JUDGMENT Subramonian Poti, J. 1. The respondent is the owner of a cashew processing industry falling within the coverage of the Employees' State Insurance Act, 1948. Alleging delay in the payment of contributions under the said Act for the period from 30th March 1975 to 27th September 1975, 1st June 1975 to 29th November 1975, 27th September 1975 to 31st January 1976 and 28th September 1975 to 27th March 1976 damages under section 85B was imposed against the respondent. Thereupon the respondent moved the Employees' State Insurance Corporation for a declaration that the claim for damages was unsustainable. The application stands allowed by the order of the Employees' Insurance Court. In support of this conclusion the court found that through contribution cards had not been submitted to the Employees' State Insurance Corporation in time, the amount due towards contribution had been accounted in time as it was evident that the contribution stamps required to be affixed on the contribution records had been purchased earlier. It was further found that damages were not recoverable without proof of loss and since no loss to the Corporation has been shown the claim by the Corporation[1] must fail. This appeal is at the instance of the Employees' State Insurance Corporation. 2. This Court had occasion to express its view on the question whether loss to the Corporation has to be shown to claim damages. This was in the judgment in M.F.A. 438 of 1978 ( I.L.R. 1980 (1) Kerala 465). This Court noticed the provisions in the regulations for levy of interest at a rate of 6 per cent on delayed payment of contribution and in the context of such a provision and in the light of the use of the term 'imposition' in section 85B this court held that what was levied under section 85B was not any compensation, but was in the nature of penalty. The punitive element is indicated by the term 'impose' appearing in section 85B. If so, damages need not be taken to be compensation for loss either to the employees or to the Corporation. This answers the finding of the Employees' Insurance Court. We may also point out that the same view has been expressed by the Supreme Court in the recent decision reported in Organo Chemical Industries v. Union of India A.I.R. 1979 S.C. 1803. This answers the finding of the Employees' Insurance Court. We may also point out that the same view has been expressed by the Supreme Court in the recent decision reported in Organo Chemical Industries v. Union of India A.I.R. 1979 S.C. 1803. No doubt, that was a case where it was the provision in section 14B of the Employees' Provident Fund Act that came up for consideration. But what has been said in the context of claim for damages under that Act would equally well apply to section 85B of the Employees' State Insurance Act. 3. Though the Corporation succeeds in its plea that the Employees' Insurance Court was in error in declining to uphold imposition of levy of damages under section 85B on the plea that loss to the Corporation had not been shown, there is a further point which calls for consideration. The Court has found that there has been no delay in the matter of making payments and the finding of the Insurance Court is sought to be sustained at the hearing by counsel for the respondent. 4. Section 85B of the Act deals with the power of the Corporation to recover damages from an employer "where an employer fails to pay the amount due in respect of any contribution or any other amount payable under this Act". The quantum of such damages is such amount as the Corporation may think fit to impose. The power to impose damages would arise only if it is shown that an employer has failed to pay the amount due. It is contended for the employer that mere delay in payment would not attract section 85B. It is one thing to say that a person has failed to pay and another that he has not paid in time. Where he has failed to pay on the stipulated date he no doubt fails to pay in time. If he has paid later before he is charged with failure to pay it may be that it cannot be said that he has failed to pay. This is the contention of counsel Sri Krishnamoorthy. We are not called upon to decide this question in this case for, even without the decision of it we could dispose of the case. Among that the section applies even to delayed payment. 5. This is the contention of counsel Sri Krishnamoorthy. We are not called upon to decide this question in this case for, even without the decision of it we could dispose of the case. Among that the section applies even to delayed payment. 5. Learned counsel Sri Krishnamoorthy contends that payment under the Act is a matter to be provided for by regulations and Regulation 29 of the Employees' State Insurance (General) Regulations, 1950 provides that every contribution payable under the Act, shall, except so otherwise provided in the Regulations be paid by affixing contribution stamps on the contribution cards of the employees and therefore the mere fact that contribution cards are submitted out of time will not mean that there has not been a payment in time. According to counsel, even if section 85B enables imposition of damages for delayed payment, the case set up by this Corporation being only that there was delay in filing the contribution cards that will not lead to the inference that there was delay in payment. If so section 85B will not be attracted. To appreciate this plea it may be necessary to refer to the relevant provisions. Section 43 of the Act deals with the mode of payment of contribution. That reads as follows Method of payment of contribution. If so section 85B will not be attracted. To appreciate this plea it may be necessary to refer to the relevant provisions. Section 43 of the Act deals with the mode of payment of contribution. That reads as follows Method of payment of contribution. Subject to the provisions of the Act, the Corporation may make regulations for any matter relating or incidental to the payment and collection of contributions payable under this Act and without prejudice to the generality of the foregoing power such regulations may provide for-- "(a) the manner and time of payment of contributions; (b) the payment of contributions by means of adhesive or other stamps affixed to or impressed upon books, cards or otherwise and regulating the manner, times and conditions in, at and under which, such stamps are to be affixed or impressed; 80 (b) the date by which evidence of contributions having been paid is to be received by the Corporation; (c) the entry in or upon books or cards of particulars of contributions paid and benefits distributed in the case of the insured