A.N. Ray,J. - (1.) In this matter no affidavit in opposition has been filed. Counsel on behalf of the Employees State Insurance Corporation has resisted the matter on points of law. I think the respondent is successful in that attempt and that the writ application should be dismissed with costs. My reasons for thinking so are as follows:
(2.) The application has been made complaining against the levy of damages by the Employees' State Insurance Corporation under Section 85(B) of the Employees' State Insurance Act. The Annexures to writ petition as well as the statements in the writ petition show that the facts are"practically admitted. The petitioner defaulted in payment of the amount of employees insurance contribution and the details of the default would be found at page 17 of the writ petition. Though the principal amounts were ultimately cleared up, yet the defaults once committed remained on record, and thus a notice dated 27th April, 1989 was served which was in the nature of a show-cause notice. After giving of hearing about which no complaint was made an order under Section 8S(B) was passed. The point about the unconstitutionality of the said section has not been pressed before me. Two points in the main have been urged by Mr. Ajay Kumar Gupta in support of the petition. The first point is that in view of the running of a period of three years since most of the payments as will appear from page 17, the levy of damages under Section 85(B) is said to be beyond the powers of the corporation. The second point urged was that since the levy was in the nature of damages there had to be certain basis to show how such damages could be estimated at the total figure of Rs. 2,59,348. It was suggested that similar principles as are applicable to situations in an action in contract or tort would also be applicable in this case and that without proof of some damage and without establishment of some basis for award of damages the said amount of damages cannot be awarded.
(3.) On behalf of the Employees' State Insurance Corporation, I think, sustenance has been appropriately drawn from the apposite case of Prabartak Jute Mills Ltd. v. Employees' State Insurance Corporation Ltd. reported in 1982, Vol. 2 Cal. Law Journal (Page 248). Justice Manas Nath Roy in that case explained the nature of Section 85(B). His Lordship said that the levy of damages as per that Section is a levy in the nature of penalty to teach the defaulter a lesson. Though the word used is 'damages' yet it was His Lordship's opinion that in the context the ordinary concept of damages as flowing in a contractual or tortiuous action was inappropriate. His Lordship also considered the question of levy of damages in comparison with the levy of interest 6% as per Regulation 3 l(a) framed under Section 97 of the said Act. It was his Lordship's opinion that the aforesaid Regulation and the levy of damages under Section 85(B) covered two entirely different fields. It was also held by His Lordships that, being in the nature of a statutory penalty the question of levy of damages under Section 85(B) would not be subject to any ordinary period of limitation as prescribed under the Articles of the Limitation Act of 1963.;