HIGH COURT OF ORISSA: CUTTACK M.A. No. 335 of 1997 From a judgment dated 17.02.1997 passed by Sri G.Narasingham, District Judge-cum-Employees’ State Insurance Court, Cuttack in E.S.I. Misc. Case No. 10 of 1994. ---------- The Employees’ State Insurance Corporation, represented through its Regional Director, Janpath, Unit-IX, At/P.O./PS. Bhubaneswar, Dist: Khurda. …..… Appellant -Vrs- Sri Nityananda Swain and others ……. Respondents For Appellant : M/s.D.P.Ray, N.D.Tripathy A.P. Ray. For Respondents : M/s. H.S. Mohanty & D.K. Bhoi (R – 1) Mr. N. Praharaj (R- 3) M/s. H.S. Mohanty, P.K.Rout, S.K. Biswal (For Respondent Nos. 2(a) & 2(b). ----------- P R E S E N : THE HON’BLE MR. JUSTICE B.N. MAHAPATRA -------------------------------------------------------------------------------------- Date of Hearing : 25.02.2011 : Date of Judgment: 06.05.2011 -------------------------------------------------------------------------------------- B.N. MAHAPATRA, J. This appeal under Section 82(2) of the Employees’ State Insurance Act, 1948 (for short, ‘Act’) has been directed against judgment dated 17th February, 1997 passed by the District Judge-cum-ESI Court, Cuttack (for short, ‘ESI Court’) in E.S.I. Misc. Case No.10 of 1994. 2 2. The case of the claimant-dependants before the ESI Court in a nutshell is that their son Santosh Kumar Swain died on 14.10.1992 during and in course of employment. The deceased was insured by opposite party No.1- Employees’ State Insurance Corporation (for short, ESI Corporation) under the Act. Before his death, the deceased was serving as Supervisory (trainee) under opposite party no.2 from 8.6.1992 onwards, in their factory at Choudwar. On 13.10.1992, he was allotted with duties from 2.00 P.M. to 10.00 P.M. On an intimation received from the office, instead of going to the factory he went to Cuttack to purchase some urgent materials for the factory at about 4.00 P.M. While returning from Cuttack in his two wheeler at about 9.15 P.M. he met with an accident near Birupa Bridge. With the help of local people, he was taken to S.C.B. Medical College and Hospital, Cuttack immediately. On the next morning i.e. 14th October, 1992 at about 8.45 A.M. he succumbed to the injuries. The petitioners being the legal heirs and dependants of deceased Santosh Kumar Swain submitted their claim to opposite party No.1-ESI Corporation, through opposite party no.2-the employer. Since opposite party No.1 rejected their claim, they moved the District Judge-cum-ESI Court, Cuttack under Sections 46, 51- A, 75 and 77 of the Act. Before the ESI Court, opposite party no.2-employer supported the case of the petitioners. But opposite party no.1-the ESI Corporation opposed the claim on the ground that the death of the deceased was not caused on account of accident during employment. In other words, death 3 was not caused in course of duty. The claim of the claimant-dependants was also challenged on the ground of limitation. On the rival contentions, the ESI Court framed as many as six issues. 3. Before the E.S.I. Court the claimant-dependants examined four witnesses and Respondent No.1 examined one witness. Respondent No.2 has not examined any witness. Both the sides exhibited several documents in support of their respective cases. 4. Taking into consideration the oral and documentary evidence, the Tribunal came to the conclusion that the deceased died on 14.10.1992 because of injuries sustained on his vital organs and his death was during and in course of employment. The claimants are dependent beneficiaries of the insured amount of the deceased under the Act. The case of the claimant-dependants cannot be disallowed on the ground of delay in sending the report of accident by the Employer to ESI Corporation. With these findings the E.S.I. Court allowed the Misc. Case with cost against Respondent No.1 and directed Respondent No.1-ESI Corporation to compensate the petitioners as per the Act within a period of two months from the date of judgment. 5. Mr.D.P.Ray, learned counsel appearing on behalf of the appellant submitted that the learned Court below has given undue weight to the evidence adduced on behalf of respondent Nos. and 2 and lightly brushed aside the overwhelming evidence adduced on behalf of appellant. The deceased insured 4 was not sent to Cuttack on official duty and his death was not in course of employment. The learned Court below should not have believed the case of the respondent Nos.1 and 2 that the deceased was deputed to Cuttack in the afternoon of 13.10.1992 in connection with the company’s work. The learned Court below is not justified to hold that the oral evidence coupled with the presumption under Section 51-A of the Act would establish that in the afternoon the deceased left for Cuttack on