1. This petition has been filed challenging an order dated 13 September, 2011 passed under Section 85B of the Employees' State Insurance Act, 1948 ("the Act") whereby the Employees' State Insurance Authorities have levied penal damages of nearly Rs.60 lakhs under Section 85B of the Act on the petitioner establishment for delay in making payment of its contributions for the period from September 2002 to March 2010.2. The facts are that the Premchand Jute Mill Ltd. is the owner of a jute mill known as Premchand Jute Mills situated at Howrah. It is alleged by the petitioner that by a conversion agreement dated 31 August, 2005 entered into by and between the Premchand Jute Mills Ltd. and the petitioner no.1, the petitioner no.1 was allowed to utilize the entire production capacity of the jute mill for production of jute goods.3. The petitioner no.1 was previously known as Brishti Vinimay Private Ltd. and was renamed as Premchand Jute and Industries Private Limited with effect from March 25, 2011. By a Memo dated 26 November, 2007, the ESI authorities claimed that as on 31 October, 2007 a sum of Rs.3,73,04,297 was in arrears out of which only a sum of Rs.1,10,97,511 was on account of ESI contributions and the rest represented damages and interest. It was contended on behalf of the petitioners that these dues said to be payable by the petitioners were primarily for the period prior to the agreement which had been executed between the owners of the jute mill and the petitioner no.1.4. On 23 March, 2011, a notice was issued under Section 85B for levy of penal damages for the period from September 2002 to March, 2010. Pursuant to the notice, the petitioner no.1 appeared and filed written submissions, inter alia, contending that the damages could not be imposed for such an old period i.e. for approximately 9 years.5. By the impugned order, the ESI authorities considered the objections filed on behalf of the petitioner and passed an order, inter alia, recording that there was no provision of any time limit for securing damages prescribed under the Act. The only time limit prescribed under the Act was under the second proviso of Section 45A(1) of the Act which was applicable only for determination of contributions and not for damages. It was categorically recorded in the impugned order that the payment of contributions within the stipulated time period was a statutory obligation on the part of the employer under the provisions of the Act and the delay in payment of contributions caused erosion of the ESI fund resulting in serious difficulties in the smooth functioning of the social welfare schemes. In the instant case, the extent of delay was said to be from 6 days to 2153 days.6. It was in this background, that the impugned order came to be passed, inter alia, holding the petitioner company liable for a sum of Rs.59,61,588.00 on account of damages for the delayed payment of contributions for the period from September, 2002 to March, 2010.7. It is submitted on behalf of the petitioner that the impugned order was liable to be set aside and quashed on the ground that the same was an unreasoned order. It is also submitted that the basic element of imposing penal damages under Section 85B of the Act is mens rea and that there was no mens rea in the facts and circumstances of the instant case. It is further submitted that none of the factors for levying penal damages have been applied in the instant case and that the ESI authorities had proceeded beyond their authority and jurisdiction in seeking to levy damages on the establishment for a period beyond the period when the petitioner had been in control over the mill.8. On behalf of the ESI authorities, it is submitted that it was an uncontroverted fact that ESI contributions had not been paid for approximately 8 years by the concerned establishment. It is submitted that there is no time limit prescribed for claiming damages against an establishment under the Act. The only time limit prescribed under the Act was in case of payment of contributions and not for damages. The respondents further relied on sections 85B of the Act, 45A(1) of the Act, 93A of the Act and Regulation 31C under the ESI (General) Rules 1950 to contend that the impugned order was justifiably passed in the facts and circumstances of the instant case. It is submitted that the entire story of Bristi Vinimay Pvt. Ltd. was a ruse to wriggle out of the statutory dues mandatorily payable by the petitioner to the statutory authorities and that in view of the provisions of section 93A of the Act, the employer and the person to whom the factory or establishment was transferred both continued to remain jointly and severally liable to pay the amount in respect of any contributions under the Act. In this background, it was contended on behalf of the respondent Corporation that the writ petition was liable to be dismissed and the interim orders passed ought to be vacated.9. It is to be noted that, upon the said writ petition being moved this Hon'ble Court had passed an interim order dated 23 December, 2011 whereby the impugned order dated