: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.2457 OF 2007 FIRST APPEAL NO.2457 OF 2007 FIRST APPEAL NO.2457 OF 2007 Employees State Insurance Corporation, . Panchadeep Bhavan, . 689/90, Bebbe Wadi, Pune-411037 ...Appellant V/s. Force Motors Limited, . (Formerly known an Bajaj Tempo Ltd.), . Akurdi, Pune - 411035 ...Respondent Mr.P.M. Palshikar, Advocate, for the Appellant. Mr.Sanjay Londhe, Advocate, i/b. Mr.Sanjay Udeshi, for the Respondent. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 7TH JANUARY, 2008. DATE : 7TH JANUARY, 2008. DATE : 7TH JANUARY, 2008. JUDGMENT : JUDGMENT : JUDGMENT : 1. I have heard the submissions of the learned Counsel appearing for the parties. The challenge in this Appeal is to the Judgment and Order dated 4th October, 2006 passed by the learned Judge of the Employees’ Insurance Court. 2. The respondent filed an application under Section 75 of the Employees’ State Insurance Act, 1948 (hereinafter referred to as "the said Act of 1948") challenging an order dated 28th September, 1983 passed by the appellant in exercise of powers under Section 45-A of the said Act of 1948 by which a demand of : 2 : Rs.2,20,249.60 was made by the appellant towards the contribution. The said application under Section 75 was dismissed on 29th January, 1990. An Appeal preferred against the said order by the respondent was dismissed by this Court. The respondent therefore paid the amount of Rs.2,20,250/-. By an order dated 14th August, 2006, the appellant made a demand of Rs.5,93,427/- being the interest payable on the sum of Rs.2,20,249.60. Another application under Section 75 of the said Act of 1948 was filed by the respondent for challenging the demand made by the said order dated 14th August, 2006. The respondent made an application at Exhibit"C-2" in the main Application under Section 75 praying for stay of operation of the order dated 14th August, 2006. On the said Application, the learned Judge granted ad-interim stay. Another application was made at Exhibit "C-3" by the respondent praying for waiver of the deposit 50% of the amount as required by sub-section 2B of section 75 of the said Act of 1948. By the impugned Judgment and Order dated 4th October, 2006, the learned Trial Judge confirmed ad-interim stay granted to the operation of order dated 14th August, 2006 till the decision of the main application under Section 75 of the said Act of 1948. By the impugned order, it was held that the respondent was entitled to waiver of : 3 : deposit of 50% of the amount of demand. 3. At the time of hearing of this Appeal, an objection was raised regarding maintainability of the Appeal. The submission of the learned Counsel appearing for the appellant is that an Appeal was maintainable under Section 82 of the said Act of 1948 against every order passed by the learned Judge of the Employees’ Insurance Court. He submitted that Appeal lies to this Court against every order of the said Court if it involves a substantial question of law. He submitted that the impugned order granting waiver and granting stay to the order of demand is clearly illegal and the Appeal raises substantial question of law. 4. The learned Counsel appearing for the respondent submitted that an Appeal will lie against an order passed by the learned Judge of the Employees’ State Insurance Court provided the order was in the nature of a decree. He placed reliance on a decision of the learned Single Judge of this Court in the case of Abdul Shakur Umar Sahigara & Co. V/s. Regional Director, Employees’ State Insurance Corporation [2004 (2) Mh.L.J. 441]. He submitted that the order impugned is an interlocutory order which will operate : 4 : only till the disposal of the main application under Section 75 and therefore Appeal will not lie against the said order. 5. By way of reply, the learned Counsel appearing for the appellant placed reliance on a decision of the learned Single Judge of Allahabad High Court in the case of M/s.Modi Steels Unit-A V/s. Employees’ State Insurance Court (S.D.M.) Ghaziabad & Ors. [1985 LAB.I.C. 28]. He submitted that the view taken by the Allahabad High Court is that Section 82 does not limit the right of Appeal to the orders finally disposing of the application under Section 75. He submitted that an order granting or refusing to grant interim relief is also an appelable order under Section 82. 6. I have given careful consideration to the submissions made by the learned Counsel appearing for the parties. The only issue to be decided is whether the order impugned is an appelable order under Section 82 of the said Act of 1948 considering the nature of the order. 7. Section 82 of the said Act of 1948 reads thus:- : 5 : "82. Appeal - (1) Save an 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. (3) The period of limitation for an appeal under this section shall be sixty days. (4) The provisions of sections 5 and 12 of the Limitation Act, 1963 (36 of 1963) shall apply to appeals under this section." 