IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1044 OF 2002 Sushila H. Gala.... ..... ..... .... Appellant V/s The State of Maharashtra ..... ..... .... Respondent. Ms.Mamta Sadha i/by M/s.H.V.Galal & Co., Adv. For the appellant. Mr.H.V.Mehta, AGP for the State. CORAM: A.P.DESHPANDE, J. 10th FEBRUARY, 2009. PC: By consent of parties appeal heard finally. The present appellant questioned the legality and validity of an order passed under section 45A of the Employees' State Insurance Act by filing an application before the Employees Insurance Court. On rejection of the said application this appeal has been filed under section 82 of the Act. According to the appellant he was carrying on business in the name of Trufit Tailors. The said firm was partnership firm. The Inspector of the Corporation visited the premises on 4.10.85 and found that more than 10 persons were working at the establishment. According to the respondent the appellant-company did not produce the relevant record and register for inspection and hence by issuance of show cause notice appellant was called upon to explain as to why contribution under section 45A of the Act should not be determined against the appellant and the consequential 1 liability. Parties led evidence before the Employees Insurance Court and I am taken through the evidence on record and it is then contended that the impugned order passed by the Employees' Insurance Court is wholly perverse in as much as the same is not in conformity with the evidence of the respondent itself. The appeal under section 82 is only maintainable in case a substantial question of law emerges for consideration. Following question arises for consideration: “As to whether the impugned order passed by the Employees' State Insurance Court is perverse in as much as the same does not consider the material evidence on record which nullifies the case of the respondent.” The evidence of the witness for the respondent-Employees' State Insurance Corporation by name Chandra Singh is very crucial and material which reads thus: “I am shown inquiry report dated 14.1.88 filed by the Corporation at Sr.No.13 of our list Ex.U-9. The said report is filed by our Inspector Shri L.B.Yadav. I identify his signature it is marked as R-3. It is true that according to Shri L.B.Yadav, the firm Trufit Tailors was closed two years prior to 14.1.88. It is also true that Mr.L.B.Yadav has further reported that another firm named Spectrum is functioning in the premises. The impugned order u/s.45A appears to have been signed by D.Giri, our Assistant Regional Director. It is true to say that according 2 to Shri D.Giri one Trufit Tailors was closed w.e.f. 27.10.85.” The record further reveals that the appellant was directed to produce electric bills in the name of True fit Tailors and the same were produced before the respondent with a view to point out that the establishment has been closed down. The intimation of cancellation of licence was also submitted to the respondent. The evidence of the respondent itself if perused, same reveals that the establishment in question was closed down with effect from 27.10.85 and thus there was no occasion for the respondent to pass an order under section 45A. Perusal of the impugned order reveals that the material evidence on record led by the witness for the respondent has not been considered rendering the impugned order wholly unsustainable in law. The impugned order is perverse as it does not consider the evidence on record which categorically nullifies the case of the respondent. In the result the appeal deserves to be allowed and I proceed to allow the same. The impugned order passed by the Employees' State Insurance Court dated 22.2.2001 in Application (ESI) No.11/1989 is quashed and set aside. Amount, if any, deposited in compliance with the impugned order which is set aside by this judgment, be returned to the appellant. 10.2.2009. 3