September 13, 2011 was stayed on the condition that the petitioners would deposit a sum of Rs.25 lakhs with the ESI Authorities. Being aggrieved by the said order, the petitioners preferred an appeal being APOT 26 of 2012 which was disposed of by a Division Bench reducing the sum of Rs.25 lakhs (which the petitioner had been directed to deposit by the Trial Court) to Rs.15 lakhs which was to be deposited with the ESI Industries within a stipulated time period. It is submitted on behalf of the petitioners, that pursuant to the direction dated 19 January, 2012 passed by the Division Bench, the petitioners had deposited a sum of Rs.15 lakhs with the ESI Authorities without prejudice to their rights and contentions with regard to this petition. The matter had appeared as an "Old Matter" in the list and was taken up for hearing on different dates. The parties had filed their affidavits, as well as their Notes of Arguments. These circumstances again highlight the delay in the justice delivery system illustrating the benefits where a petitioner enjoys an interim order and intentionally does not have the matter heard. At the same time it ought to be noted that authorities (as in this case) falling within the definition of Article 12 of the Constitution continue to remain indifferent, casual and nonchalant about the pendency of proceedings. In this context, notwithstanding a specific query by this Court, neither of the parties could show that any steps had been taken for nearly a decade long to have the matter heard. How only on the ground of inflation and currency depreciation, corporations such as the petitioner make merry from the pendency of proceedings is another aspect of the matter on which I need not dilate.10. I have perused the writ petition and the pleadings filed on behalf of the parties. I have also perused the Notes of Submissions and taken into account the citations relied on by the parties. At the outset, I would like to deal with the point of alternative remedy which was neither argued by the petitioner nor the respondent. Neither of the parties dealt with this aspect of the matter either in their oral submissions or their written notes of arguments. I do find from the affidavit-in-opposition (paragraphs 21 and 22) filed on behalf of the respondent authorities that the plea of the writ petition being not maintainable on the ground of alternative remedy has been pleaded. However, there are no particulars pleaded nor was the point orally taken by the respondents during the course of their submissions either at the ad-interim stage or during the final hearing of this petition. After the hearing had been concluded, I had directed the matter to appear as "To Be Mentioned" and requested the parties to address me on this issue. Hence, an opportunity was duly afforded to both the parties to address me on this aspect of the matter. Section 75(1) (g) of the Act provides as follows:(1) any question or dispute arises as to---xx xx xx(g) Any other matter which is in dispute between a principal employer and the Corporation, or between a principal employer and an immediate employer or between a person and the Corporation or between an employee and a principal or immediate employer, in respect of any contribution or benefit or other dues payable or recoverable under this Act, [or any other matter required to be or which may be decided by the Employees' Insurance Court under this Act], such question or dispute [subject to the provisions of subsection (2A)] shall be decided by the Employees' Insurance Court in accordance with the provisions of this Act. (emphasis supplied).Such question or dispute, subject to the provisions of subsection (2A) shall be decided by the Employees Insurance Court in accordance with the provisions of this Act.11. Although this clause does not specifically refer to damages as such, it refers to "other dues payable or recoverable under the Act". I am of the view that the question as to whether the damages imposed under Section 85B of the Act are justiciable or not or whether the quantum of damages is in accordance with the principles for computing damages, is certainly a dispute which would fall within the ambit of clause (g) of Section 75 (1) of the Act. This view is supported by several decisions of different Courts. In Regional Director, ESI Corporation vs. Sakthi Tiles, (1988) 2 KerLT 280 , it has been held as follows:"......In this perspective, we hold that the Insurance Court which is a proper forum prescribed by the Act to adjudicate as to whether the order or proceeding initiated by the Corporation to recover damages is justified can evaluate the entire matter, and if it is satisfied that there are extenuating circumstances, it can dispense with the recovery of damages, or delete or reduce the quantum of damages levied or afford such other relief, which in its opinion, is deserved in the circumstances."In another Division Bench decision of Kerela High Court, ESI Corporation vs. Hindustan Tile Works, (1999) 2 KerLT 851 , it was held as follows:"Section 75(1)(g) of the Act which empowers the court to adjudicate