FAO No.1065 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. FAO No.1065 of 2009 (O&M) Decided on 14.10.2010. Employees State Insurance Corporation, Regional office,Sector 16,Faridabad --Appellant vs. Parle Biscuits Limited,Jhajjar -- Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Vikas Suri,Advocate,for the appellant Mr.J.S.Sidhu,Advocate,for the respondent Rakesh Kumar Jain, J, (Oral) This appeal is directed against order dated 08.12.2008 passed by Civil Judge (Senior Division),Rohtak, by which a petition filed by the respondent under Section 85 (B) of the Employees State Insurance Act, 1948 (for short,'the Act') for quashing the order dated 25.7.2000 (Ex.P-42) has been allowed and the impugned order has been set aside. Learned counsel for the appellant,inter-alia, contends that as per Section 39 of the Act, the respondent is liable to deposit all the FAO No.1065 of 2009 (O&M) 2 contribution of employer and employee with the appellant Corporation and if the same is not deposited in time, he is liable to pay interest in terms of Section 39 (5) of the Act. He further submits that though the respondent has deposited the amount of contribution voluntarily because of a notice dated 16.5.2000, but the finding recorded by the Court below is that since the respondent is not a habitual defaulter, therefore, he is not liable to pay damages. Learned counsel for the respondent, however, submits that the amount of penalty along-with interest was paid, but thereafter notice of the same date was issued on 16.5.2000 for payment of damages, to which a detailed reply was submitted, but still by virtue of order Ex.P-42, damages have been imposed. He further submits that Section 85-B of the Act does not envisage mandatory levy of damages, as the word used in Section 85-B is 'may recover'. In this regard, learned counsel for the respondent has relied upon a decision of the Supreme Court in the case of Employees' State Insurance Corporation Vs. HMT Ltd. and another (2008) 3 SCC 35, in which it has been held that “penal provision should be construed strictly. Only because a provision has been made for levy of penalty, the same by itself would not lead to the conclusion that penalty must be levied in all situations. Such an intention on the part of the legislature is not decipherable from Section 85-B of the Act. When a discretionary jurisdiction has been conferred on a statutory authority to levy penal damages by reason of an enabling provision, the same can not be construed as imperative. Even otherwise, an endeavour should be made to construe such penal provisions as discretionary, unless the statute is held to be mandatory in character” . At this stage, both the parties are ad-idem that the order passed by the Court below as well as under Section 85-B of the Act be set aside. Hence, the order dated 25.7.2000 Ex.P-42 is set aside and the case is remitted back to the authority concerned. with a direction to decide the matter afresh after taking into consideration the reply filed by the respondent herein. Since the mater is remitted back, the FAO No.1065 of 2009 (O&M) 3 respondent is at liberty to file detailed reply, if so advised. The parties are directed to appear before the authority concerned on 15.11.2010. With these observations, the present appeal is disposed of. 14.10.2010 (Rakesh Kumar Jain) RR Judge