R.N. Ryne, J. - (1.) The appellant The Titaghur Jute Factory Co Ltd. is a company incorporated in the United Kingdom and has its principal place of business in India. It has a jute factory known as "Titaghur Jute Factory Go Ltd. No. 2 Mill" at Titaghur, Khardah in the district of 24 Parganas. Messrs. Thomas Duff & Co. (India) Limited has been and is the agent of the appellant to look alter its business in India. The provisions of the Employees' State Insurance Act, 1948 thereinafter referred to as "the said Act") are applicable to the appellant's aforesaid Jute Factory and according to the appellant it has been paying contributions as required by and in accordance with the provisions of the said Act.
(2.) A notice bearing No. 4l-3205/Ins. III/9567 dated 25th March, 1977 was issued to The Titaghur Jute Factory Co, Ltd. No. 2 Mill" by the Regional Director, Employees' State Insurance Corporation, the responded No. 1 in this appeal By the said notice proceedings were initiated against the appellant for recovery of damages under Section 85-B(1) of the said Act for contravention mentioned in the said notice. The said notice along with its annexures are set out hereunder:- "Registered with A.D. Regional Office, Employees' Stale Insurance Corporation, "ESIC Building", 5/1, Grant Lane, Calcutta-12 No. N. 41-3205/Ins. III/9587 Dated the 25.3.77 NOTICE Whereas M/s. The Titaghur Jute Factory, (P.O. Titaghur 24 Pargs) Co. Ltd (Mills No. 2) a factory/establishment to whom the provision of the E.S.I. Act, are applicable and who are required to pay the contributions (Employer's share and Employees 'share) in accordance with Section 40 of the ESI. Act and have failed to pay the contributions made a default in making the payment of the contributions within the stipulated tune as provided in the Regulations 26 of E.S.I (General) Regulations, 1950, framed under the Act, as per the details furnished in the statement on the reverse. And whereas it is proposed to determine and recover from M/s. The Titaghur Jute Factory Co Ltd. (Mill No. 2) damages as detailed out in the last column of the statement, as per and under the provisions of Section 85-B(1) of the said Act. And whereas it is proposed to afford M/s. Titaghur Jute Factory Co. Ltd. (Mill No. 2) an opportunity to (show?) cause against such determination and recovery. Now Shri R. S. Murarka, Manager resident of C/o. M/s. The Titaghur Jute Factory Co. Ltd. (Mill No. 2) P. O. Titaghur 24-Parganas as the principal employer of the above factory/establishment may please show cause within 15 days hereof why damages proposed in the last column of the statement be not recovered. Shri Murarka may also indicate it he would like to be afforded an opportunity for a personal hearing the matter. If no reply is received within a period as referred to above, it will be presumed that no reply is intended and the action to recover the damages will be taken on merits. G.K. Seal 24.3.77 For Regional Director, Asstt Regional Director E. S. I. Corporation, West Bengal Region. To, M/s. Principal Employer (by name) R.S. Murarka. Manager, C/o. M/s. The Titaghur Jute Factory Co. Ltd., (Mill No. 2) P. O. Titaghur. 24-Parganas. JUDGEMENT_64_LAWS(CAL)7_1978_1.html STATEMENT Total amount of damages:- Rs. 1,51,684,00 (Rupees One lakh fifty one thousand six hundred eighty-four only) G, K, Seal, 3/77. For Regional Director."
(3.) On 29th April, 1977 the appellant made a written representation to the respondent No. 1 against the said notice. Thereafter, by a notice bearing No. 41-3205/- Ins. III dated 19th May, 1977 issued by the Assistant Regional Director, Employees' State Insurance Corporation the appellant was requested to appear before the Regional Director on 15th June, 1977 at 3 30 p.m. fora personal hearing as desired by the appellant Pursuant thereto a personal hearing was granted to the appellant on 15th June, 1977. It is stated by the appellant that on the date its representative attended the hearing and made the following submissions : "1. The notice dated 25th March, 1977, whereby proceedings have been initiated under Section 858(1) of the Employees' State Insurance Act, 1948, discloses facts which only constitute contravention of the Regulation 26 of the Employees' State (General) Regulations 1950. 2. Regulation 26 only prescribes the time limit within which the contribution cards should be submitted to Corporation. 3. The contravention of Regulation 26 does not follow that there is also a failure in the payment of contribution. 4. The actual dale of payment of contribution can only be ascertained from the date appearing on the face of the stamp affixed on the card and therefore the delay or the failure in payment can only be ascertained by reference to such date. 5. A mere contravention of Regulation 26 cannot by itself attract the provisions of Section 85-B(1) of the Employees' State Insurance Act, 1948, because the provisions of the said Section 85 B(1) apply to a case where there is a failure in payment and the said state of affairs still continues. 6. In any event, Section 85-B(1) of the Employees' State Insurance Act, 1948, cannot be resorted to for a contravention of Regulation 26 of the Employees State Insurance (General) Regulations, 1950, because there is no nexus between the two.";