- (1.) THIS appeal is under Section 82 (2) of employees State Insurance Act, 1948 against the order dated October 30,1981 passed by the judge, Employees Insurance Court, Bijnore in case No. 61 of 1981. The appellant is indisputably covered by the provisions of Employees State Insurance act, 1948. Under the aforesaid Act, the appellant is required to deposit monthly contribution with the State Insurance department. It is also not in dispute that the appellant committed default in making the contribution for the period July, 1978 to March, 1979. The contribution was made with delay. Proceedings were initiated under Section 85-B by the Regional Director for recovery of "damages". The Regional Director after considering the reply of the appellant held that the appellant is liable to pay damages totalling rs. 9,2551- for the delayed payment of amount of contribution (both employers and employee)for the aforesaid period i. e. July, 1978to March, 1979, by the order dated October 7, 1980. The said order was challenged before the Judge, employees Insurance Court unsuccessfully. Hence the present appeal.
(2.) HEARD the counsel for the parties and perused the record. Shri Neeraj Agrawal, learned counsel for the appellant submits that the Court below committed illegality in confirming the damages levied by the Regional Director. The Regional director has levied the maximum damages permissible under the aforesaid Section. The contention is that neither Regional Director nor the Judge, E. I. Court considered the mitigating circumstances before imposing the damages. Shri P. K. Asthana, advocate, on the other hand, submits that the appeal under Section 82 (2) oi the Act lies only on substantial question of law involved in the appeal. He submits that on the facts of the present case no substantial question of law is involved therefore the appeal should not be entertained. He also submits that two authorities below considered and rejected the explanation for delayed contribution and therefore the findings recorded by the Court below are basically findings of fact and cannot be interfered with in appeal filed under Section 82 (2) of the Act. Also reliance has been placed by him on Hind Art Press v. Employees State insurance Corporation 1990-II-LLJ-195 (Kant) and Employees State Insurance corporation v. Dhanda Engineers Pvt. Ltd. 1981 (48) FLR 282, on the merits of the case.
(3.) CONSIDERED the respective submissions of the learned counsel for the parties. The following substantial questions of law though not framed initially at the time of admission of appeal but presently involved on which the learned counsel for the parties advanced their argument are: (1) "whether on the facts and circumstances of the case can it be said that in the present appeal which is under Section 82 of employees State Insurance Act a substantial question of law is involved?" (2) "whether E. I. Judge as well as the regional Director rightly applied Section 85-B of the Act and were justified in levying the maximum damages permissible under law on the appellant for the delayed contribution under section 85-B of Employees State Insurance act?" The phrase "involves substantial question of law' also finds place in Section 100 (4) of c. P. C. wherein it has been provided that the appeal shall be heard and decided on a substantial question of law involved in the case. With reference to Section 100 C. P. C, the Apex court in Hero Vinoth v. Sheshammal, AIR 2006 sc 2234: (2006) 5 SCC 545 : (2006) 3 MLJ121 has held that misconstruction of document or wrong application of principle of law while interpreting document which materially affects the decision in a case gives rise to substantial question of law. The principle relating to section 100 C. P. C. (which corresponds to section 82 (2) of Employees State Insurance act) so far as it relates to interpretation of phrase "it involves substantial question of law" summarised therein which reads as follows: "the principles relating to Section 100 summarised as follows: (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 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. (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 converted 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. (iii) The general rule is that High Court will not interfere with concurrent findings of the Courts below. But, it is not an absolute rule. Some of the well recognized are where (a) the Courts below have ignored material evidence or acted on no evidence; (b) the Courts have drawn wrong inferences from proved facts by, applying the law erroneously; or (c) the courts have wrongly cast the burden of proof. When refer to decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also, refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding. ";