IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 Ins.APP.No. 33 of 2007() ------------------------ IC.42/2004 of EMPLOYEES INSURANCE COURT, ALAPPUZHA .................... APPELLANT/RESPONDENT: --------------------------------- THE REGIONAL DIRECTOR, E.S.I.CORPORATION PANCHADEEP BHAVAN, THRISSUR-20. BY ADV. SRI.P.SANKARANKUTTY NAIR RESPONDENT(S): APPLICANT: ------------------------------------ M/S.CHOICE CANNING COMPANY, PALLURUTHY, KOCHI-5. THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 03/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = INS.APPEAL NO. 33 OF 2007 = = = = = = = = = = = = = = = Dated this the 3rd day of November, 2009. J U D G M E N T This appeal is preferred against the order of the Employees Insurance Court, Alappuzha in I.C.42/04. The said application was filed for setting aside the order imposing damages of Rs.41,631/-. The E.I.Court on a consideration of the materials held in favour of the applicant and set aside the order. The definite case of the applicant before the Court was that the delay was occasioned due to the pendency of the litigation and the delay in verification of records and ascertaining the actual dues by the respondent, Corporation. The E.I.Court on a consideration of the materials found that the delay is eligible to be excused. The E.I.Court also held that there is no willful omission or contumacious conduct on the part of the employer and therefore damages need not be imposed. The decision of this Court reported in Regional Director, ESI Corporation v. Managing Director, M/s Qetcos Ltd. (ILR 2008 (3) Kerala Series 132) this Court INS.APPEAL NO. 33 OF 2007 -:2:- has considered the scope u/s 85-B relying upon the decision of the Apex Court and held that it is essential to have mensrea to impose damages. The Court also held that the word u/s 85-B is not 'shall' but 'may'. The Apex Court had cautioned that it being a plenary nature it has to be exercised judiciously. As there is no contumacious conduct or mensrea to evade payment I find that the order of the Court below is in accordance with the strict judicial principles which does not call for any interference. Therefore the appeal is dismissed. M.N. KRISHNAN, JUDGE. ul/-