IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 23RD OCTOBER 2009 / 1ST KARTHIKA 1931 Ins.APP.No. 86 of 2007() --------------------------------- IC.100/2004 of EMPLOYEES INSURANCE COURT, ALAPPUZHA .................... APPELLANT (S): RESPONDENT: ------------------------------- THE REGIONAL DIRECTOR, E.S.I CORPORATION PANCHADEEP BHAVAN, NORTH SWARAJ ROUND, THRISSUR. BY ADV. MR.P.SANKARANKUTTY NAIR RESPONDENT(S): APPLICANT: ------------------------- KOCHI REFINERIES LIMITED POST BOX NO.2, AMBALAMUGAL, REPRESENTED BY ITS DEPUTY GENERAL MANAGER (LEGAL) THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 23/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N.KRISHNAN, J. ........................................... Ins.A.NO.86 OF 2007 ............................................. Dated this the 23rd day of October, 2009 J U D G M E N T This is an appeal preferred against the order of the Insurance Court, Alappuzha in I.C.No.100/2004. It was an application filed seeking a declaration that Ext.P7 order imposing damages of Rs.20,007/= for the delayed payment of the contribution as unsustainable. The Employees Insurance Court after consideration of the entire materials held that there are no grounds to levy the damages. 2. The contention of the petitioner is that the delay was caused only on account of the reasons beyond control and there was no contumacious conduct or deliberate evadement of the payment. The matter came up for consideration before a Division Bench of this Court reported in Employees State Insurance Corporation v. Quetco Co. Ltd. (ILR 2008(3) Page 132 ). This Court held that mere delay in making the payment is not a ground to impose damages and lack of financial capacity to pay the amount : 2 : Ins.A.NO.86 OF 2007 can also be taken as one of the grounds to waive the damages. The principle behind Section 85 B of the Employees State Insurance Act is to make the employers to pay the contribution in time but the power to impose damages is of a plenary nature and therefore the court has to exercise judicial power imposing such damages. The word used under Section 85 B of the Act is “may and not shall” and the Apex Court had cautioned that the said discretionary jurisdiction has to be exercised utmost judicially. This Court had also taken the view that mere delay in payment is not sufficient but there must be a contumacious conduct or deliberate evadement of the payment. The Apex Court also held that there must be mens rea or mental element to evade the payment. So far as this case is concerned, as found by the trial court there is no means rea nor there is any contumacious conduct or deliberate intention to evade payment. When it is so, it is not a fit case where the damages can be imposed. Therefore, I do not find any ground to interfere with the well considered order of the Employees Insurance Court : 3 : Ins.A.NO.86 OF 2007 and therefore, the appeal lacks merit and the same is dismissed. M.N.KRISHNAN, JUDGE cl