Section 128: Power to recover damages

The Code on Social Security, 2020 (Act No. 36 of 2020) • Official Statutory Text & Plain English Practice Guide

Statutory Mandate
Chapter XI: Authorities, Assessment, Compliance and Recovery
Competent Labour Forum
Act No. 36 of 2020

Legal Commentary & Landmark Judgments: Section 128

Section 128 of the Code empowers the Central Board, Corporation, or authorized officer to recover punitive damages from an employer who defaults in the payment of any contribution, penalty, or social security dues, up to the statutory ceiling.

  • Punitive & Compensatory Dual Nature of Damages: Authorizes the recovery of damages up to one hundred percent of the defaulted contribution arrears, functioning as both financial penalty and deterrence.
  • Mandatory Requirement of Pre-Assessment Hearing: Obligates the authorized officer to issue a formal show-cause notice and provide a reasonable opportunity of hearing before determining damages.
  • Mitigating Factors in Assessing Damages: Directs the authority to evaluate mitigating circumstances, including sick industrial status, sudden business insolvency, and voluntary pre-inquiry liquidation of dues.
Key Landmark Precedents:
  • Organo Chemical Industries v. Union of India (1979) 4 SCC 573: Landmark ruling: Supreme Court upheld the constitutional validity of punitive damages under social security law, holding that 'damages' encompasses both reparation for social loss and deterrent punishment for delinquency.
  • Hindustan Times Ltd. v. Union of India (1998) 2 SCC 242: Supreme Court held that the authority must exercise discretion judiciously, considering mitigating factors; damages cannot be imposed mechanically at the maximum statutory ceiling.
  • McLeod Russel India Ltd. v. Regional Provident Fund Commissioner (2014) 15 SCC 263: Supreme Court affirmed that mens rea or willful contumacious conduct is an essential element in assessing penal damages under social security legislation.
Courtroom Practice & Strategic Litigation Guidance:

In Section 128 damages hearings, rely on McLeod Russel to establish absence of mens rea: present evidence of banking technical failures, severe customer default, or government payment delays to persuade the officer to impose minimal nominal damages.