company’s work in his own vehicle. The oral evidence of P.Ws. 1 and 4 are not acceptable and the person who is said to have gone to the house of the deceased to deliver Ext.8 has not been examined by the respondents. Therefore, this is a substantial question of law involved in the case. There is a delay of 12 days in sending the message by the employer to the appellant corporation regarding the accident of the deceased and therefore, the ESI Court should have held that the plea that the deceased died while he was discharging the official duty is an afterthought. This also gives rise to a substantial question of law. Acceptance of the accident report which was not sent within the time specified in the ESI (Central) Regulations gives rise to a substantial question of law. The finding of learned Court below that the Act is a welfare legislation and should have received liberal construction to promote it’s object keeping in view the directive principles of the Constitution of India and therefore, the claim of the claimants should not 5 be disallowed on the ground of limitation in the matter of sending the accident report which also gives rise to a substantial question of law. The deceased met with an ordinary road accident while going to his house and his death is not in connection with work of the employer. Non-consideration of the same, is a substantial question of law. The appointment letter vide Ext.6 has not been proved in accordance with law. P.W. 4 has stated that he cannot say who typed the said Ext.6 and on whose instruction such Ext-6 was issued. Evidence of P.W.4 shows that the deceased was sent to Cuttack in connection with the employer’s work beyond his shift hour. Non-consideration of the said evidence vitiates the impugned judgment and that is a substantial question of law involved in this appeal. P.W.4 was not the Manager of the company, who is stated to have sent the deceased to Cuttack in connection with the alleged work of the company as he has stated in the cross-examination that he cannot show any document that he himself was in service in the concern. This also gives rise to a substantial question of law. The finding of the learned court below that the deceased left for Cuttack on company’s work in his own vehicle basing on the evidence of P.W. 4-Manager of the company is not sustainable. This also gives rise to a substantial question of law. 6. Mr. H.S. Mohanty, learned counsel appearing for respondents submitted that no question of law much less substantial question of law is involved in the present appeal. Therefore, the appeal is not maintainable. 6 Moreover, learned ESI Court has passed a reasoned order allowing the case of the respondent claimants. The appellant-corporation has filed this appeal to harass the claimants who are the old parents of the deceased. 7. On the rival contentions, the following questions fall for consideration by this Court: (i) Whether any substantial question of law is involved in the present appeal within the meaning of Section 82(2) of the Act? (ii) Whether the ESI Court is justified to entertain the claim petition of the claimant-respondent despite 12 days delay in sending the accident report by the employer to the ESI Corporation? 8. To deal with the question no.(i), it is felt necessary to know what is contemplated in sub-section (1) and (2) of Section 82 of the Act. They read as under: “82. Appeal — (1) Save as expressly provided in this section, no appeal shall lie from an order of an Employees’ Insurance Court. (2) An appeal shall lie to the High Court from an order of an Employees’ Insurance Court if it involves a substantial question of law.” Sub-Section (1) of Section 82 of the Act provides that “Save as expressly provided in this section, no appeal shall lie from an order of an Employees’ Insurance Court”. Section 82(2) of the Act envisages that an 7 appeal from an order of the ESI Court shall lie to High Court if it involves a substantial question of law. Thus, no appeal shall lie from an order of an Employees’ Insurance Court except where a substantial question of law is involved. 9. At this juncture, it is felt necessary to have an idea what is a substantial question of law. Substantial question of law has not been defined in the statute. In various judicial pronouncements of the Apex Court, the text has been developed. 