IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.01.2011 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.Nos.4657 and 5282 of 2004 & W.P.M.P.Nos.5473 and 6133 of 2004 1 M/S.HAMOSONS APPARELS PVT.LTD REP BY ITS MANAGING DIRECTOR MR.ABDUL RAZAK OSMAN NO.51, JAWAHARLAL NEHRU SALAI CHENNAI.97 .. PETITIONER in both W.Ps. Vs 1 THE JOINT DIRECTOR EMPLOYEES` STATE INSURANCE CORPORATION NO.143,STERLING ROAD CHENNAI.34. .. RESPONDENT in W.P.4657/2004 1 THE DEPUTY DIRECTOR EMPLOYEES` STATE INSURANCE CORPORATION NO.143,STERLING ROAD CHENNAI.34. .. RESPONDENT in W.P.5282/2004 Prayer in W.P.No.4657/2004: Petition under Article 226 of the Constitution of India praying for a Writ of Mandamus directing the respondent to waive the damages imposed under Section 85(B) (i) of the ESI Act 1948 by its order in No.TN/D-18/INS III/51-36230-101/1881/2003 dated 22.12.03. Prayer in W.P.No.5282/2004: Petition under Article 226 of the Constitution of India praying for a Writ of Mandamus directing the respondent to waive the interest imposed under Section 39(5) of the ESI Act, 1948 r/w Regulation 31 of ESI (General) Regulation 1950 in its proceedings in TN/INS III/51:36230-101/C 18 Int./1494/2003 dated 23.12.2003. For Petitioner :: Mr.A.N.P.Mohamed Iqbal For Respondents :: Mr.K.C.Ramalingam https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER The petitioner in these two Writ Petitions is the one and the same employer. In the first Writ Petition, the challenge is to the recovery notice dated 22.12.2003, wherein the petitioner establishment was levied with damages under Section 85-B of the ESI Act for the sum amounting to Rs.1,42,967. The said Writ Petition was admitted on 1.3.2004. Pending the Writ Petition, this Court granted an interim stay on condition that the petitioner pays 50% of the amount claimed. It is now stated by the learned counsel for the petitioner that the said condition has been complied with. 2. However, the same petitioner filed W.P.No.5282 of 2004. In that Writ Petition, the relief claimed is for a writ in the nature of mandamus directing the the respondent to waive the interest imposed under Section 39(5) of the ESI Act, 1948 r/w Regulation 31 of ESI (General) Regulation 1950 pursuant to the proceedings dated 23.12.2003. By the proceedings dated 23.12.2003, the petitioner was directed to pay interest on the delayed payment, which amount worked out to Rs.86,210/-. The impugned order contained the annexure in which the elaborate details of delay in paying the subscription have been mentioned and in respect of the delay that is pointed out, it ranges between one year to six years. When the matter came up for admission, learned counsel for the petitioner agreed to amend the prayer by filing an appropriate application. But, however, no such application was filed to amend the prayer. This Court on 5.3.2004 directed the petitioner to deposit 50% of the amount as a condition for grant of stay. Subsequently, as there was no representation on the subsequent hearings, the stay application got dismissed on 23.12.2004. An application being filed for restoration of WPMP No.6133 of 2004 and the said application was restored by order dated 7.1.2005. The learned counsel for the petitioner states that the amount has also been paid. 3. On notice from this Court, the respondent has filed a counter affidavit dated 30.12.2004. In the counter affidavit, it was claimed that right from 10/94 to 12/2000, the petitioner has been consistently making delayed payments, thereby infracting the provisions of the Act. If the statutory payments are not made in time, the Act itself requires payment of interest as well as discretion of the respondent ESI Corporation to levy damages. The learned counsel for the petitioner stated that the Industry is in bad condition and therefore this Court should show leniency and waive the balance 50% of the impugned demand, which they are liable to pay. However, the said submission cannot be countenanced by this Court for more than one reason. https://hcservices.ecourts.gov.in/hcservices/ 4. With reference to the payment of interest, the Supreme Court vide its judgment in Goeize (India) Limited vs. Employees' State Insurance Corporation reported in (2008) 8 SCC 705, held that in the matter of interest, there cannot be any compromise or private arrangement and Section 39(5) of the ESI Act is mandatory. In such circumstances, it is necessary to refer to the following passages found in paragraph No.9, which is as follows: "9. As there was delay in making the payment of the contribution the Corporation had issued notice on 29.6.1990 at the first instance and thereafter the order was passed under Section 45-A of the Act on 23.7.1992. The same was challenged before the ESI Court in which an interim stay was granted on 9.10.1992. During the pendency of the matter, there was reverification and the quantum payable by the appellant was worked out. The liability to pay interest is statutory. There is no power of waiver. The question of any compromise or settlement does not really arise. Even otherwise the order of the ESI Court referred to and relied upon by the appellant is of no assistance to the appellant. It only noted statement of the appellant that he had deposited the contribution payable. The reference to "no further dues" is obviously relatable to the contribution payable and nothing beyond that." 5. With reference to the payment of damages, the Supreme Court vide its judgment in Employees State Insurance Corporation vs. HMT Ltd., and another reported in (2008) 3 SCC 35 had stated that Section 85-B of the Act empowers the Corporation to recover damages in the event of employer fails to make payment of the amount due in respect of contribution. The only qualification being the amount of levy shall not exceed to total contribution. In paragraphs 25 and 26 observed as follows: "25. The statute itself does not say that a penalty has to be levied only in the manner prescribed. It is also not a case where the authority is left with no discretion. The legislation does not provide that adjudication for the purpose of levy of penalty proceeding would be a mere formality or imposition of penalty as also computation of quantum thereof became a foregone conclusion. Ordinarily, even such a provision would not be held to providing for mandatory imposition of penalty, if the proceeding is an adjudicatory one or compliance with the principles of natural justice is necessary thereunder. https://hcservices.ecourts.gov.in/hcservices/ 26. Existence of mens rea or actus reus to contravene a statutory provision must also be held to be a necessary ingredient for levy of damages and/or the quantum thereof." 6. Though the Supreme Court emphasis mens rea or actus reus for contravening the statutory provision as necessary ingredient, in the present case, the delay is not few days or few weeks, but it ranges from one year to 6 years. As rightly contended in the counter affidavit, from 10/94 to 12/2000, for a period of six years, there has been a consistent delay in making payment. Therefore, this is not a case where this Court can show indulgence. Second proviso to Section 85-B of the ESI Act empowers the Corporation to grant waiver or reduction. The condition precedent for invoking the 2nd proviso is set out therein. In the case of the petitioner, it is not their claim that there has been a scheme of rehabilitation by way of a law covered by SIC Act. 7. In the absence of any enforceable legal right, the plea made by the petitioner cannot be countenanced by this Court. Hence, both the Writ Petitions stand dismissed. No costs. The connected Miscellaneous Petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ajr To 1 THE JOINT DIRECTOR EMPLOYEES` STATE INSURANCE CORPORATION NO.143,STERLING ROAD, CHENNAI.34. 2 THE DEPUTY DIRECTOR EMPLOYEES` STATE INSURANCE CORPORATION NO.143,STERLING ROAD CHENNAI.34. +4ccs to Mr.A.N.F.Md.Iqbal,Advocate Sr 4315,4316 +2ccs to Mr.K.C.Ramaliangam, Advocate Sr 4598,4599 JP(CO) km/10.2. W.P.No.4657 and 5282 of 2004 https://hcservices.ecourts.gov.in/hcservices/