper forum, the amount claimed by the Corporation must be considered as one payable by the employer.
9. In Employees Stale Insurance Corpn. v. Hotel Kalpaka International (1993-I-LLJ-939) (SC) it was explained that under Section 40 of the Act the primary liability is on the employer to pay not only his but also the employee's contribution and therefore he cannot be heard to contend that since he had not deducted the employee's contribution on the wages of the employees, he could not be made liable for the same. The object of making a deeming entrustment under Sub-section (4) of Section 40 of the Act will be altogether rendered nugatory if such a contention is to be accepted. The Court also ruled that the demand for recovery of the arrear contribution can be enforced also against closed businesses and that the fact of the employees having left the services because of the closure is a wholly immaterial consideration. The notice could be issued even after the closure. For such reasons, the question of limitation raised by Mr. Srinivasa Murthy has no substance and has to be rejected.
10. The next question is whether even if nolimitation is prescribed, steps for recovery can be initiated against an employer after any length of time. In the present case, the appellant-club was purported to be included in the net of the Act since March 26, 1975. Notice was issued to the club on January 29, 1992 calling upon it to pay the contributions from the year 1975.
11. It is well settled law that where power is vested under a Statute in an authority to be exercised at anytime, it has to be exercised within a reasonable time even if no period of limitation is prescribed, of the cause of action necessitating exercise of the power. The Supreme Court itself acknowledged such approach under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 dealing with recovery of damages under Section 14B of that Act in R.P.F. Commissioner v. M/s. K. T. Rolling Mills Pvt. Ltd. (1995-I-LLJ-882) (SC) and observed at p. 883 :
'There can be no dispute in law that when a power is conferred by Statute without mentioning the period within which it could be invoked, the same has to be done within reasonable period, as all powers must be exercised reasonably, and exercise of the same within reasonable period would be fact of reasonableness.'
The principle decided in relation to the EPFAct applies identically to action taken under theAct and hence it has to be held that absence of aspecific provision of limitation for initiation ofthe revenue recovery proceedings does not vestthe authorities under the Act to initiate such actionafter lapse of any length of time and that the powerhas to be exercised within a reasonable time thoughwhat is reasonable period in any particular casewould vary from facts to facts. In the case beforetheir lordships in M/s. K.T. Rolling Mills Pvt.Ltd.(supra), delay of 12 years was not consideredunreasonable in view of the large number ofestablishments existing in Maharashtra, which inthe year 1985 was 22, 189, and there was only oneRegional Provident Fund Commissioner whichmade it understandable of action not being takenfor any reasonably long period. So far as the presentcase is concerned, admittedly action was firstcontemplated against the appellant after lapse of15 years for the first time with the Inspectorvisiting the premises on June 27, 1990, but thatitself is not a determining factor since the burden is on the employer to deposit the contributions even without any requisition having been made by the Corporation. It is the look-out of the employer to make the deposits in time. As has been held by the Supreme Court, calling upon by the Corporation to make the deposits is only by way of a reminder. Though it is so, yet it would be seen that inspite of the notification on March 26, 1975, the appellant had not thought itself as having the liability to contribute under the Act treating itself as a shop as covered under the notification. The expanded meaning of 'shop' came in the year 1987 when the decision in Hindu Jea's case (supra) was rendered. Prior to it, there was no authoritative pronouncement of the expression being understood in a larger context and being applicable to other est-ablishments which are traditionally not regarded as shops in the common parlance. There havingbeen no such concept earlier, it can be said that the appellant reasonably did not consider itself as having the responsibility under the Act to make the contributions and hence to make it liable to pay the contributions from the year 1975 to 1986 would be unreasonable. Though in the present proceedings the respondent has not yet started the recovery proceedings, yet initiation of such proceedings from the year 1975 hence can be held for the reason, unreasonable. But if the demand is levied from the year 1987 onwards, no such exception can be taken.
12. In view of these considerations, the appeal5 is partly allowed though holding the appellant asbeing liable under the Act to make thecontributions, yet directing that its liability inrespect of both the contributions can beenenforced against it only from the year 1987. Nocosts.