# ( ) v. Sri B.S. Saini and another

- **Citation:** (2008) 1 ILRA 170
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-01-22
- **Case number:** F.A.F.O. No.333 of 1986
- **Bench:** S.U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/v-sri-b-s-saini-and-another-41008
- **Pages:** 3

## Headnote

Employees State Insurance Act-Section
85-B-Liability to pay interest-as well as
penality-without
considering
several
mitigating circumstances like reduction
in
business
prolonged
strike
etc.-
employer already paid the due amountheld-non
consideration
vitiate
entire
finding-direction
issued
for
fresh
consideration.

Held: Para 8
1 All] Bhagwati Prasad V. State of U.P. and another
171

Direction for payment of interest may be
a mitigating circumstance and even
though it does not absolve the employer
of his liability to pay damages under
Section 85-B, however, it may be taken
into
consideration
for
reduction
of
damages and interest may be adjusted in
damages to be imposed under Section
85-B.
Case law discussed:
2004 (4) AWC 3106, 1994 (69) FLR 842, AIR
1994 SC 521, AIR 1997 SC 1771

## Text

170 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
the possession of a property can always
be had from the concerned court. The
civil Court has all powers under Order 39
Rule 2 and Rule 2-A for either granting
appropriate
orders
or
ensuring
the
compliance thereof. The civil Court in
view of the provisions of Section 144
C.P.C. also have the power of restitution
and in view of the provisions of order 40
CPC, the civil Courts also has the power
to appoint a receiver in case the occasion
so arises. Similarly, the revenue court
entertaining a Suit under Section 229-B
has the power to pass orders of interim
injunction
as
is
evident
from
the
provisions of Section 229-D of the U.P.
Zamindari Abolition and Land Reforms
Act, 1950. Not only this, in view of the
provisions of Section 341 of the said Act,
the provisions of the Code of Civil
Procedure in so far as they are not
expressly excluded shall apply to the
proceedings in a revenue Suit as well.
Thus, there is a complete machinery
available both before the civil Court as
also before the revenue court for the
redressal of the grievances of the
petitioner, if any, on the facts as alleged.
Sofaras the breach of peace or the
existence of an emergent situation is
concerned, it is evident that the order
under 146 (1) was passed almost after 13
months of the drawing of the proceedings.
There is nothing on record to indicate any
apprehension of breach of peace and even
if it were existing, then the remedy of the
petitioner is to approach the concerned
court as noticed herein above for
appropriate orders.

10. In the light of what has been
stated above, it cannot be said that the
Magistrate has proceeded erroneously or
has failed to exercise the jurisdiction
vested in him in accordance with law. For
the same reason, the order passed in
revision also does not call for any
interference by this Court in the exercise
of extra ordinary jurisdiction under
Article 226 of the Constitution of India.
The parties are at liberty to approach the
concerned court for the redressal of their
grievances and the observations made
herein above shall in no way impede the
proceedings before either the civil Court
or the revenue Court who shall be free to
pass orders untrammelled by any of the
observations made herein above.

11. The writ petition is, accordingly,
dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.01.2008

BEFORE
THE HON'BLE S.U. KHAN, J.

F.A.F.O. No.333 of 1986

Employees State Insurance Corporation,
Kanpur

...Appellant (Respondent)
Versus
Sri B.S. Saini and another

...Respondents (Appellant)

Counsel for the Appellant:
Sri B.N. Asthana

Counsel for the Respondents:

Employees State Insurance Act-Section
85-B-Liability to pay interest-as well as
penality-without
considering
several
mitigating circumstances like reduction
in
business
prolonged
strike
etc.-
employer already paid the due amountheld-non
consideration
vitiate
entire
finding-direction
issued
for
fresh
consideration.

Held: Para 8
1 All] Bhagwati Prasad V. State of U.P. and another
171

Direction for payment of interest may be
a mitigating circumstance and even
though it does not absolve the employer
of his liability to pay damages under
Section 85-B, however, it may be taken
into
consideration
for
reduction
of
damages and interest may be adjusted in
damages to be imposed under Section
85-B.
Case law discussed:
2004 (4) AWC 3106, 1994 (69) FLR 842, AIR
1994 SC 521, AIR 1997 SC 1771

(Delivered by Hon'ble S.U. Khan, J.)

1. At the time of hearing, no one
appeared on behalf of the respondents,
hence only the arguments of learned
counsel for the appellant were heard.

