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. 8 of 2009() ----------------------- IC.28/2005 of EMPLOYEES INSURANCE COURT, ALAPPUZHA .................... APPELLANT/ RESPONDENT IN THE INSURANCE CASE ------------------------------ THE REGIONAL DIRECTOR, EMPLOYEES STATE INSURANCE CORPORATION, THRISSUR. BY ADV. SRI.T.P.M.IBRAHIM KHAN, SC, ESI CORPN. RESPONDENT/ APPLICANT ------------------------ M/S. HIGH TECH SEALS (P) LIMITED, INDUSTRIAL DEVELOPMENT AREA, MUPPATHADAM.P.O, ALUVA. ADV. SRI.A.V.XAVIER FOR R1 SRI.K.JOLLY JOHN FOR R1 THIS INSURANCE APPEAL HAVING COME UP FOR ADMISSION ON 03/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. ........................................... Ins.A.No.8 OF 2009 ............................................. Dated this the 3rd day of November, 2009 J U D G M E N T This is an appeal preferred against the order of the Employees Insurance Court, Alappuzha in I.C.No.28/2005. The applicant before the said court moved an application for setting aside Ext.P1 order imposing damages by way of penalty. The Employees Insurance Court had considered the matter elaborately and the factual matrixs in para 8 of the order. The applicant establishment was a small scale industry started with the aid of the Government. There was delay in obtaining power. Similarly it is seen that it had borrowed huge sums from KSFE etc. It is also stated that there was a labour dispute and therefore, on account of the reasons beyond control of the establishment, it was not in a position to pay the dues in time. The learned E.I.Court has referred to the decisions in para-10. All these decisions were considered by a Division Bench of this Court in Employees State Insurance Corporation v. Quetco Co.(ILR 2008 (3) Page 132) and held that mere delayed payment shall not be a : 2 : Ins.A.No.8 OF 2009 ground to impose damages. Further that it is the discretionary jurisdiction vested which has to be exercised judiciously and further that there must have been a contumacious conduct or deliberate evadement of payment or mens rea not to pay. From the facts and circumstances available in this case, the establishment had difficulties from the inception itself and had underwent various stages of difficulty and therefore, there was no deliberate conduct to evade payment and therefore, the discretionary jurisdiction vested under Section 85 B when exercised judiciously, would only result in favour of the applicant which has been properly done by the E.I.Court. Therefore, there is nothing to interfere with the said decision. The appeal lacks merit and the same is dismissed. M.N. KRISHNAN, JUDGE cl : 3 : Ins.A.No.8 OF 2009 : 4 : Ins.A.No.8 OF 2009