JUDGMENT R N. Pyne, J: 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 bas a jute factory known as "Titagbur Jute Factory Co. 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 after its business in India. The provisions of the Employees' State Insurance Act, 1948 (hereinafter 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. 41-3205/Ins. III/9567 dated 25th March, 1977 was issued to" the Tiraghur Jute Factory Co, Ltd. No, 2 Mill" by the Regional Director, Employee,' State insurance Corporation, the respondent No. 1 in this appeal By the said notice proceedings were initiated against the appellant for recovery of damages under S. 85B(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. 41-320'/lns. 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, arc applicable and who are required to pay the contributions (Employer's share and Employees' share) in accordance with S. 40 of the E.S.I. Act and have failed to pay the contrib4tions made a de-fault in making the payment of the contributions within the stipulated time 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 S. 85B(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. Ltd. (Mill No 2) damages as detailed out in the last column of the statement, as per and under the provisions of S. 85B(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 factor)/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 if 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. Kegional Director E. S. L Corporation, West Bengal Region. To. 1, M/s. 2) Principal Employer (by name) R. S. Murarka. Manager, C/o. M/s. The Titaghur Jute Factory Co. Ltd., P. O. Titaghur, 24-Parganas. STATEMENT (Mill No.2) Govt. period Amount of Dt. of submi- Due date of Extent of Proposed Amount Ending & set. Cont. ssion of con- submission delay. trubution cards Rs.p Rs.p 31.1.76 13.50 10.12.76 13.3.76 Over 8 months 50% 7/- 27.3.76 111.00 10.12.76 8.5.76. Over 7 months 50% 56/- 29.5.76 5.25 10.12.76 10.7.76 Over 4 months 40% 2/- 31.7.76 9.7.50 10.12.76 11.9.76 Over 2 months 35% 34/- 10.50 19.1.77 11.9.76 Over 2 months 40% 5/- 25.9.76 144.76 19.1.77 6.11.76 Over 2 months 40% 58/- 1.36,960,75 19.11.76 6.11.76 below 1 month 30% 41.088/- 1,23,317,75 8.12.76 6.11.76 Over 1 35% 43,161/- 136,50 17.12.76 6.11.76 Over 1 35% 1,511/- 4,170.75 27.11.76 1,87,292,75 19.1.77 8.11.77 below 1 month 35% 65,762/- Total Rs. 1,51,684/- 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/- Ina. 1,51,684/- 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/- Ina. III date of 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. for a 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 S. 85B(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 date of payment of contribution can only be ascertained from the date appearing on the face of the stamp affixed Oft 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 S. 85B(1) of the Employees' State Insurance Act, 1948, because the provisions of the said S. 85B(1) apply to a cue where there is a failure in payment and the said state of affairs still continues. 6. In any event, S. 85B(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." 4. Thereafter, as directed by the respondent No. 2 at the personal hearing the appellant in its letter dated 17th June, 1977 addressed to the Regional Director, Employees' State Insurance Corpn, recorded the submissions made on behalf of the appellant at tile personal hearing. Thereafter, as directed by the respondent No. 2 at the personal hearing the appellant in its letter dated 17th June, 1977 addressed to the Regional Director, Employees' State Insurance Corpn, recorded the submissions made on behalf of the appellant at tile personal hearing. While the said adjudication proceeding were pending before the respondent No.1 as aforesaid the appellant after serving a notice dated 29th June, 1977 on the respondent No. 1 demanding justice from him made an application in the constitutional writ jurisdiction of this Court challenging the said notice dated 25th March, 1977 on various grounds as will appear from paragraph 15 of the petition of the said application. 5. On behalf of the respondents an affidavit affirmed on 9th September, 1977 by one Kali Prasad Bhatta, insurance Inspector was filed in the said application. Regarding the charge against the appellant in paragraphs 7 and 11 of the said affidavit it is stated as follows: "7. With reference to paragraphs 7 and 8 of the said petition I say that personal hearing was granted to the petitioner by the respondent No. 1 on the 15th June, 1977. At the said personal hearing the petitioner made various incorrect and misleading submissions. The alleged contention of the petitioner could not be accepted on, inter alia, the following grounds: (i) Contributions are deemed to have been paid only when the evidence of the contribution having been paid is received by the Corporation as specified in Regulation 26(2) of the Employees State Insurance (General) Regulations 1950 (ii) The petitioner Failed to submit the contribution cards within the time specified under Regulations 26(1) and as such contributions would be deemed to have not been paid. (iii) As such damages are leviable under S. 85E(1) of the Employees State Insurance Act, 1948. I crave leave to refer to the judgment of Delhi High Court reported in 1977 (34) Factory Law Reporter 214 at 223 and 234." 11. With reference to paragraphs 12 and 13 of the said petition I say the alleged contentions raised by the petitioner arc erroneous and baseless and should be rejected. As there was delay in submission if contribution cards. which means there was failure to make payment within the stipulated time and as such the provision of S. 85B(1) or the E.S.I. Act is attracted and the petitioner is liable to pay damages." 