IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ins.APP.No. 16 of 2009()
1. EMPLOYEES STATE INSURANCE CORPORATION
... Petitioner
Vs
1. M/S.AGREENCE FIBER FOAM (P) LTD
... Respondent
For Petitioner :SRI.T.V.AJAYAKUMAR
For Respondent :SRI.P.M.PAREETH
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :14/01/2010
O R D E R
PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ.
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INS. APPEAL NO.16 of 2009
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Dated this the 14th day of January, 2010.
JUDGMENT
Pius C.Kuriakose, J.
Being aggrieved by the order of the Employees’ Insurance court
setting aside Exhibit .A1 order imposing damages on the respondent
for not having paid contribution collected from the employers on time,
the E.S.I.Corporation is in appeal.
2. We have heard the submissions of learned counsel for the
appellant corporation Sri.T.V.Ajayakumar and Sri.P.M.Pareeth learned
counsel for the respondent. Mr.Ajayakumar submitted that the
Insurance Court set aside Exhibit .A1 order imposing damages
accepting the case pleaded by the respondent in the absence of any
evidence and proof. He submitted that from the certificate of
contribution payable dated 30.11.2004 duly signed by the principal
employer himself, it was clearly stated that a sum of Rs.72,377.92 in
respect of 192 employees had been collected by the employer and the
non payment of the contribution so collected was certainly willful.
According to the learned counsel, the respondent did not adduce even
formal evidence for substantiating his pleadings. The learned court
was carried away by Ext.A4 revenue recovery notice and Ext .A5
balance sheet for holding that the respondent was in acute financial
crisis during the relevant period and accordingly took the view that the
delay in the matter of payment of contribution was due to his financial
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crisis and not to be intentional.
3. Sri.Pareeth, learned counsel for the respondent resisting the
submissions of Mr.Ajayakumar submitted that the certificate of
contribution referred to in the appeal memo was not actually on
record. The above certificate, at any rate, pertains to the previous
period. Exts.A4 and A5 rightly relied on by the court below to find out
that there was no contumacious conduct or defiance of law warranting
penalisation of the respondents by imposing damages.
4. We have considered the rival submissions. We notice that
the finding that the respondent is not guilty of any blatant defiance of
law or contumacious conduct has been arrived at by the court below
accepting the pleadings raised by the respondent even though the
respondent did not adduce (the respondent was the applicant) even
formal evidence for substantiating that plea. We are of the view that it
was not proper on the part of the court below to have relied on Exts.A4
and A5 alone to enter the finding that the respondent is not guilty of
contumacious conduct or open defiance of liability. In the absence of
any evidence to support the finding we are of the view that the
question whether the respondent is liable to pay damages for the delay
in the matter of paying contribution is to be reconsidered by the court
below. We are satisfied that the impugned judgment to the extent it
relates to the respondent’s liability to pay damages under Section 85
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(b) of the Employers Insurance Act is bad. Accordingly, we set aside
the impugned judgment and remit I.C.69/2006 to the E.I.Court,
Palakkad for deciding the question regarding the liability of the
respondent for imposition of damages for the delay in the matter of
payment of contribution. The court is directed to afford an opportunity
to both sides to adduce evidence for satisfying their rival contentions.
In compliance with the above direction the court will take fresh
decision at the earliest.
Pius C.Kuriakose, Judge
C.K.Abdul Rehim, Judge