2. Joint Regional Director, E.S.I.,
Kanpur
passed
two
orders
against
respondents. One order was passed on
15.09.1982, which was slightly modified
on 07.01.1983. The other order was
passed on 21.04.1983. Against both the
orders, respondents filed appeals before
Employees Insurance Court, Saharanpur
under Section 75 of Employees State
Insurance Act (hereinafter referred to as
''E.S.I. Act'). The appeals were registered
as Appeal No.22 of 1983 & Appeal No.95
of 1983 and were disposed of by common
judgment dated 06.01.1986 by State
Employees Insurance Court/ S.D.M.,
Nakur, District Saharanpur. The said
judgments have been challenged through
these appeals.

3. The Joint Regional Director had
imposed penalty under Section 85-B,
E.S.I. Act as well as directed payment of
interest under Regulation 31-A of the
Regulations framed under the Act. In the
opinion of the court below, penalty could
not be imposed along with direction for
payment of interest as it would amount to
double jeopardy.

4. Court below has further held that
penalty could be imposed only if the
employer had failed to pay the amount
due, however, in the instant case before
any proceedings could be initiated, the
amount had been paid by the employer
even though the payment was late, hence
penalty was not warranted.

5. Learned counsel for the appellant
has cited the following authorities:-

1. 2004 (4) AWC 3106 "Swastik
Pharmaceuticals Varanasi Vs. J.R.D.,
U.P. holding that both damages and
interest may be imposed and charged.

2. 1994 (69) FLR 842 (Bombay High
Court),
Joint
Regional
Director,
Employers'
State
Insurance
Corporation Vs. Ganesh Foundry Pvt.
Ltd. holding that damages are penal in
nature.

6. The view taken by the court
below is not legally sustainable. Delayed
payment is also failure to pay within time
vide AIR 1994 SC 521 "Prestolite of
India Ltd., M/s. v. Regional Director"
and AIR 1997 SC 1771 "Sovrin Knit
Works v. Employees' State Insurance
Corpn." In view of these authorities
damages may be imposed under Section
85-B and interest may also be directed to
be
paid
under
Regulation
31-A,
simultaneously.

7. However, in the aforesaid
authority of Prestolite, it has been held
172 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
that adjudicating authority shall take
mitigating
circumstances
into
consideration,
it
should
not
act
mechanically in applying uppermost limit
of damages. The employers had pleaded
several mitigating circumstances like
reduction in business and prolonged strike
etc. The said points require consideration
by the Employees State Insurance Court/
S.D.M.

8. Direction for payment of interest
may be a mitigating circumstance and
even though it does not absolve the
employer of his liability to pay damages
under Section 85-B, however, it may be
taken into consideration for reduction of
damages and interest may be adjusted in
damages to be imposed under Section 85B.

9. Through the impugned orders, the
court below directed payment of interest.

10.

Accordingly,
appeals
are
allowed. Impugned orders are set aside.
Matter is remanded to Employees State
Insurance
Court/
S.D.M.,
Nakur,
Saharanpur for deciding the appeals in the
light of observations made above.

11. As no one has appeared on
behalf of the employers-respondents,
hence before proceeding further, the court
below shall issue notice to them.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2007

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 40844 of 2007

Smt. Pratibha Devi

...Petitioner
Versus
Additional Commissione, Varanasi and
others

...Respondents

Counsel for the Petitioner:
Sri Sankatha Rai
Sri Dr. Vinod Kumar Rai
Sri Vijay Kumar Rai

Counsel for the Respondents:
Sri B.B. Paul
Sri A.P. Paul
Sri Braj Raj
Sri Anuj Kumar
S.C.

Constitution of India 226-writ petitionarises out from-summary (mutation)
proceeding-No right title are decidedfinding recorded in summary proceeding
neither conclusive nor binding-heldpetition not maintainable.

Held: Para 17

The present case is not covered by any of
the exceptions, in which this Court
exercises its jurisdiction under Article
226 of the Constitution of India against
an
order
arising
out
of
mutation
proceedings. The mutation courts have
decided in summary proceedings as to
whose name be recorded in the revenue
record on the basis of Will. The decisions
of the mutation court impugned in the
writ petition are subject to adjudication
of right of the parties by a competent
Court. It is well settled that findings
recorded in the mutation proceedings
are neither conclusive nor binding when
the
rights
are
adjudicated
in
a
competent
Court.
In
view
of
the
foregoing discussions, no around has
been made to entertain this writ petition
arising out of mutation proceedings in
writ jurisdiction of this Court.
Case law discussed:
2002(46) ALR564, 1972 RD 361, W.P. 43450
OF 2003 DECIDED ON 11.5. 04 1993 RD-337,
1968 RD-123 2001, RJ 522, 1956 ALJ-807,
2001 RD-166, 2003 RD-217