6. As there was delay in submission if contribution cards. which means there was failure to make payment within the stipulated time and as such the provision of S. 85B(1) or the E.S.I. Act is attracted and the petitioner is liable to pay damages." 6. In paragraph 14 of the aforesaid affidavit it is also stated that "Since the petitioner failed to submit the contribution cards within the time specified under Regulation 26(1) contributions shall be deemed not to have been paid and as such damages are leviable and payable by the petitioner under S. 85B(1) of the E.S.I, Act. 1948. I say further that delay in submission of contribution cards amounts to failure of payment and attracts the provisions of S. 85 B(1) of the ES.I. Act, 1948. It is denied that the respondent No. 1 has not been empowered under S. 85B(1) of the E.S.I. Act, 1948 to initiate the proceedings for contravention of Regulation 26 as alleged or at all. 7. Before the learned Judge of the Court of the first instance it was contended on behalf of the appellant (who was the petitioner in that Court) that the notice only disclosed contravention of Regulation 26 of the Employee State Insurance (General) Regulations 1950 (hereinafter referred to as the Regulations) It was contended that Regulation 26 only prescribed the time limit within which contribution cards should be sent to the Corporation Therefore, from the contravention of the said Regulation it did not follow that there was also failure in payment of contribution. It was further stated that the time stipulated for payment of contribution was specified in Regulation 31 and that for delay in submission of contribution cards the Corporation could not claim damages under S. 85B(1) of the Act. It was also submitted that the notice only spoke of default in sending contribution cards, and for that no damages could be claimed under S. 858(1). Therefore according to the appellant the notice was ex facie bad and invalid. 8. It was also submitted that the notice only spoke of default in sending contribution cards, and for that no damages could be claimed under S. 858(1). Therefore according to the appellant the notice was ex facie bad and invalid. 8. On behalf of the respondents it was urged in the Court of the first instance that the notice was ex facie' good and it spoke of 2 defaults: (i) default in making payment of contribution under S. 40 of the Act and (ii) default in sending contribution cards within the time as specified under Regulation 26 and the particulars of the default in furnishing the cards had been given in the schedule to the notice. It was also submitted that the Schedule to the notice did not give any particulars of default in payment of contribution as such but it only set out the proposed rate of damages which the Corporation had the power to recover under S. 85H(1) of the Act. It was further submitted that the Appellant understood that the notice spoke of 2 defaults as would be clear from in letter dated April 29, 1977. Therefore it was clear to the Manager of the appellant's Mill who wrote the above letter that defaults both under S. 40 as also under Regulation 25 were being alleged against the appellant Company. 9. The learned Judge of the Court of the first instance accepted both the contentions urged on behalf of the respondents before him. His Lordship observed that – In any view, the notice means and implies that the Company failed to pay the contributions under S. 40 of the Act and made default in making payment of contribution within the stipulated time under Regulation 26 by not sending the contribution cards as provided in that Regulation. I am inclined to accept the argument of Mr. Bachawat in this respect." His Lordship further observed :- 'It is not the case of the Company that they have paid contribution for the period mentioned in the notice, 'It is also not the case of the Company that they have sent the contribution cards. So apparently there is failure by the company in both respects. The case of the company is not that they did not understand the notice; the Company did not understand it, and it said so in the letter dated April 29, 1977. So apparently there is failure by the company in both respects. The case of the company is not that they did not understand the notice; the Company did not understand it, and it said so in the letter dated April 29, 1977. It is clear that the company understood what the notice meant. The Company made default in both respects. So, the company was liable to pay damages for not sending contribution cards not arise as there is no such provision in the Regulations. Notice was duly given under S. 85B(1) of the Act giving reasonable opportunity to the Company of being heard on the question of damages for non-payment of contribution. It was for the company to show cause against the claim to recover damages for default in payment of contribution made by the Regional Director in the notice. The Company showed such cause. But, before the matter was finally decided the Company made this application. His Lordship by his judgment and order dated 5th January, 1978 dismissed the appellant’s application and discharged the Rule Nisi. The instant appeal is directed against the said judgment and order. 10. On behalf of the parties substantially the same contentions as were urged in the Court of the first instance were urged in this appeal. 