on any dispute on any matter which is in dispute between a principal employer and the Corporation, in respect of any contribution or benefit or other dues payable or recoverable under the Act or any other matter required to be or which may be decided by the Employees' Insurance Court under the Act. The penalty contemplated in S.85-B definitely falls under 'other dues' contemplated in the aforesaid provision and as such the Employees' State Insurance Court had full jurisdiction to decide the issue."Both the above mentioned authorities were pointed out to the Advocates for the respective parties and an opportunity duly afforded to them to deal with the decisions.12. In view of the aforesaid, I am of the view that under Section 75(1)(g) of the Act, the Insurance Court would ordinarily have jurisdiction to decide the question as to whether damages imposed under Section 85B of the ESI Act are justifiable or not.13. Ordinarily, a High Court does not entertain a writ petition under Article 226 when the petitioner has an alternative remedy available to him. There are well settled exceptions to this principle namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of natural justice; or (iii) the orders of proceedings are wholly without jurisdiction or the vires of an Act is challenged. In the instant case, the petitioners have been unable to make out a case for applicability of any of the aforesaid exceptions. However, I am of the view that in the peculiar facts and circumstances of the instant case and keeping in mind that this litigation has been pending for approximately a decade and that certain public duties of the respondents are involved, I exercise my discretion not to dismiss the writ petition on the ground of alternative remedy and proceed to deal with the petition on merits.14. At the outset, as has been held in B.M. Laxmanamurthy vs. The Employees State Corporation, Bangalore, (1974) 4 SCC 365 that " the Act is a beneficial piece of social security legislation in the interests of labourers in factories at the first instance with the power to extend to other establishments". Thus, the Act is a welfare measure meant to provide certain benefits to the employees in certain cases of sickness, maternity and employment injury. It is also a well settled principle of statutory interpretation that socio-economic legislation should be interpreted liberally with an end to promote the scheme of the Act and avoid the mischief which it seeks to control.15. The Act provides for certain benefits to employees in case of sickness, maternity and employment injury and makes provisions for certain other matters in relation thereto. A perusal of the various sections of the Act would reveal that the Act is made applicable to all factories. Under Section 26 of the Act, a fund called the Employees State Insurance Fund is created in respect of the contributions paid under this Act for purposes which may be expended as provided in Section 28 of the Act. The very object of establishing a common fund under Section 26 is for the benefit of all the employees. Section 38 of the Act requires all employees in factories or establishments be insured. Section 39 of the Act contemplates the contributions payable under the Act. Section 40 envisages the liabilities to pay the contributions. Section 40 (4) contemplates an element of entrustment whereby an employer is statutory obliged to act as a "Trustee". Under Section 44 of the Act, there is an obligation on the employer to furnish returns and maintain a register and records in respect of the factory or establishment. Section 46 of the Act provides for the different benefits which are available to the insured persons i.e. the employees. Such benefits include sickness, maternity, disablement, injury, medical treatment for an attendance on insured persons. Lastly, there is the power to prosecute under Section 85 which includes punishment for failure to pay contributions as well as contraventions for non-compliance with any of the requirements of the Act. It is evident that any failure on the part of the employers to make timely payments of the accumulations and contributions undermines the very objectives and purpose of the Act.16. The crux of the dispute in this petition pertains to the applicability and imposition of the damages by the ESI authorities under Section 85B of the Act. In this context, Section 85B of the Act provides as follows:85B. Power to recover damages.