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TMI Blog1983 (3) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... ombay Employees' Insurance Court Rules, 1959. This application was dismissed by the industrial Court vide order dated 29th of June, 1978. Being aggrieved by the said order the applicant Shashikant filed a First Appeal before this Court bearing First Appeal No. 80 of 1979 which was heard and decided by S.K. Desai, J., vide judgment dated 10th of July, 1978. Desai, J., held that the trial Court was wrong in coming to the conclusion that it had no power to condone the delay of 14 days in filing the application for restoration. He also held that the applicant has shown sufficient cause for such delay and also for remaining absent on the date of hearing. Therefore, exercising the powers of the Appellate Court Desai, J., set aside the impugned order dated 29th June, 1978 and restored the application to file. It is this order in the First Appeal No. 80 of 1979 dated 10th July, 1979 which is challenged in this letters patent appeal by the appellants. 2. Shri Jayakar the learned Counsel appearing for the appellants Corporation contended before us that the Employees Insurance Court is a domestic Tribunal and is not a Court in the strict sense of the term, and therefore, the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led under Rule 26 of the said Rules for restoration of the application and we propose to confine our judgment to this limited area and do not propose to decide any wider question. 4. As to when a particular Tribunal could be held to be a Court is by now well settled. In Thakur Jugal Kishore's case, the Supreme Court held that the Assistant Registrar Functioning under the Bihar Orissa Co-operative Societies Act is a Court subordinate to the High Court for the purpose of section 3 of the Contempt of Court Act. The said decision of the Supreme Court was followed by the Full Bench of this Court in Bapusaheb Balasaheb Patil's case wherein it is observed that mainly two criteria have been laid down by the decided cases in order to constitute the Tribunal a Court. In the first place the Tribunal or an Authority would be a Court if it is given a power to give a definitive judgment or a decision which has finality and authoritativeness that would bind the appearing before it so far as the rights litigated before it are concerned and secondly the appointment of the Tribunal or an authority as well as the source of its power must be judicial power of the State coming to it by the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il Court. Section 79 provides for the appearance of legal practitioners before the said Court. By section 81 the Employees Insurance Court is given a power to submit any question of law for decision to the High Court and by section 82 an appeal is provided to the High Court against the order of the Employees Insurance Court. Thus the Insurance Court upon which power to perform judicial functions has been conferred is recipient of that power form the State, that is to say the statute itself and secondly while performing the judicial functions that are entrusted to it by law, it had been given power to give definitive decisions having finality or authoritativeness which would be binding on the parties appearing before it. The State Government has framed the Rules known as Bombay Employees Insurance Court Rules, 1959 in exercise of the power conferred on it by section 96 of the Act. In this context it is pertinent to note that section 78(2) and section 96(1)(b) practically cover the same area and field i .e. procedure which the Employees Insurance Court is expected to follow. The relevant rule with which we are concerned in this appeal is Rule 26 which reads as follow : 26. Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks fit and may proceed with hearing of the case or appoint a day for proceeding with the same . The other Rules of the Rules deal with the constitution of courts, procedure and execution of order , method of filing applications, summoning the witnesses, statement and production of evidence, method of recording evidence, pronouncement of order including order to be passed on compromise of suit and by Rule 38 a finality is given to the orders passed by the Court, save as provided in section 82 of the Act. Then comes Rule 47 which reads as follows : 47. Provisions in the Code of Civil Procedure, 1908 (V of 1908), etc. to apply.---In respect of matters relating to procedure or admission of evidence for which no specific provision is made in these Rules, the provisions of the Code of Civil Procedure, 1908 (V of 1908), including the Rules made thereunder, and the Indian Evidence Act, 1872 (1 of 1872), shall, so far as may be apply to proceedings under the Act. By section 75(3) the jurisdiction of the Civil Court to decide or deal with any question or dispute which by or under the Act is to be decided by Medical Board or Medical Appellate Tribunal or by the Employee Insurance C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etting aside the order of dismissal. Under Article 122 of the Limitation Act precisely the same period of limitation is prescribed for restoration of application which is dismissed for default of appearance or for want of prosecution. Therefore, this is a case where it could safely be said that the limitation prescribed is the same as prescribed by the Limitation Act. If this is so then Part II of the Limitation Act, including section 5 must apply to such applications. In its turn section 3 of the Limitation Act is made subject to the provisions of sections 4 to 24, which includes section 5 of the said Act. Therefore, the provisions of section 5 must apply to an application filed under Rule 26(5) of the Rules. Even if it is held that the Employees State Insurance Act, 1948 read with Rule 26(5) is a special law which prescribes a period of limitation different from the period prescribed the schedule to the Limitation Act, then also by virtue of section 29(2) of the Limitation Act, provisions of section 5 of the said Act shall apply to such applications. It is not disputed nor it could be disputed that there is no express exclusion by the Employees State Insurance Act so far as the p ..... 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