persons to whom books or cards relate; and (d) the issue, safe custody, production, inspection and delivery of books or cards and the replacement of books or cards which have been lost, destroyed or defaced." It is evident from this provision that the manner and time of payment of contribution is to be defined by the regulations. The regulations are also to provide the date by which evidence of contributions having been paid is to be received by the Corporation. Section 87, of the Act deals with the power of the Corporation to make regulations. The Employees' State Insurance (Gen.) Regulations, 1950 have been framed under section 97 of the Act. The manner of payment of contributions is dealt with in Regulation 29 as already indicated. That reads: 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 cards of the employee in the space indicated for that purpose upon the card. The manner of payment of contributions is dealt with in Regulation 29 as already indicated. That reads: 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 cards 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 contribution would have been payable if the provisions of Chapter VA 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. Regulation 34 provides that the employer shall, immediately after affixing a contribution stamp to any contribution card, cancel the stamp by writing in ink or doing such other act as indicated in the Regulations. Regulation 31 deals with the time for payment of contribution and that is within 21 days of the last day of the wage period in which the contribution falls due, within 14 days of the termination of employment and within 21 days of the date after the termination of the contribution period in respect of every employee whichever period is earlier. The provision in Regulation 26 concerns the obligation of the employer to send by registered post or messenger together with a return in duplicate in Form 6 the contribution card within the specified period. Such period is specified with reference to the death of the person, date of receipt of requisition, the date of termination of the contribution period and the date of permanent closure of the factory. It is sub-clause (c) of Regulation 26 that which applies to this case. Such period is specified with reference to the death of the person, date of receipt of requisition, the date of termination of the contribution period and the date of permanent closure of the factory. It is sub-clause (c) of Regulation 26 that which applies to this case. That provides that the contribution card shall be sent by registered post or messenger, together with a return in the duplicate within 42 days of the termination of the contribution period as the term defined in the Employees' State Insurance Act. Section 2 (5) defines it as meaning such period being not less than 25 but not exceeding 27 consecutive weeks or six consecutive months, as may be specified in the regulations. Thus, we find in these provisions matters concerning the mode of payment of contribution, the time of payment of contribution and the time within which and the manner in which evidence of payment of contribution is to be sent to the appropriate office. The mode of payment is by affixing contribution stamps on the contribution cards, the time is within 21 days of the expiry of the contribution period and the evidence of payment is to be furnished by sending by registered post or messenger within 42 days of the termination of the contri?ution period. Section 85B, we must remember, is a penal provision, which enables the imposition of damages on failure to pay. The obligation to pay is discharged by making payment in the manner provided in the Regula?ions. The manner being that of affixture of stamps on the contribution card, once such stamps are fixed there is. no question of default of payment. The failure to produce evidence of such payment is different from failure to pay and failure to produce evidence of such payment does not attract section 85B of the Act. The result therefore is that in a case where what is urged is merely delay in filing contribution cards and it is also shown that such contri?ution cards are not filed within the time specified in Regulation 26 there will be no justification to impose a penalty under section 85B. The notice issued to the respondent here is in a cyclostyled form, the statement appended to which states the delay in submission of contribution cards. Evidently imposition of damages is based on such delay. 6. The notice issued to the respondent here is in a cyclostyled form, the statement appended to which states the delay in submission of contribution cards. Evidently imposition of damages is based on such delay. 6. It is true that as the Regulations now stand when the party says that he has paid the contribution in time the Corporation will not be in a position to verify it. Payment is made to depend on an act on the part of the employer which act, as regulations stand, cannot be verified by the Corporation. Possibly if the intention of the authority making the regulation was to make the date of despatch of the evidence of payment under Regulation 26 as the date with reference to which default is to be determined, that intention is not expressed by the Regulations as they stand now. It is true that in practice our decision may put the Corporation to some administrative inconvenience. But the remedy lies in attending to the regulations forthwith, keeping in mind that as it stands, Regulation 29 requires only affixing of contribution stamps on contribution cards to satisfy the requirement of payment of contribution and delay in the submission of contribution cards cannot be taken to mean delay in payment so as to attract section 85B of the Act. It will be worth while to bestow immediate attention on the Regulation so as to meet the situation. 7. In the case here action has evidently been taken for delayed submission of contribution cards. It was the respondent's case that the respondent had affixed stamps on contribution cards in the time. It was to prove that point that attempt was made to show that a substantial quantity of contribution stamps had been purchased prior to the date the contributions became due. In so far as it has not been established that the delay was in payment and not in delayed submission of contribution cards the imposition of damages under section 85B cannot be justified. The result is that though we agree with the corporation on the question that loss need not be shown to impose damages under section 85B the appeal fails for other reasons as indicated above. The appeal is dismissed. No costs.