Judgment :- Y. VENKATACHALAM, J. Invoking Article 226 of the Constitution of India, the petitioners herein have filed the present writ petition seeking for a writ of certiorari to call for the records in order No. TN/INS-VI/51/9236-09, dated August 11, 1992, and to quash the same. In support of the writ petition, the petitioner herein has filed an affidavit wherein they have narrated all the facts and circumstances that forced them to file the present writ petition and requested this Court to allow the writ petition as prayed for. Per contra, on behalf of the respondent, a counter-affidavit has been filed rebutting all the material allegations levelled against them, one after the other, and ultimately they have requested this Court to dismiss the writ petition for want of merits. The petitioner is a registered company and is manufacturing biscuits, bakery and other confectioneries and they employ about 1, 040 number of workmen, and has its factory at Padi, Madras. The employees of the petitioner-company are covered under the Employees' State Insurance Act and contributions in respect of them have been paid regularly to the Employees' State Insurance Corporation. The respondent herein issued a notice No. TN/INS-51/9236-09, dated November 16, 1989, calling upon the petitioner to show cause as to why contributions should not be recovered in respect of payments made to certain contractors engaged by the petitioner for putting up construction of R & D centre canteen block and for maintenance and repair of buildings, vide show cause notice dated November 16, 1989. The respondent demanded a sum of Rs. 7, 44, 854.14 as contribution in respect of the employees engaged by the contractor for various purposes in the petitioner establishment. A reply dated December 13, 1990, was sent to the respondent denying the liability of the petitioner towards the contributions demanded under the show-cause notice dated November 16, 1989. The claims made against the petitioner in respect of the employees engaged through contractors related to the construction of the R & D Centre, which is a separate unit operating under its own factory licence and has got no functional nexus with the petitioner factory. That apart, the canteen block is not part of the activities of the factory since it came into existence only in August, 1988. That apart, the canteen block is not part of the activities of the factory since it came into existence only in August, 1988. Further, regarding the demand of contribution for the welfare centre, it is the case of the petitioners that the same has been constructed outside the factory premises and it is not part of any work, which is ordinarily part of the work of the factory or establishment. They also filed an application dated February 13, 1990, to implead the contractors to whom the job of the construction was entrusted to, and the application filed by the petitioner was allowed an notice was issued by the respondent to the three contractors calling upon them to appear for enquiry and to produce records. Pursuant to the notice issued by the respondent all the three contractors appeared before the respondent for enquiry and submitted records to show the details of the payment made to them under the building contract. The respondents, after conducting elaborate enquiry for more than a year and after perusing the records and all the documents filed by the petitioner and the contractors, issued his order under Section 45-A of the Employees' State Insurance Act dated June 18, 1991, determining a sum of Rs. 1, 26, 320 as contribution for the period December 1, 1985, to March 31, 1989, together with interest at 6 per cent. per annum till October 19, 1989, and 12 per cent. per annum from October 20, 1989, till the date of the order. In the said order dated June 18, 1991, issued by the respondent under Section 45-A of the Employees' State Insurance Act, the liability of each of the individual contractors was determined by the respondent himself. The petitioner herein without prejudice to any of the rights, paid a sum of Rs. 1, 26, 320 determined as contribution payable together with interest of Rs. 24, 127.15 by the respondent by his order dated September 24, 1991. The respondent herein issued a notice dated September 24, 1991, calling upon the petitioner to show cause as to why damages should not be levied under Section 85-B(1) of the Employees' State Insurance Act for the delayed payment of ESI contribution, for which proceedings were earlier initiated. A detailed reply was sent by the petitioner denying their liability for any damages. A detailed reply was sent by the petitioner denying their liability for any damages. According to them, even though the principal employer was liable to ensure that the employees of the contractors are covered under the Employees' State Insurance Act, no liability for any penal damages could be cast upon the petitioner under the provisions of the Employees' State Insurance Act. Further, according to them, since the contractors themselves have been made parties to the proceedings under Section 45-A of the Act, notices have to be issued to the contractors and proceedings for damages can be initiated only against them for the recovery of damages. However, the respondent has issued order dated August 11, 1992, levying a sum of Rs. 50, 265 as damages for delayed payment of contribution under Section 85-B of the Employees' State Insurance Act. Aggrieved by the said order, the petitioners have come forward with the present writ petition.Per contra, in the counter-affidavit filed by the respondent, inter alia, it is contended by them that the employer was issued a notice in Form No. C-18 (ad hoc basis), dated November 16, 1989, proposing to determine contributions in respect of the employees employed through the contractors, that during the personal hearing given to the employer to enable