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IN THE HIGH COURT OF BOMBAY AT GOA

APPEAL UNDER E.S.I. ACT NO.10/2006

Mr Employees State Insurance Corporation

Regional Office, Goa, through its

Regional Director, 46, Defence Colony,

Alto Porvorim, Bardez, Goa.

.......... Appellant

V/s

M/s Kadamba Transport Corporation,

a Public Limited Company,

registered under the Companies At, 1956,

having its Office at East Wing,

Bus Terminus, Panaji, Goa

through its Managing Director,

Brig Ian da Costa (Retd).

.......... Respondent.

Mrs. A. A. Agni and Mrs. N. Narvenkar, Advocates for the appellant.

Mr. A. R. Kankat, Advocate for the respondent.

CORAM : P. V. KAKADE, J.

DATE : 5TH DECEMBER, 2006.

ORAL JUDGMENT :

Heard learned Counsel for both the parties. In view of the

facts and circumstances, Rule. Rule is made returnable forthwith.

2.

This is an appeal preferred by the Employees State Insurance

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Corporation against the order passed by the Presiding Officer, E.S.I.C.,

Panaji allowing the respondent's application, challenging the Order dated

6.12.95 whereby the Corporation had directed the applicant-respondent to

pay damages to the tune of Rs. 1,08,586/- in terms of Section 85 of the

Act.

3.

The respondent-applicant is a public limited company engaged

in transport service to the public by plying state carriage within the State of

Goa and to the neighbouring States. The applicant commenced its business

in October, 1980 and its fleet strength crossed 20 in March, 1981.

According to the applicant-respondent, it had made an application to the

ESI Office at Bombay for allotment of a code number. However, no reply

was received and as such, the Manager of the applicant-respondent had

personally gone to the ESI Office at Bombay and he was handed over a

letter allotting the code number. The applicant-respondent has stated that

thereafter, it commenced deduction of the contribution from 11.3.1982 and

this contribution was regularly deposited in the State Bank of India, under

intimation to the ESI Office. It was the case made out on behalf of the

applicant that vide assessment order dated 18.10.1983, the Corporation

claimed from the applicant-respondent contribution to the tune of

Rs.1,10,052-93 for the period from October, 1980 to March, 1982. The said

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order under Section 45-B of the ESI Act was challenged by the applicant

vide letter dated 2.11.1983. The ESI Court directed the respondent to

correct the contributions payable taking into account the date of intimation

of coverage. The Corporation, thereafter, determined the contribution at

Rs.1,08,586.41 for the period from January, 1981 to March, 1982 and

interest amounting to Rs.44,321.10 i.e. at the rate of 6 % for the period

from 22.2.1982 to 19.10.1989 and Rs.4,712.55 i.e. at the rate of 12 % for

the period from 20.10.1989 to 28.2.1990. A review application was filed

before the ESI Court by the applicant, which was rejected on the ground

that the ESI Court had no power to deal with the same. Therefore, the

amount came to be deposited. Thereafter, the Corporation vide Notice

dated 8.8.1990 informed the applicant-respondent that it proposed

determining and recovering from the applicant-respondent damages under

Section 85-B of the ESI Act for not effecting the payment of the

contribution within the stipulated time and, accordingly, made demand

thereof and subsequently, passed the order dated dated 6.12.1995 under

Section 85-B of the said Act. This order came to be challenged before the

ESI Court wherein the Corporation took up a stand that the ESI Court had

directed the applicant-respondent to pay the contribution along with

interest within a period of 15 days from the date of issue of the order

dated 22.2.1990. It was stated that the applicant had paid the said amount

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on 26.7.1990 and had not paid the contributions for the period from

January, 1981 to March, 1982 and hence, the acti