DEPUTY REGIONAL DIRECTOR Vs. VIRGILIO VELHO

JUDGEMENT

(1.) THIS appeal arises from judgment and order dated 27th April 1994, passed in Case No. EIC/9/87 by the Employees Insurance Court at Panaji (hereinafter called as the Insurance Court ). By the impugned judgment, the Insurance Court has set aside the order of the Deputy Regional Director passed under section 45-A of the Employees State Insurance Act, 1948 (hereinafter called as the said Act) on 17-4-1986. By the said order, the respondent was called upon to contribute an amount of Rs. 8,978. 80 for a period from 1-3-1984 to 31-1-1986 plus interest amount of Rs. 1,932. 50 along with further interest at the rate of 6% with effect from 1-2-1986 onwards within a period of 15 days from the date of receipt of the said order. The contention of the appellant is that since the respondent refused to comply with the provisions of the said Act and the Rules made thereunder on the purported plea that the establishment of the respondent is not covered by the provisions of the said Act, the appellant was constrained to pass the said order under section 45-A of the said Act. The Insurance Court, however, has held that all the employees working in the premises of the establishment of the respondent are not the employees of the respondent, but they are the employees of the trading concerns in the said premises and, therefore, the respondent is not liable to make any contribution under the said Act, as demanded by the appellant by its order dated 17-4-1986.

(2.) THE facts, in brief, relevant for the decision are that the premises of the respondent situated at Panaji were inspected on 20th October, 1984 as well as on 30th October 1984 by Shri G. S. Murthy, Inspector of E. S. I. Corporation. On inspection it was found that the establishment of the respondent was a departmental store and there were different counters therein given on contract basis to different trading concerns, under agreement with each of those trading concerns by the respondent. A copy of such contract between those trading concerns and the respondent was also made available to the Inspector. It was found to have in all 24 persons employed in the said establishment including those employed by counter-holders as well as by the respondent. It was also found that whenever customers used to purchase articles, the bills were prepared from the bill-book in the name of the respondent and the bill amount was also collected by the cashier employed by the respondent. It was further found that at the end of the day, after deducting the commission charges of the respondent, the remaining amount was paid to the respective counter-holders. On the basis of information collected, the said order dated 17-4-1986 was passed and being aggrieved, the respondent preferred appeal under section 75 of the said Act. Before the Insurance Court, the respondent examined Mr. Virgilio Velho, Mrs. Wilma Cabral, Mr. Sitaram Yeshwant Karapurkar, Mr. Suryakant V. Kavlekar and Mr. Vasco Fernandes Pinho, whereas the appellant examined Shri G. S. Murthy, as the witnesses. The respondent produced various documents in the course of deposition including the correspondence with the Inspector of the Corporation, copy of contract with the counter-holders in the premises, the registers, etc.

(3.) AT the outset, Shri G. K. Sardessai, learned Advocate appearing for the respondent, raised a preliminary objection regarding maintainability of the appeal on the ground that there is no substantial question of law arising for consideration in the matter and that the proposed points enumerated in the memo of appeal do not disclose substantial questions of law. Drawing my attention to various decisions including that of the Division Bench of this Court, the learned Advocate submitted that section 82 of the said Act which deals with the appeals under the said Act clearly provides that the appeal can lie only in case of involvement of substantial questions of law and not otherwise. He further submitted that the provisions of Civil Procedure Code, more particularly those which are contained in section 103 of Civil Procedure Code are not attracted in cases of appeals under the said Act and, therefore, the scope of enquiry under section 82 of the said Act is very limited strictly confined to the substantial questions of law. Unless the party approaching the Court points out a substantial question of law, the appeal is not maintainable. In the instant case no substantial questions of law as such have been pointed out to be arising for consideration. According to the learned Advocate, therefore, the same is liable to be dismissed in limine. He sought to rely upon the judgment of the Division Bench of this Court in the matter of (Dainik Deshdoot and others v. The Employees State Insurance Corporation and others), reported in 1995 (I) C. L. R. 446 and of the learned Single Judge of this Court in the matter of (Employees State Insurance Corporation, Bombay v. Western India Theatres Ltd. Bombay), reported in 1995 (II) C. L. R. 459. He also placed reliance on a judgment of the another learned Single Judge of this Court in the matter of (M/s. Bharti Udyog v. Regional Director Employees State Insurance Corporation), reported in 1982 Lab. I. C. 1644 and of the Division Bench of Calcutta High Court in the matter of (Shalimar Rope Works Ltd. and another v. Employees State Insurance Corporation), reported in 1971 Lab. I. C. 1551. As against this, it is the contention of Shri M. S. Sonak, learned Advocate for the appellant, that the points enumerated in the memo of appeal clearly disclose the substantial questions of law involved in the matter and, therefore, interference by this Court is certainly warranted. According to the learned Advocate, failure on the part of the Insurance Court to consider the provisions contained in the said Act in relation to the expression "employee", "immediate employer" and "principal employer" and incorrect approach on the part of the Insurance Court in the matter of assessment of evidence on record and material irregularities committed by the Insurance Court while arriving at the finding that the respondent is not covered by the provisions of the said Act, clearly give rise to the substantial questions of law as proposed and disclosed in the memo of appeal. Besides, the failure of proper interpretation of the said terms under the said Act and lapse on the part of Insurance Court to take note of the decisions of the Supreme Court on some of the points involved in the matter certainly justify interference of this Court in exercising its powers under section 82 of the said Act.