- (1) Where an employer fails to pay the amount due in respect of any contribution or any other amount payable under this Act, the Corporation may recover [from the employer by way of penalty such damages not exceeding the amount of arrears as may be specified in the regulations]:Provided that before recovering such damages, the employer shall be given a reasonable opportunity of being heard:[Provided further that the Corporation may reduce or waive the damages recoverable under this section in relation to an establishment which is a sick industrial company in respect of which a scheme for rehabilitation has been sanctioned by the Board for Industrial and Financial Reconstruction established under section 4 of the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986), subject to such terms and conditions as may be specified in regulations.](2) Any damages recoverable under sub-section (1) may be recovered as an arrear of land revenue [or under section 45C to section 45-I]17. The intention behind insertion of the said provision is to deter the employer who makes any default or delay in depositing the contribution amount. Therefore, when there is a default or delay in making the said contribution amount the Corporation may recover damages from the employer by way of penalty after giving an opportunity to the employer of being heard. It is in this background, that one ought to approach Section 85B of the Act.18. I will now consider certain facts and circumstances of the case. An unassailable and indisputable fact is the delay in the payment of the ESI contributions on the part of the establishment which was admittedly from 6 days to 2153 days. In other words, there was a delay of approximately 8 years on the part of the establishment in making payment of their ESI dues. I am of the view that delayed payment, which means untimely payment gives rise to a breach of the obligations under the Act and for such failure and omission (if not explained) the employer exposes itself to recovery of damages which incidentally was the case in these proceedings. On such facts, I am of the view that the levy of damages as per section 85B of the Act was fully justified and warranted. It is true that in the impugned order there is no mention of mens rea or intention but the fact of enormous and inordinate delay is itself eloquent. Moreover, in view of the admitted, indisputable and unassailable fact of delay for more than 8 years in making payment of the ESI contributions, no reasonable or prudent person apprised of these facts could take a different view on the question of whether such non-payment on the part of the petitioners was intentional or not. This is such an obvious and glaring fact that other than being willful, intentional, deliberate, calculated and in conscious disregard of its obligation nothing other than a deliberate intent not to pay attributed to the establishment. I am fully mindful of the fact that the duty which is imposed on the establishment in the instant case was a legal duty to pay mandatory and statutory contributions to benefit weaker sections of society. There is nothing which the petitioner has been able to show or offer or provide as any cogent explanation for non-payment of the statutory contributions. There are no mitigating circumstances which the petitioner had been able to demonstrate. The default has been admittedly committed for a staggering period of eight years continuously and is neither slight nor casual so as to be pardonable. This cannot by any stretch of imagination be termed as a technical or venial or trifling breach of the mandatory provisions of the Act. There are no extenuating circumstances existing nor were any suggested by the petitioners which would demonstrate there was no deliberate and intentional omission to fulfill their statutory obligations. Accordingly, I am satisfied as to the presence of positive circumstances justifying the imposition of damages in the facts and circumstances of the instant case.19. I am also of the view that the other contention on behalf of the petitioner that damages could not be levied for more than a period of 5 years is also without any basis whatsoever. The ordinary periods of limitation, that are usually made applicable to proceedings in Court cannot be made to be applicable under Section 85 B of the Act. Indeed, it is now well settled, that if it was a proceeding in an ordinary Court of law all applications might be subjected to the residuary period of limitation. But the point here is quite different and there is no provision in the Act whereby there has been any limitation which has been imposed for levy of penalty under Section 85B of the Act. In the absence of such a prescription of a special period, I am of the view that the levy of damages for penalty imposed beyond the period of 3 years cannot be rejected as being beyond the scope and jurisdiction of the Corporation. In ESI vs. C.C. Santhakumar, (2007) 1 SCC 584 (a decision not cited by either of the parties, but subsequently pointed out to them) the Supreme Court held:23. Similarly, no limitation is provided in Chapter VII. It deals with the imposition of penalty or levy of damages upon failure to pay contributions. It consists of sections from 84 to 86-A.24. When the Act itself does not provide for any limitation on the Corporation's right to claim, the employers cannot rely upon Regulations 32 to 66, dealing with the period for maintenance of registers, to imply any limitation.This plainly illustrates the principle that in the absence of any prescribed special period of limitation for levy of damages under the Act, the levy of damages or penalty for defaults beyond the period of three years cannot be rejected as being beyond the jurisdiction