IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 MFA.No. 1237 of 2001(A) ----------------------- IC.57/2000 of EMPLOYEES INSURANCE COURT, ALAPPUZHA .................... APPELLANT/OPPOSITE PARTY: ------------------------------------------------ THE REGIONAL DIRECTOR E.S.I. CORPORATION NORTH SWARAJ ROUND THRISSUR BY ADV. SRI.T.V.AJAYAKUMAR RESPONDENT: APPELLANT: --------------------------------------------- M/S. GTN TEXTILES LTD. ERUMATHALA P.O., ALWAYE REP. BY ITS DEPUTY GENERAL MANAGER (P & IR) SHRI. P.K.UNNIKRISHNAN ADV. SRI.E.K.NANDAKUMAR FOR R1 SRI.A.M.SHAFFIQUE (SR.) FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 15/1/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO: 8437 OF 2001 IN M.F.A. NO: 1237 OF 2001 DISMISSED: 15/1/2009 SD/- K. BALAKRISHNAN NAIR, JUDGE SD/- K. SURENDRA MOHAN, JUDGE jj /TRUE COPY/ P.S. TO JUDGE K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ M.F.A NO: 1237 OF 2001 ----------------------------------------------------------------------------------- Dated this the 15th January, 2009. JUDGMENT BALAKRISHNAN NAIR, J. ESI Corporation is the appellant. There was delay from the part of the respondent-company to pay ESI contributions payable in respect of its employees. So, the appellant imposed damages also for the defaulted payments. The company appealed. The ESI Court allowed the appeal. Hence this miscellaneous first appeal by the ESI Corporation against the said judgment. Recently a Division Bench of this Court in E.S.I.Corporation v. Qetcos Ltd {2008(3) KLT 336} has held that the imposition of damages under Section 85B of the E.S.I Act read with Regulation 31C of Employees State Insurance (General) Regulation, 1950 is not automatic. The power to impose damages can be invoked and exercised only when the payment has been delayed wilfully. As in the said case, in this case also all the payments were made regularly. There was delay in payment of contribution in relation to certain items like overtime allowance etc. So we feel that the judgment of the Division Bench mentioned M.F.A. No: 1237/2001 2 above will squarely apply to the facts of this case. Accordingly the M.F.A is dismissed. K.BALAKRISHNAN NAIR Judge K. SURENDRA MOHAN Judge jj K. BALAKRISHNAN NAIR & K. SURENDRA MOHAN, JJ. ----------------------------- M.F.A.NO: 1237 OF 2001 ----------------------------- JUDGMENT Dated: 15th January, 2009.