10. In the case of Muthu Gounder v. Ammayee Ammal, AIR 2002 SC 2481, the apex Court held as under “5. From a perusal of the above provisions, it is manifest that the High Court can entertain in a Second Appeal only if it is satisfied that the case involves a substantial question of law. An obligation is cast on the appellant to state precisely the substantial question of law involved in the case in the Memorandum of Second Appeal and if the High Court is satisfied that a substantial question of law is involved in the Second Appeal it is required to formulate that question. The appeal has to be heard on that question though the respondent is permitted to argue that no such question is involved in the case. Nonetheless, the High Court has power to hear the appeal on any other substantial question of law not formulated by it provided it is satisfied that the case involves such other substantial question and in that event it has to record reasons. This Court reiterated the requirement of S.100, CPC on a number of occasions. (See : Shankareppa M. Mutanki v. B.M. Mutanki, 2000 (9) SCC 254 and Birendra Kumar Dubey v. Girja Nandan Dubey, 2001 (6) SCC 767.” 11. The apex Court in the case of Mr. Janardhana Rao vs. Joint Commissioner of Income Tax, (2005) 273 ITR 50 (SC), held as under 8 “11. It is important to note that appeal to the High Court lies only when a substantial question of law is involved. It is essential for the High Court to first formulate question of law and thereafter proceed in the matter. Without insisting on the statement of substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Court is not empowered to generally decide the appeal under s. 260 without adhering to the procedure prescribed under s. 260A. Further, the High Court must make every effort to distinguish between a question of law and a substantial question of law. In exercise of powers under s. 260A, the findings of fact of the Tribunal cannot be disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in s.260A must be strictly fulfilled before an appeal can be maintained under s. 260A. Such appeal cannot be decided on merely equitable grounds.” 12. The apex Court in the case of Boodireaddy Chandraiah and others vs. Arigela Laxmi and another, 2008 (I) OLR (SC) -197, has held as under “12. The principles relating to Section 100 CPC, relevant for this case, may be summarised thus: (i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. 9 (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.” 13. Therefore, in view of the above, the appellant has to precisely formulate the substantial question of law to maintain the appeal under Section 82(2) of the Act. The grounds taken in the appeal memo do not give rise to any question of law much less substantial question of law. What has been stated in the grounds of appeal to be substantial question of law is nothing but analysis of evidence and ultimately disputed question of fact. To illustrate, the following paragraphs from the appeal memo are extracted below: “(v) The finding of the learned Court below that although the Ext.8 appears to be ante dated for the purpose of the case, this does not necessarily mean that the entire case of the Respondent Nos.1 and 2 that the deceased was deputed to Cuttack in the afternoon in 10 connection with the company’s work is false and the oral evidence coupled with the presumption under Section 51-A of the Act would establish that in the afternoon the deceased left for Cuttack on company’s work in his own vehicle, are not sustainable because of the reason that the presumption under Section 51-A is not available to the Respondent Nos.1 and 2 when the direction to go to Cuttack in Ext.8 has not been accepted by learned Court below in the impugned judgment and the oral evidence of the P.W.1 and 4 are not acceptable and the person who is said to have gone to the house of the deceased to deliver Ext.8 has not been examined by the Respondents. This is a substantial question of law involved in this case. (vi) P.W. 1 (father of the deceased insured person) in the paragraph-1 in the examination-in-chief has stated that some of the factory employees came to Medical where his son died and on 15th, he sent intimation to the factory about the death of his son. P.W.3 the brother of the deceased in paragraph-2 in the examination-in-chief has stated that on 14th i.e. on the date of death, he intimated over phone about the death of his brother to the factory where his brother was serving. Admittedly on 26.10.1992 the accident report of the deceased Insured person was received in the local office of the corporation. In view of the above evidence, the learned Court below should have held that the delay in sending the accident report caused 11 coloured version and after thought plea that the deceased was sent to Cuttack in official duty and died as a result of employment injury. Non-consideration of the aforesaid material evidence vitiates the impugned judgment. This is a substantial question of law involved in this appeal. (vii) The finding of the learned Court below that it may so happen that an employer having grievance against the deceased employee will deliberately choose