him to explain his case with relevant records, the contractors also were called to the personal hearing, their views were heard and their records were verified to arrive at the wages; labour charges and order under Section 45-A dated June 18, 1991, determining, the quantum of contribution payable were issued and that the employer paid the quantum of contribution so determined and also paid Rs. 24, 127.15 towards interest up to the date of actual payment. According to them, subsequently the employer was issued notice dated September 24, 1991, proposing to levy damages on the contributions so paid, that the employer was given the opportunity of personal hearing, which was attended to by the employer, that the respondent-Corporation, after the personal hearing issued order under Section 85-B, dated August 11/13, 1992, determining the quantum of damages payable as Rs. 50, 265 against which, the employer has filed the present writ petition. 50, 265 against which, the employer has filed the present writ petition. It is contended by them that, as per Section 40 of the Act, the principal employer is primarily responsible to pay contributions in respect of every employee, whether directly employed by him or through an immediate employer, both the employer's contribution and the employees' contribution, and also the principal employer shall bear the expenses of remitting the contributions to the Corporation. According to the respondent, since it is the statutory responsibility of the principal employer, as held by the Apex Court in the case of Employees' State Insurance Corporation v. Harrison Malayalam P. Ltd. 1994-I-LLJ-12, he should pay contributions on the appointed date in respect of employees directly employed by him or those employees employed by or through contractor, and that any delay in payment of contributions on the due date would attract all penal provisions contemplated in the Act, including levy of interest and damages, and once the default is made by the principal employer, in this regard, he cannot absolve himself of the responsibility for the delay and the consequential penalties like interest and damages. They also contend that the Act does not authorise the immediate employer to directly pay the contributions to the Corporation and the Corporation cannot also directly call upon the immediate employer to pay the contribution and attendant consequences such as interest and damages. Thus, it is their clear case that the principal employer alone is responsible for payment of contribution in respect of the employees including those employed through immediate employers on the due date, and hence any default by the principal employer to pay the contribution on the due date cannot absolve him of the responsibility for the delay and the consequent penalties like damages, etc. Further, according to them, it is also not obligatory on the part of the respondent's - Corporation to implead the contractors in the proceedings under Section 45-A. But, however, in this case they were called to attend the personal hearing given to the petitioner-employer, as a special case on the employer's request and as a matter of good gesture their views were heard and the records made available were verified only with a view to arrive at the wages; labour charges in the interest according to the actuals. That apart, it is also contended by them that damages is a penal provision under Section 85-B of the Act and when the 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 by way of penalty, such damages, not exceeding the amount of arrears as may be specified in the regulations and also that the Apex Court has already upheld the levy of damages on the defaulting employers, and that, therefore, the writ petition is devoid of merits.In the above facts and circumstances of the case, the arguments advanced by learned counsel appearing for the rival parties were heard. I have perused the contents of the affidavit and the counter-affidavit together with all other relevant material documents available on record in the form of typed set of papers. I have also taken into consideration the various points raised by learned counsel appearing for the respective parties during the course of their arguments. That being so, in the above case, the only point that arises for consideration herein is as to whether there are any valid grounds to allow this writ petition or not. Having seen the entire material available on record and from the facts and circumstances of the case and also from the claims and counter-claims made by the parties herein challenging the impugned order, it is contended by the petitioner herein that the order of the respondent suffers from errors apparent on the face of the record and is liable to be set aside, that the power is conferred on the, authorities only for the recovery of contributions and that too within the narrow confines of Sections 40 and 41 and that Section 85-B of the Employees' State Insurance Act does not specifically provide for casting penal liability on a principal employer when there is a failure to pay contribution in respect of the employees engaged through a contractor, and in the absence of a specific provision in this regard, it is contended by them that it would not be open to the respondent to make the petitioner liable for damages for any delayed payment of contributions in respect of the employees engaged through a contractor. The petitioner also contended that since the liability of the contractors themselves have been determined separately in the proceedings under Section 45-A, the respondent ought to have initiated proceedings for the levy of damages only against the contractors, and the failure of the respondent to do so clearly vitiates the entire order rendering it liable to be set aside. Further it is also contended by the petitioner that the attempt of the respondent to merely