of the respondent Corporation. Accordingly, I reject the contention of the petitioners that the introduction of Section 45A in the Act which specifically deals with contributions ought to be automatically made applicable to damages. This section and the proviso only deals with "contribution" and not with the imposition of damages. The interpretation sought to be attributed by the petitioners is certainly not the intention of the section and would amount to re-writing the section. Accordingly, I reject the contention of the petitioner that the levy of damages could not be made by the respondent Corporation.20. I also find no merit in the contention of the petitioner that the petitioner is not liable insofar as the damages that have been imposed for a period before which the petitioner company had allegedly come into possession of the said jute mill. The petitioners contend that by the impugned order a supposedly subsequent employer has been saddled with a penalty for an alleged default committed by a previous defaulter. In this context, it is the petitioner's own case as pleaded in paragraph 12 of the petition, that even though they were not obliged either in law or by agreement they i.e. the petitioner no.1 had started to liquidate a substantial portion of contributions which the respondent authorities had claimed when the mill was supposedly in control and management of other persons and for which default the petitioners were allegedly not responsible. Hence, the petitioners would necessarily also be liable to pay interest and damages for delayed payment and non-payment of contributions. The further answer in this context also apart from the conduct is to be found in Section 93A of the Act that clearly provides that both the employer and the person to whom the factory or establishment has been transferred remain jointly and severally liable to pay the amounts due in respect of any amount under the Act. In this connection, section 93A of the Act is quoted here:Liability in case of transfer of establishment:- Where an employer, in relation to a factory or establishment, transfers that factory or establishment in whole or in part, by sale, gift, lease or licence or in any other manner whatsoever, the employer and the person to whom the factory or establishment is so transferred shall jointly and severally be liable to pay the amount due in respect of any contribution or any other amount payable under this Act in respect of the periods up to the date of such transfer:Provided that the liability of the transferee shall be limited to the value of the assets obtained by him by such transfer.On a simple reading of section 93A of the Act, the employer and the person to whom the factory establishment is transferred both become jointly or severally liable to pay the amounts due in respect of any contribution or any other amount payable under the Act in respect of the period upto the date of such transfer. Therefore, a transferee cannot claim that he being the transferee of an establishment is not liable to pay the dues accruing before the transfer. I am also inclined to believe that the entire story of the petitioner no.1 (previously known as Brishti Vinimay Pvt. Ltd.) or Premchand Jute Mill Ltd. not being the person responsible to pay the dues which they were statutorily obliged to do as well as the damages which have been imposed under the Act is a subterfuge simply to circumvent the law. As a principle of law, mere change of name does not affect the corporate identity or its continuity as the same entity. It remains for all practical purposes the same entity with the same rights, obligations, privileges and liabilities as before. In any event, I find this contention to be lacking in bonafides and without any substance whatsoever nor do I find any merit in the submission of the petitioners, that the agreement dated 31 August, 2005, absolves the petitioner from the liability claimed by the respondent authorities. A plain reading of the agreement would demonstrate that for all practical purposes the petitioner company was given exclusive possession for running the jute mill and the exclusive right to utilize the entire production capacity of the jute mill. The covenants between the owners and the petitioners cannot absolve the petitioner company from the rigours of damages imposed under statute or deprive the employees of mandatory benefits conferred on them.21. I also do not find that there is any violation of the principles of natural justice which justifies any interference with the impugned order. The petitioner no.1 was duly given an opportunity of personal hearing on 19 April, 2011. The representative of the petitioner appeared before the concerned officer of Corporation. The primary ground urged in the written note filed before the Authorities by the petitioners was only one of limitation. There was no other substantive ground urged by the petitioner in their objection filed before the Authorities. This aspect of the matter had been adequately considered in the impugned order. The view taken in the impugned order was certainly a