IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 WP(C).No. 26600 of 2009(T) -------------------------- PETITIONER(S): --------------- KRISTHU JAYANTI HOSPITAL, PERUMPPILLY,NJARAKKAL,VYPIN, KOCHI-682 505,REP.BY ITS ADMINISTRATOR. BY ADV. SRI.BECHU KURIAN THOMAS SMT.NISHA JOHN SRI.ENOCH DAVID SIMON JOEL RESPONDENT(S): --------------- 1. STATE OF KERALA, REP.BY SECRETARY,DEPARTMENT OF LABOUR, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. EMPLOYEES STATE INSURANCE CORPORATION, TRIVANDRUM,REP.BY ITS DIRECTOR. 3. THE DEPUTY DIRECTOR, ESI CORPORATION,PANCHDEEP BHAVAN, NORTH SWARAJ ROAD,P.B.NO.2, THRISSUR-680 020. ADV.T.P.M.IBRAHIM KHAN, SC G.P. SHIR.K.C.SANTHOSH KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P(C).No.26600 of 2009 ================== Dated this the 23rd day of September, 2009 J U D G M E N T The petitioner challenges Ext.P4 order passed by the 3rd respondent under Section 85-B of the Employees' State Insurance Act, whereby, damages have been imposed on the petitioner for delayed payment of contributions. The petitioner's contention is that the petitioner had filed an application for exemption from the provisions of the Act before the Government, pending consideration of which, this Court, by Ext.P1 judgment, had permitted the petitioner to keep the contributions payable in a separate account and as soon as the application for exemption was rejected by the Government, the entire amount accrued in the account so maintained by the petitioner was transferred to the ESI Corporation. Therefore, the delay was not willful, but because of the peculiar circumstances as stated above. According to the petitioner, in such circumstances, the petitioner is not liable to pay any damages. 2. I have heard the learned Standing Counsel appearing for the ESI Corporation also. 3. I am of opinion that the remedy of the petitioner against Exts.P4 and P5, which are the order imposing damages under Section 85 and the recovery proceedings thereof, is under Section 75 of the 2 Employees' State Insurance Act, before the Employees' Insurance Court. Therefore, without prejudice to that right, this writ petition is dismissed. To enable the petitioner to file an insurance case and seek interim orders therein, I direct that coercive proceedings against the petitioner for recovery of the disputed amounts shall be kept in abeyance for a period of one month. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge