Hamosons Apparels Pvt. Ltd. vs The Joint Director Employees State Insurance Corporation and The Deputy Director Employees State Insurance Corporation

K. Chandru, J.—The Petitioner in these two Writ Petitions is the oneand the same employer. In the first Writ Petition, the challenge is to the

recovery notice dated 22.12.2003,wherein the Petitioner establishment was levied with damages u/s 85-B of the ESI Act for the sum amounting to

Rs. 1,42,967. The said Writ Petition was admitted on 1.3.2004. Pending the Writ Petition, this Court granted an interim stay on condition that the

Petitioner pays 50% of the amount claimed. It is now stated by the learned Counsel for the Petitioner that the said condition has been complied

with.

However, the same Petitioner filed W.P. No. 5282of 2004. In that Writ Petition, the relief claimed is for a writ in the nature of mandamus

directing the the Respondent to waive the interest imposed u/s 39(5) of the ESI Act, 1948 r/w Regulation 31 of ESI(General) Regulation 1950

pursuant to the proceedings dated 23.12.2003. By the proceedings dated 23.12.2003, the Petitioner was directed to pay interest on the delayed

payment, which amount worked out to Rs. 86,210/-. The impugned order contained the annexure in which the elaborate details of delay in paying

the subscription have been mentioned and in respect of the delay that is pointed out, it ranges between one year to six years. When the matter

came up for admission, learned Counsel for the Petitioner agreed to amend the prayer by filing an appropriate application. But, however, no such

application was filed to amend the prayer. This Court on 5.3.2004directed the Petitioner to deposit 50% of the amount as a condition for grant of

stay. Subsequently, as there was no representation on the subsequent hearings, the stay application got dismissed on 23.12.2004. An application

being filed for restoration of WPMP No. 6133 of 2004 and the said application was restored by order dated 7.1.2005. The learned Counsel for

the Petitioner states that the amount has also been paid.

On notice from this Court, the Respondent has filed a counter affidavit dated 30.12.2004. In the counter affidavit, it was claimed that right from

10/94 to 12/2000,the Petitioner has been consistently making delayed payments, thereby infracting the provisions of the Act. If the statutory

payments are not made in time, the Act itself requires payment of interest as well as discretion of the Respondent ESI Corporation to levy

damages. The learned Counsel for the Petitioner stated that the Industry is in bad condition and therefore this Court should show leniency and

waive the balance 50% of the impugned demand, which they are liable to pay. However, the said submission cannot be countenanced by this

Court for more than one reason.

With reference to the payment of interest, the Supreme Court vide its judgment in Goetze (India) Limited Vs. Employees State Insurance

Corporation, , held that in the matter of interest, there cannot be any compromise or private arrangement and Section 39(5) of the ESI Act is

mandatory. In such circumstances, it is necessary to refer to the following passages found in paragraph No. 9, which is as follows:

As there was delay in making the payment of the contribution the Corporation had issued notice on 29.6.1990 at the first instance and thereafter

the order was passed u/s 45-A of the Act on 23.7.1992. The same was challenged before the ESI Court in which an interim stay was granted on

9.10.1992. During the pendency of the matter, there was reverification and the quantum payable by the Appellant was worked out. The liability to

pay interest is statutory. There is no power of waiver. The question of any compromise or settlement does not really arise. Even otherwise the

order of the ESI Court referred to and relied upon by the Appellant is of no assistance to the Appellant. It only noted statement of the Appellant

that he had deposited the contribution payable. The reference to ""no further dues"" is obviously relatable to the contribution payable and nothing

beyond that.

With reference to the payment of damages, the Supreme Court vide its judgment in Emp. State Insurance Corporation Vs. H.M.T. Ltd. and

Another, had stated that Section 85-B of the Act empowers the Corporation to recover damages in the event of employer fails to make payment

of the amount due in respect of contribution. The only qualification being the amount of levy shall not exceed to total contribution. In paragraphs 25

and 26 observed as follows:

The statute itself does not say that a penalty has to be levied only in the manner prescribed. It is also not a case where the authority is left with

no discretion. The legislation does not provide that adjudication for the purpose of levy of penalty proceeding would be a mere formality or

imposition of penalty as also computation of quantum thereof became a foregone conclusion. Ordinarily, even such a provision would not be held

to providing for mandatory imposition of penalty, if the proceeding is an adjudicatory one or compliance with the principles of natural justice is

necessary hereunder.

Existence of mens rea or actus reus to contravene a statutory provision must also be held to be a necessary ingredient for levy of damages

and/or the quantum thereof.

Though the Supreme Court emphasis mens rea or actusreus for contravening the statutory provision as necessary ingredient, in the present case,

the delay is not few days or few weeks, but it ranges from one year to 6 years. As rightly contended in the counter affidavit, from 10/94

to12/2000, for a period of six years, there has been a consistent delay in making payment. Therefore, this is nota case where this Court can show

indulgence. Second proviso to Section 85-B of the ESI Act empowers the Corporation to grant waiver or reduction. The condition precedent for

invoking the 2nd proviso is set out therein. In the case of the Petitioner, it is not their claim that there has been a scheme of rehabilitation by way of

a law covered by SIC Act.

In the absence of any enforceable legal right, the plea made by the Petitioner cannot be countenanced by this Court. Hence, both the Writ

Petitions stand dismissed. No costs. The connected Miscellaneous Petitions are closed.