S.S. Sandhawalia, J. - (1.) THE preliminary objection raised on behalf of the respondents on the basis of Section 82(2) of the Employees' State Insurance Act 1948 regarding the competency of this appeal must succeed. It is, therefore, unnecessary to advert to the facts in detail. It suffices to notice that the Employees' State Insurance Corporation had instituted the application for the recovery of damages from the respondent -employers arising from the death of their employee Bhartu, and had claimed Rs. 5,350/ - as the capitalised value of the periodical payments which the Corporation was liable to pay to the dependents of the deceased The respondent -employers expressly took up the position that the death of. Bhartu was not the result of their negligence and it was also pleaded that the fencing around the machinery and the shaft had been duly provided On these pleadings apart from others the material issue No. 1 was framed in the following terms: 1. Whether Bhartu deceased met with an accident due to negligence of the defendants for the reason stated in para 6 of the plaint ? The issue above -said was decided against the appellant -Corporation on the findings that the accident resulting in the death of Bhartu workman was not due to any negligence of the respondent -employers. In view of this the application was rejected and hence the present appeal by the Employees State Insurance Corporation.
(2.) MR . Sarin on behalf of the respondent forcefully contends that on the facts of the present case no substantial question of law whatsoever and in fact no question of law arises in the present appeal and the same is hence not maintainable in view of Section 82(2) of the Act. It is best to clear the factual ground on the basis of which the objection is raised. In paragraph 6 of the application filed by the appellant -Corporation in the Court below, the following was averred: Shri Bhartu met with an accident due to the negligence of the respondents having failed to provide the fencing or any sort of guard on the shaft as required under Section 21 of the Factories Act, 1948. In the written statement filed on behalf of the respondents this paragraph was expressly denied and it was pleaded that the death of the deceased was not the result of any negligence on the part of the respondent. The trial Court in a detailed and closely reasoned judgment adverted to this specific aspect of the case and found that the death of the deceased Bhartu had been occasioned when he unauthorisedly attempted to remount the belt after the same had gone off the shaft. It was held that the presence or the absence of the fencing had nothing whatsoever to do with the death of the employee and further that it was not the duty of the deceased Bhartu to remount the belt of the shaft in case it slipped off the same. Reliance was placed on the evidence of Ram Chand R.W. 2 on the point that if the belt goes off the shaft, the duty is that of the shift -in -charge to remount the same. Similarly the evidence of Ram Dhari R.W. 3 was accepted that the Shift in -charge was the competent nan to remount the belt on the shaft. It was further noticed that this operation involves some experience for the purpose and it was, therefore, that the duty of remounting the belt had been specifically assigned to the Shift -incharge. The Court below found that the deceased had no experience in remounting the belt on the shaft and he was not authorised to do so His act in attempting this was without warrant of authority and the consequent death was due to his own negligence. The operative part of the finding after an overall discussion of the evidence was in the following terms: But where a worker attempts to do a thing and handles the machinery which he is not authorised to do and sustains some injuries, he cannot contend that he has received the injuries on account of the negligence of the employer to observe the safety rules. Hence it is concluded that the accident did trot take place on account of any negligence of the respondents but on account of the deceased doing an act, for which he was not employed. Hence, issue No. l is decided against the Corporation. From the above it is manifest that the sole material issue in the case was that of the negligence or otherwise of the respondent -employer or that of the deceased employee. On the present facts this issue was one which was purely on a point of fact. The Court on an appraisal of the evidence before it, arrived at a finding of fact in this context. Once it is so, the objection of the respondents has to be sustained in view of the clear language of the statute on which reliance is placed. The relevant part of Section 82 is in the following terms: 82 (1) Save as expressly provided in this section, no appeal shall he 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. As reliance has been placed on certain authorities under the Workmen's Compensation Act. It is convenient to set down the proviso to Section 30 of the said Act, the language of which is in pari materia with Section 82 (2) of the Employees' State Insurance Act, 1948: 30 (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely: (a) * * * (b) * * * (c) * * * (d) * * * (e) * * * Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in Clause (b), unless the amount in dispute, in the appeal is not less than three hundred rupees. As to what is a substantial question of law has been authoritatively pronounced upon by their Lordships of the Supreme Court in Chunilal v. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Company Ltd. : A.I.R. 1962 S.C. 1314 in the following terms: The proper test for determining whether a question of law raised in the case is substantial would in our opinion, be whether it is of general public importance of whether it directly and sub -statically affects the rights of the parties and if so, whether it is either an open question In the sense that it is not finally settled by this court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. In the light of the above observations it appears to me that so far as the present appeal is concerned there hardly arises a question of law at all far from there being a substantial question of law, which would satisfy the test above -said laid by their Lordships. In construing Section 82(2) of the Act, a Division Bench in J.B. Mangharam & Company v. E.S.I. Corporation, : A.I.R. 1969 M.P. 110 has observed that where the question is one of fact, no appeal would lie to the High Court in view of the provisions of the statute but their Lordships proceeded to hear the appeal on merits as the true connotation of the word 'dangerous' in the statute was involved, In Janki Devi v. Joginder Singh, (1964) 66 P.L.R. 661 whilst construing the language of Section 30 of the Workmen's Compensation Act which as already noticed is in pari materia, a preliminary objection on a similar ground was upheld and the appeal as, therefore, declared to be incompetent.
(3.) IN fairness to the learned counsel for the appellant, it must be mentioned that he sought to place reliance on N.B. Mills, Indore, v. E.S.I. Corporation Indore 4 A close perusal of that judgment, however, shows that issues involved therein were the nature of the obligation imposed under Section 21 of the Factories Act and whether the particular injury suffered by the employee was an employment injury. It is thus evident that the issue arising in the present appeal concerning the factum of a substantial question of law was not even remotely adverted to in the said authority. I am hence unable to see how that decision can be of any aid to the learned counsel for the appellant.;