8. The learned Single Judge of this Court in the case of Abdul Shakur Umar Sahigara & Co. (Supra) had an occasion to consider the scope of Appeal provided under Section 82 of the said Act of 1948. In paragraph No.23 of the said decision, the learned Single Judge has held as under:- "With the above understanding, if one examines the impugned order passed by the E.I. Court, it will be clear that the E.I. Court has merely refused to summon the witness as a Court witness. if one were to ask the question, has the said impugned order adjudicated upon or determined any of the rights and/or obligations of any of the parties to the proceedings?", the answer has to be in negative. It can hardly be said to be an order determining the rights and/or obligations of any of the rival parties. Such order, in my opinion, Such order, in my opinion, Such order, in my opinion, is not open to challenge in an appeal is not open to challenge in an appeal is not open to challenge in an appeal : 6 : filed under section 82 of the Act. filed under section 82 of the Act. filed under section 82 of the Act. The appeal, therefore, is liable to be The appeal, therefore, is liable to be The appeal, therefore, is liable to be dismissed on this short count as not dismissed on this short count as not dismissed on this short count as not maintainable since impugned order does maintainable since impugned order does maintainable since impugned order does not have a status which can be equated not have a status which can be equated not have a status which can be equated with that of a decree passed in a suit with that of a decree passed in a suit with that of a decree passed in a suit by a Civil Court nor it has a force of by a Civil Court nor it has a force of by a Civil Court nor it has a force of a decree as understood in law a decree as understood in law a decree as understood in law (see Shah Babulal Khimji vs. Jayaben D. Kania, AIR 1981 SC 1786. para 114). It has neither adjudicated any of the rights of the parties nor it is enforceable as if it is a decree passed in a suit by a Civil Court. The order in question is not a final The order in question is not a final The order in question is not a final and conclusive, in the sense that the and conclusive, in the sense that the and conclusive, in the sense that the Court can always summon any witness at Court can always summon any witness at Court can always summon any witness at any time in the interest of justice. any time in the interest of justice. any time in the interest of justice. Appeal under section 82 of the Act is Appeal under section 82 of the Act is Appeal under section 82 of the Act is thus tenable only against the order thus tenable only against the order thus tenable only against the order which has trappings or flavour of a which has trappings or flavour of a which has trappings or flavour of a decree as discussed hereinabove." decree as discussed hereinabove." decree as discussed hereinabove." (Emphasis added). 9. The view taken by the learned Single Judge is that unless the order of the Employees’ State Insurance Court determines the rights and/or obligations of any of the rival parties, the said order is not an appealable order under Section 82 of the said Act of 1948. The learned Single Judge held that an Appeal under Section 82 of the said Act is tenable only against an order which has trappings or flavour of a decree. The submission of the learned Counsel for the appellant was that the Section 82 provides for an Appeal against all the orders and the section does not provide that an interlocutory order cannot be appealed against. : 7 : 10. The Apex Court in the case of Central Bank of India Ltd. V/s. Gokal Chand [AIR 1967 SC 799] had an occasion to consider provisions of Section 38 of the Delhi Rent Control Act which provides for an Appeal from every order of the Controller. Relevant part of the decision of the Apex Court reads thus:- ""An appeal shall lie from every order of the Controller made under this act to the Rent Control Tribunal (hereinafter referred to as the Tribunal) consisting of one person only to be appointed by the Central Government by notification in the Official Gazette." (3) The object of S. 38(1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of S. In the context of S. In the context of S. 38 (1), the words "every order of the 38 (1), the words "every order of the 38 (1), the words "every order of the Controller made under this Act", Controller made under this Act", Controller made under this Act", though very wide, do not include though very wide, do not include though very wide, do not include interlocutory orders, which are merely interlocutory orders, which are merely interlocutory orders, which are merely procedural and do not affect the procedural and do not affect the procedural and do not affect the rights or liabilities of the parties. rights or liabilities of the parties. rights or liabilities