view that cannot be said to be illegal, irrational or unreasonable.22. For the reasons stated hereinabove, I have already found no merit on the aspect of limitation insofar as damages is concerned as urged by the petitioner. The calculation of damages was on the basis of the scheduled rates as per Regulation 31-C of the Regulations. The other grounds of sickness and financial hardship urged on behalf of the petitioners in their pleadings and representations before the respondent authorities were vague, unsubstantiated and bereft of any supporting materials whatsoever.23. The petitioners relied on the decision reported in (Employees State Insurance Corporation vs. HMT Ltd., (2008) 3 SCC 35 ) for the proposition that existence of mens rea is a necessary ingredient for levy of damages under the said section. The said decision was also cited for the proposition that Section 85B does not contemplate mandatory levy of damages (para 16 and 26). I am in full agreement with the principle laid down in the said decision. As I have held hereinabove, there has been a staggering delay of 8 (eight) years in the payment of the dues by the petitioner under the Act. There was neither any accentuating nor bona fide circumstance nor any suggestion made on behalf of the petitioner. Accordingly, in view of such glaring facts other than having mens rea and in conscious disregard of its statutory obligation to make mandatory payments nothing other than deliberate intent or default can be attributed to the petitioner establishment.24. Insofar as the decision reported in (McLeod Russel vs. Regional Provident Fund Commissioner, Jalpaiguri, (2014) 15 SCC 263 ) is concerned, paragraph 11 of the said judgment, the Hon'ble Supreme Court also clearly held that the quantification and imposition of damages could be recovered from a party which has assumed the management of the establishment concerned.25. Insofar as the decision reported in ( Kolkata Municipal Corporation vs. Employees State Insur
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ance Corporation,2012 SCConLineCal 2393 ) what weighed with the Learned Single Judge in that case was that the petitioner in that case was a statutory authority engaged in civic administration and it would not normally be expected to be motivated by greed or ill-motive to commit default in meeting its statutory obligations (para 21). In any event, there was a question of applicability of the Act on the petitioners which is patently distinguishable in the facts of the instant case.26. Reliance was also placed by the petitioners on the decision reported in (Pitpal Singh vs. Satpal Singh, (2010) 2 SCC 15 ) for the proposition as to the factors and/or principles for levy of damages in the case of provident fund. I am of the view that the said decision has no application in the facts and circumstances of the instant case and was in any event under a different piece of legislation. For the same reason the decision reported in (Assistant Provident Fund Commissioner & Anr. vs. Management of RSL Textile India Pvt. Ltd., (2017) 3 SCC 110) is also distinguishable and inapplicable in the facts of the instant case.27. The staggering delay in the facts of the instant case and in the absence of any cogent explanation offered by the petitioner the presence of mens rea on the face of the petitioner establishment is written large in the facts of the instant case. For similar reasons the decision reported in Employees Provident Fund Organization vs. Employees Provident Fund Appellate Tribunal,2015 SCConLineCal 6106 is also of no help to the petitioner's case.28. For the foregoing reasons, I am of the view that the failure on the part of the establishment to carry out their statutory obligations was in conscious and willful disregard of their lawful obligations. The records demonstrate that the defaults committed were continuous and habitual in nature and were of an inordinate kind. It is needless to mention that an employer under the provisions of the Act is deemed to be in a position of a trustee and if he makes any failure to pay "contributions" he must be deemed to have dishonestly used the amount of contributions in violation of the direction of law. Therefore, the impugned order is not liable to be interfered with.29. In the circumstances, the writ petition W.P No.1111(W) of 2011 is dismissed with costs assessed at Rs.5 lakhs (Five lacs) payable to the respondent Corporation. The interim order passed in this writ petition stands vacated. The deposited amount of Rs.15 lakhs by the petitioner with the respondent authorities pursuant to the order dated 19 January, 2012 shall forthwith be appropriated by the respondent authorities towards part payment of the dues payable under the impugned order. The respondent authorities are immediately directed to take all available steps in accordance with law for expeditious recovery of the balance amount payable under the impugned order by the petitioner.30. Urgent certified photostat copies of this judgment, if applied for, be supplied to the parties upon compliance of all requisite formalities.