11. Learned counsel for the appellant submitted that charge made in the notice is that there were defaults in payment of contribution within the time as specified in Regulation 26 and for that default damages were sought to be claimed against the appellant company. It has been further submitted that for violation of Regulation 26 provisions of S 85B(1) cannot be attracted because S. 85B(1) only speaks of non-payment of contribution whereas Regulation 26 fixes time for submission of contribution cards. According to counsel time for payment of contribution is specified in Regulation 31 and it is not the case of the Corporation that contributions have not been paid within the time as specified in that Regulation. In fact counsel has submitted, nail-payment of contribution has not been alleged by the Corporation in the affidavit-in-opposition. It is also the submission of the counsel that the case of the company was that there was no failure of payment of contribution and that position was not denied by the Corporation. In fact counsel has submitted, nail-payment of contribution has not been alleged by the Corporation in the affidavit-in-opposition. It is also the submission of the counsel that the case of the company was that there was no failure of payment of contribution and that position was not denied by the Corporation. But it is quite clear from the affidavit-in-opposition filed on behalf of the Corporation in the Court of the first instance that Corporation's case is that there was non-submission of contribution cards within the time specified in Regulation 26 and, therefore, contribution would be deemed to have not been paid within time and as such there Was failure to pay the contribution. Counsel has pointed out that payment of contribution within time is admitted. But non-submission of contribution card cannot be equated to non-payment of contribution itself in the absence of a specific provision to that effect. Therefore, for default alleged by the Corporation as stated above the Company cannot be made liable for damages under S. 85B(1) of the said Act. 12. Referring to the recent amendment of the Regulations by introduction of new Regulation 31A in the place of old one counsel submitted that under the proviso to the newly introduced Regulation 3lA regarding payment of interest it is provided that where contribution is paid by affixing the Contribution stamps, the employer shall be deemed to have not paid the contributions in time if he fails to submit the contribution cards within the time prescribed under Regulation 26. According to counsel this newly introduced proviso amply makes clear the non-submission of contribution cards in time does not amount to failure payment of contribution but where that is intended by the legislature a deemed failure is added by way of fiction in the Regulation. Therefore, according to counsel the notice is ex facie bad and the corporation had no power or jurisdiction to claim damages under S. 85B(1) of the Act for default in submission of contribution cards in time as specified. 13. Counsel for the respondent submitted that the notice is ex facie good and in this case as only the notice is challenged when the proceedings have not completed the court will proceed on the basis of the notice and on the assumption that the allegations made in the notice are correct. Court would decide whether the same discloses any valid charge. Court would decide whether the same discloses any valid charge. It is further submitted that the notice speaks of two defaults. First, default in making payment of contribution payable under S. 40 of the said Act, and secondly, default in sending contribution cards within the time as specified in Regulation 25. Alternatively, there has been a default in payment of contribution within the time stipulated by the Regulation. Counsel has further submitted that as one of the charges in the notice is default in payment of contribution under S. 40 of the Act that is enough to sustain the impugned notice. It was also submitted that the appellant company understood that that the notice spoke two defaults and this would be clear from its letter addressed to the respondent No. 1. According to learned counsel Regulations 26, 29, 30 and 31 should read together and a reading of the said Regulations would show that if contribution cards arc not submitted within time as specified in Regulation 26 that would amount to default in payment of contribution. Therefore, according to counsel as there was failure of payment of contribution on either of the grounds as contained in the notice it discloses a cause of action against the company and as such it is prima facie a good notice. 14. It, therefore, appears that really two points arise for consideration in this appeal. First, what is the charge in the impugned notice. Does the notice speak of one default or two defaults. Secondly, whether non-submission of contribution cards within the time specified in Regulation 26 would amount to default in or failure of payment of contributions as required under S. 40 of the said Act for which damages can be claimed under S. 85B(1). For a proper appreciation of the above points it is necessary to refer to the relevant provisions of the said Act and the said Regulations. 