J U D G M E N T

This Civil Miscellaneous Appeal has been filed by the appellant as against the order passed in E.S.I.O.P.No.66 of 2011, dated 22.02.2012 on the file of the Employees' State Insurance -cum- Labour Court, Tirunelveli, wherein, the respondent herein has filed the petition, challenging the order passed by the E.S.I Authorities under Section 85-B of the E.S.I. Act. The trial Court has allowed the application and directed the petitioner herein, to deposit 20% of the amount as fixed by the authorities. As against the order passed by the trial Court, the present appeal has been filed by the appellant/E.S.I Authorities.

2. The case of the respondent/petitioner before the trial Court are as follows:

The respondent/petitioner is doing feeding bottle business at Koilpapakudi village. They purchase feeding bottles carton and nipples from North India and assemble the feeding bottles. Workers are sufficiently available in the surrounding place of Koilpapakudi. The packed items of feeding bottles are send to petitioner's godown where the despatch number and package number were allotted as per the procedure. The Deputy Director of E.S.I. Authorities passed an order under Section 45-A of the E.S.I.Act on 23.11.2010 determining the contribution for a sum of Rs.2,08,081/- (Rupees Two Lakhs Eight Thousand and Eighty Only only) for the period from April 2006 to July 2009 and the amount was remitted by the respondent. The appellant issued show cause notice dated 04.08.2011 to levy damages of Rs.1,72,443/- (Rupees One Lakh Seventy Two Thousand Four Hundred and Forty Three only) and the personal hearing was fixed on 06.09.2011. On that day, the representative of the respondent appeared and explained the matter. But without considering the representation, the authorities passed an order under Section 85-B of E.S.I.Act, by determining the damages for a sum of Rs.1,64,566/- (Rupees One Lakh Sixty Four Thousand Five Hundred and Sixty Six only). The petitioner has no malafide intention to deny the payments. Therefore, the petitioner is not liable to pay any damages.

3. The case of the appellant is that the respondent has no locus standi to file this petition. The respondent/petitioner has not come to this Court with clean hands and the material facts have been suppressed. The respondent/ petitioner is covered under the E.S.I. Act and they suppressed the real number of employees thereby, the authorities have inspected the respondent's establishment and thereby the employer is liable to pay the contribution. Thereafter, a personal hearing was offered to the respondent and then only order was passed by the authorities under Section 45-A of the E.S.I.Act and thereby, the present petition is liable to be dismissed.

4. Before the Labour Court, on the side of the respondent/petitioner, no witness was examined and only documents Ex.P1 to P.3 were marked. On the side of the appellant/respondent, no witness was examined and no document was marked.

5. The Labour Court after analyzing the available records reduced the quantum of the damages from 100% to 20%. As against the order passed by the Labour Court, the appellant/E.S.I Authorities have filed this appeal on various grounds.

6. The learned counsel appearing for the appellant would contend that the respondent establishment was covered under the E.S.I Act and they have to pay the contribution for the employees working under the establishment.

The authorities have inspected the establishment of the respondent/petitioner and they found that the real number of employees were suppressed and thereby they issued Form-C18 and thereafter issued order under Section 45-A of the E.S.I.Act and the same was complied by the respondent/petitioner. However, due to the delay in payment of contribution the appellant authorities have issued the show cause notice and after personal hearing they levied penalty under Section 85-A of the E.S.I Act. As against the order passed by the E.S.I. Authorities, the respondent/petitione