not to send the accident report or deliberately send the same, is surmises, based on no evidence and not sustainable because of the reason that in the instant case, the employer has supported the case of the Respondent Nos.1 and 2 and has made attempts to push the liability on the corporation. This is a substantial question of law involved in this appeal. (viii) The accident report having not been submitted by the respondent No.3 within the prescribed period of limitation, the learned Court below should have held that the mandatory provisions under Regulation 68 of the E.S.I. (Central) Regulations has not been complied with causing after thought and coloured version that the death of the deceased Insured person was as a result of employment injury inasmuch as he has found out in the impugned judgment that there has been twelve days delay in sending the accident report to the local office of the corporation. 12 This is a substantial question of law involved in this appeal. (ix) The finding of the learned Court below that the Act is a Welfare Legislation and should have received a liberal construction to promote its object keeping in view the directive principles of the Constitution of India and the claim of the respondents should not be allowed on the ground of limitation, is not sustainable, because of the reason that the learned Court below has failed to consider that the benefits under the Act are to be extended in genuine cases to the deserving persons and sending the accident report within the prescribed period of limitation has been provided to prevent false, frivolous and undue claims inasmuch as delay causes after thought and coloured versions and manufacturing documents as done in the present case for undue gain. This is a substantial question of law involved in this appeal.” 14. From the above, it can be safely concluded that no substantial question of law is involved in the present appeal. 15. Much argument has been advanced in the matter of delay in sending the accident report by the employer as provided under Regulation 68 of the E.S.I. (Central) Regulations, 1950. On this aspect, learned District Judge has held as follows: “Question that arises whether on this account the petitioners will be debarred from raising their dispute 13 before this authority under Section 75 of the Act ? It may so happen an employer having grievance against a deceased employee will deliberately chose not to send any such report or deliberately send that report at a very late stage. Would it mean that the beneficiaries of the deceased insured employee cannot demand the benefits under this Act ? No authority has been cited in support of the contention because of the delay caused by the employer in complying the provisions under regulation 68, the beneficiaries would lose the benefits conferred under the Act. On the other hand, the law is well settled that the Act is a social security legislation and is required to be interpreted liberally for the benefit of the employees. It is a welfare legislation and should receive liberal construction to promote its object, keeping in view the directive principles of the Constitution of India. Section 46 of the Act provides benefits in the shape of periodicals payments to the dependents of an insured person who dies out of an employment injuries sustained as an employee under this Act and also payment to the elder surviving member of the family of the deceased insured employee or his heirs, towards the expenditure on the funeral. Hence, having regard to the beneficial object of this Act, it is not permissible to adopt a narrow interpretation which will have the effect of defeating the every object and purpose of the Act. Hence, I don’t agree with the contention of the corporation that the claim should be disallowed on the ground of limitation. The case, according to me is maintainable. The issues are answered against the opposite party No.1.” 16. Thus, the reasons given by the District Judge-cum-ESI Court to hold that for delay in sending the accident report by the employer to ESI Corporation, the claimant dependants should not suffer are just and proper and have been recorded by proper analysis of statutory provisions of Regulation 68. Hence, on this issue also, no substantial question of law arises. 14 17. In view of the above, the appeal is dismissed and the order of the ESI Court is upheld. The appellant ESI Corporation is directed to pay the amount of compensation to claimant-respondents as per the provisions of the E.S.I. Act along with interest as provided in the Statute on account of death of insured employee Santosh Kumar Swain within a period of two months, if not already paid. …………………….. B.N.Mahapatra,J. Orissa High Court, Cuttack The 6TH May, 2011/ssd/skj