15 Section 39 speaks of contribution and under sub-s. (4) thereof contributions payable in respect of each week shall ordinarily fall due on the last day of the week, and where an employee is employed for part of the week, or is employed under two or more employers during the same week, the contribution shall jail due: on such days as may be specified in the regulations. Section 40 provides that the principal employer is to pay contributions in the first instance and it contains as follows : "(1) The principal employer shall pay In respect of every employee, whether directly employed by him or by or through an immediate employer, both the employer's contribution and the employee's contribution. (2) Notwithstanding anything contained in any other enactment but subject to the provisions of this Act and the regulation, if any, made thereunder, the principal employer shall in the case of an employee directly employed by him (not being an excerpted employee); be entitled to recover from the employee the employee's contribution by deduction from his wages and not otherwise; Provided that no such deduction shall be made from any wages other than such as relate to the period or part of the period in respect of which the contribution is payable, or in excess of the sum representing the employee's contribution for the period (3) Notwithstanding any contract to the contrary neither the principal employer nor the immediate employer shall be entitled to deduct the 'employer's contribution from any wages payable to an employee or otherwise to recover it from him. (4) Any sum deducted by the principal employer from wages under this Act shall be deemed to have been entrusted to him by the employee for the purpose of paying the contribution in respect of which it was deducted. (5) The principal employer shall bear the expenses of remitting the contributions to the Corporation." 16. Section 85 provides for punishment for failure to pay contributions. 17. Section 85B confers power on the Corporation to recover damages and sub-s. (1) thereof with which we are concerned in this case provides as follows : "(1) Where an employer fails to pay the amount due in respect of any contribution or any other amount payable under this Act, the Corporation may recover from the employer such damages not exceeding the amount of arrears as it may think fit to impose: Provided that before recovering such damages the employer shall be given a reasonable opportunity to being heard." 18. Regulation 2(a) defines ‘contribution card' as it card issued in respect of an insured person for the purpose of affixing contribution stamps or recording otherwise the contribution paid in respect of such person under the Act. the regulations 26, 29, 30 and 31 are as follows: "26. Regulation 2(a) defines ‘contribution card' as it card issued in respect of an insured person for the purpose of affixing contribution stamps or recording otherwise the contribution paid in respect of such person under the Act. the regulations 26, 29, 30 and 31 are as follows: "26. Contribution lards to be sent to appropriate office An employer, being in possession of Contribution card in respect of any person, shall send it by registered post or messenger, together with a return in duplicate in Form 6 to the appropriate office (a) within 7 days of the date on which be comes to know of the death of such person; (b) within 7 days of the date of receipt of requisition in that behalf from the appropriate office; (c) within 42 days of the termination of the contribution period to Which it relates. (d) within 28 days of the' date of permanent closure of the factory 29. Payment of contribution by stamps.- Every contribution payable under the Act shall, except as otherwise provided herein, be paid by affixing contribution stamps on the contribution card of the employee in the space indicated for that purpose upon the Card. The contribution stamps shall be of such shape and design as the Corporation may, from time to time, determine and shall be sold in such manner and at such agencies as the Corporation may notify from time to time; Provided that in the case of an exempted employee in respect of whom c0ntClbution would have been payable if the provisions of Chapter V-A of the Act had not been in force the fact that Such contribution would have been so payable shall be indicated by affixing a token stamp on the Contribution Card of that employee in the space provided for the purpose. Contribution stamps shall be purchased from an agency duly authorised by the Corporation and from no other source. Stamps once purchased from an authorised agency shall not be transferable thereafter. contribution stamps purchased otherwise than in accordance with the provisions of this regulation shall not be deemed to be contribution stamps for the purposes of these regulations. 30. Contribution stamps shall be purchased from an agency duly authorised by the Corporation and from no other source. Stamps once purchased from an authorised agency shall not be transferable thereafter. contribution stamps purchased otherwise than in accordance with the provisions of this regulation shall not be deemed to be contribution stamps for the purposes of these regulations. 30. Contribution, Stamps/Franking Book Every employer shall keep a Contribution Stamp/Franking book in such form as may be prescribed by the Director-General from time to time in which shall be entered all purchases settings and utilisation of contribution stamps/franks, as the calc may be, by the employer and such book shall be open to inspection by an Inspector or another officials of the Corporation authorised by it. " 31. Time for payment of contribution An employer who is liable to pay contribution in respect of any employee; shall pay those contributions within the following periods :- (a) within 21 days of the last day of the wage-period in which the contribution falls due; (b) within 14 days of the termination of employment, irrespective of whether the employment is terminated with or without notice; (c) within 21 days after the termination of the contribution period in respect of every employee. whichever period is earlier: Provided that in the case of an exempted employee the token stamp in respect of any week shall be fixed within such time as the contribution in respect of that week would have been payable if the provisions of Chapter V-A of the Act had not been in force. Explanation-For the purpose of this regulation, the expression "wage period" shall have tile meaning assigned to it in Schedule I to the Act.” Original Regulation 31A was in following terms : "31A Interest on contributions due but not paid in time – An employer who fails to pay contributions within the periods specified in Regulation 31 or within such time as may be specified by the Central Government under S. 73A of the Act for the purpose of that Section, as the case may be, shall be liable to pay also interest at the rate of 6 per cent per annum in respect of each day of default or delay in payment of contribution." 