brush aside the contention of the petitioner on the ground that the liability of the principal employer for damages has been well settled is without basis, since the liability for damages has not been settled by any decision of either this Court or the Apex Court. Hence, according to the petitioner, the order of the respondent levying damages on the petitioner is liable to be set aside.By virtue of the impugned order herein, the petitioner herein was imposed damages totalling to Rs. 50, 265 for the delayed payment of contribution for the wage period as mentioned in the damage notice. In this case, such imposition of damages on the petitioner is challenged. In this case, it is admitted by the petitioners herein that the employees in question herein were engaged not by them but by the contractors for various purposes in the petitioner establishment. The respondent demanded certain amount as contribution in respect of the said employees. The petitioner objected to the same and representations were sent and ultimately, the respondent after conducting elaborate enquiry for more than a year and after perusing the records and all the documents filed by the petitioner and the contractors, issued his order under Section 45-A of the Act dated June 18, 1991, determining a sum of Rs. 1, 26, 320 as contribution also with interest. The petitioner without prejudice to any of the rights paid a sum of Rs. 1, 26, 320 determined as contribution payable together with an interest of Rs. 24, 127.15. Thereafter, the respondent herein issued a notice dated September 24, 1991, calling upon the petitioner to show cause as to why damages should not be levied under Section 85-B(1) of the Act for the delayed payment of ESI contribution. That also was resisted by the petitioners herein. Ultimately, the respondent passed the impugned order on August 11, 1992. 24, 127.15. Thereafter, the respondent herein issued a notice dated September 24, 1991, calling upon the petitioner to show cause as to why damages should not be levied under Section 85-B(1) of the Act for the delayed payment of ESI contribution. That also was resisted by the petitioners herein. Ultimately, the respondent passed the impugned order on August 11, 1992. That being so, in this case, it is significant to note that a plain reading of Sections 2(9), 38 and 39 would show that contributions shall be paid in respect of all employees, whether directly paid by the principal employer or through immediate employer, on the dates it fell due, and Section 40 casts the responsibility to pay the contributions, both employees' and employer's share, from immediate employer as provided under Section 41 of the Act. That apart, this aspect of the matter is in a way admitted by the petitioners themselves and it is not seriously disputed by them. Because even, according to, them, it is their case that, "A reading of Section 41 clearly brings about the legislative intendment in making the principal employer liable for paying the contribution in the first instance, and thereafter, to recover the same from the contractor in exercise of the powers under Section 41 of the Act." (Averment in the affidavit of the petitioner paragraph VI (grounds) at page 7). But, however, it is their strong contention that the very fact that Section 41 does not provide for recovery of damages clearly shows that the principal employer was never intended to be made liable for any damages, and hence, the proceedings initiated by the respondent for damages against the petitioner is wholly without jurisdiction. Such a contention of the petitioner cannot be accepted. Because in this case, admittedly there is delayed contributions by the petitioner. Further, it is significant to note that Section 20 enjoins on the principal employer the statutory responsibility to pay contribution not only in respect of his employees but also in respect of the employees employed by or through the contractors and Section 41 entitles the principal employer to recover the contribution so paid in respect of the employees employed by or through the immediate employers. Thus, it is the categoric contention of the respondent that the over all responsibility to pay the contribution in respect of contractor employees rests with the principal employer and hence he alone is responsible for any default/delay as well as penalties like payment of interest/damages. In this regard it is relevant to mention that since the principal employer is made responsible for payment of contribution in respect of the employees employed by or through the immediate employers, he cannot be absolved of the consequences emanating out of their own inaction. Thus, it is made very clear that the principal employer alone is responsible for payment of contributions in respect of the employees, including those employed through immediate employers, on the due date and hence any default by the principal employer to pay the contribution on the due date cannot absolve him of the responsibility for the delay and the consequent penalties like damages, etc. Therefore, in view of the above facts and circumstances of the case on hand, I see every force in the above contentions raised by the respondent in this case. Consequently, I do not see any illegality or impropriety in the order impugned in this writ petition.Therefore, for all the aforesaid reasons and in the facts and circumstances of the case and also in view of my above discussions with regard to the various aspects of the case I am of the clear view that the petitioner herein has failed to make out any case in their favour, and that, therefore, there is no need for any interference with the order impugned in this writ petition. Thus, the writ petition fails and the same is liable to be dismissed for want of merits. In the result, the writ petition is dismissed. No costs. Consequently, W.M.P. No. 19209 of 1992 also is dismissed.