of the parties. In a pending proceedings, the Controller may pass many interlocutory orders under Ss. 36 and 37, such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevancy of a question. All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the : 8 : procedure only and do not affect any right or liability of the parties. The legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders. It is open to any party to set forth the error, defect or irregularity, if any, in such an order as a ground of objection in his appeal from the final order in the main proceeding. Subject to the aforesaid limitation, an appeal lies to the Rent Control Tribunal from every order passed by the controller under the Act. Even an interlocutory order passed under S. 37(2) is an order passed under the Act and is subject to appeal under S. 38(1) provided it affects some right or liability of any party." (Emphasis supplied). 12. The Division Bench of this Court in the case of Central Bank of India V/s. Kurian Babu & Ors. [2004 (6) Bom.C.R. 597] dealt with provisions of Section 20(1) of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 which provides for an Appeal against an order made by a Tribunal constituted under the said Act. In paragraph No.8 of the said decision, the Apex Court held thus:- "8. The observations of the Supreme Court in the aforesaid judgments would equally govern the relevant words used in section 20(1) of the Act. The The The rights and liabilities of the parties rights and liabilities of the parties rights and liabilities of the parties would be normally decided by the final would be normally decided by the final would be normally decided by the final order. Very rarely the interlocutory order. Very rarely the interlocutory order. Very rarely the interlocutory order on procedural matter would order on procedural matter would order on procedural matter would affect the rights of the parties. The affect the rights of the parties. The affect the rights of the parties. The course of a litigation should normally course of a litigation should normally course of a litigation should normally : 9 : proceed unhampered. It at every stage proceed unhampered. It at every stage proceed unhampered. It at every stage the Appellate Court has to entertain the Appellate Court has to entertain the Appellate Court has to entertain an appeal there cannot be a speedy an appeal there cannot be a speedy an appeal there cannot be a speedy culmination of the litigation at all. culmination of the litigation at all. culmination of the litigation at all. it is with a view to expedite the trial and conclusion of a litigation before the original authority or Court, the Supreme Court has limited the scope of the appellate jurisdiction in the manner stated in Central Bank’s case. Therefore, we Therefore, we Therefore, we have no hesitation to hold that purely have no hesitation to hold that purely have no hesitation to hold that purely procedural orders which do not affect procedural orders which do not affect procedural orders which do not affect the substantive right of the parties the substantive right of the parties the substantive right of the parties are not appealable under section 20(1) are not appealable under section 20(1) are not appealable under section 20(1) of the Act." of the Act." of the Act." 13. There is no reason why an interpretation put by the Apex Court and Division Bench of this Court should not apply to the provision of Appeal under Section 82 of the said Act of 1948. An Appeal under Section 82 will not lie against a procedural order or an interlocutory order which does not finally decide the rights or liabilities of the parties. The view of Allahabad High Court referred to above is not correct. By the impugned Judgment and Order in the present case, there is no final adjudication on the rights and liabilities of the parties. The impugned order stays the recovery of amount only till the final disposal of the Application under Section 75 and dispenses with the requirement of deposit of 50% of the amount demanded. The order makes no adjudication as regards rights and liabilities of the parties. The order impugned does not satisfy the tests laid down by the : 10 : learned Single Judge of this Court in the case of Abdul Shakur Umar Sahigara & Co. (Supra). Therefore, an inevitable conclusion is that the present Appeal is not maintainable. It must be however clarified that I have not dealt with the merits of the impugned order and notwithstanding the dismissal of the Appeal, it will be open for the appellant to file appropriate proceedings for challenging the impugned Judgment. 14. Hence, I pass the following order:- "O R D E R" "O R D E R" "O R D E R" . The Appal is dismissed as not maintainable. However, it will be open for the appellant to adopt appropriate proceedings for challenging the impugned Judgment and Order in accordance with law. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]