19. the substituted S. 31A introduced by the Employees State Insurance (General) (Amendment) Regulations, 1977 is as follows : "31-A. Interest on contributions due but not paid in time-An employer who fails to pay contributions within the periods specified in Regulation 31 shall be liable to pay interest at the rate of 6 per cent per annum in respect of each day of default or delay in payment of contributions: Provided that where the contribution is paid by affixing the contribution stamps, the employer shall be deemed to have not paid the contributions in time if he fails to submit the contributions card within the time prescribed under Regulation 26 " 20. In our view the notice does not speak of two defaults as contended on behalf of the respondents. The notice first says that the appellant is required to pay contributions in accordance with S. 40 of the said Act. On a fair reading of the notice it appears to us that the charge against the appellant company is that as there is default in payment of contribution as provided in the Regulation 26 in rime there is failure to pay the contribution. It is also clear from the annexure to the notice that failure to pay contribution arose due to non-submission of contribution card within the time as specified in Regulation 26. Amount of damages claimed in the annexure to the notice is also on the basis of the charge of non-payment of contribution within the time stipulated in the Regulation 26. Therefore, from the aforesaid fact it is clear that the only charge against the appellant in the notice is as stated by the appellants’ counsel. That this is also the position, is clear from paragraphs 7, 11 and 14 of the affidavit-in-opposition extracted earlier. 21. The charge therefore, against the appellant in the notice is default in payment of contribution within the time specified in Regulation 26 for which damages under S. 85B(1) has been claimed. It will therefore, have to be seen whether the charge and claim are valid and sustainable under the said Act and the said Regulation. 22. From the provisions of the said Act and the said Regulation set out hereinbefore it appears that contribution required to be paid by an employer under S. 40 of the said Act is to be paid within the time fixed by Regulation 31. 22. From the provisions of the said Act and the said Regulation set out hereinbefore it appears that contribution required to be paid by an employer under S. 40 of the said Act is to be paid within the time fixed by Regulation 31. Regulation 26 speaks of submission of the contribution cards within the time as specified therein, From the provisions of the said Act and the said Regulations it is quite clear that payment of contribution and submission of contribution cards are two different things. Maybe the purpose for submission of the contribution card to the appropriate office as directed by Regulation 26 is for the purpose of checking whether the contribution, when it is paid by affixing contribution stamp on the card under Regulation 29, has been paid or not. But certainly neither the submission of the contribution can be equated to the payment of contribution nor can the default in submission of the contribution card within the time specified in Regulation 26 be equated to default in payment of contribution the provisions of the said Act and the said Regulation do not support the contention of the respondents as stated in the affidavit-in-opposition and urged before us in this appeal. We arc, therefore, of the view that non-submission of contribution card within the time specified in Regulation 26 does not amount to failure of payment of contribution as required to be paid under S. 40. Section 85(1) however says that the Corporation ill entitled to impose damages where the employer fails to pay the amount due in respect of any contribution or any other amount payable under the said Act. Therefore, the Corporation's right to recover damages is limited to cases of non-payment of contribution or any other amount payable under the said Act by an employer. Hence, if default on the part of no employer to submit the contribution card within the time specified in Regulation 26 does not amount to a failure on his part to pay the contribution, then for such default the Corporation cannot hold the employer liable for payment of damages under S. 85B(1) In the above view of the matter the notice cannot be sustained. We, therefore, hold that the notice dated 25th March, 1977 proposing to impose damages upon the appellant is invalid and without Jurisdiction and bench the same is liable to be struck down. We, therefore, hold that the notice dated 25th March, 1977 proposing to impose damages upon the appellant is invalid and without Jurisdiction and bench the same is liable to be struck down. For all the reasons stated above we are unable to agree with the findings of the learned Judge of the Court of the first instance or with his reasonings for the findings recorded in the judgment appealed against. Therefore, the appeal, in our view, should succeed. The appeal is allowed and the judgment and order of the Court of the first instance are set aside. Rule Nisi dated 28th July, 1977 is made absolute. In the facts and circumstances of this case we do not make any order as to cost. GHOSE, J. I agree. Appeal allowed.