Gujarat High Court
Regional Director vs Narbheram Mavjibhai on 12 March, 2026
NEUTRAL CITATION
C/FA/2187/2010 JUDGMENT DATED: 12/03/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2187 of 2010
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REGIONAL DIRECTOR
Versus
NARBHERAM MAVJIBHAI
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Appearance:
MR HEMANT S SHAH(756) for the Appellant(s) No. 1
MR HITESH K PANDYA(10018) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 12/03/2026
JUDGMENT
1. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 18.12.2009 delivered by the Employees' State Insurance Court, (for short "ESI Court"), Ahmedabad in ESI Second Appeal No.21 of 2009, the Regional Director of ESI Corporation, Ahmedabad, has preferred this appeal under Section 82 of the Employees' State Insurance Act, 1948 (for short "ESI Act"), whereby the ESI Court dismissed the appeal and confirmed the order dated 23.01.2008 passed by the Medical Appeal Tribunal (for short "MAT") in Appeal (MAT) No.40 of 2007, assessing 40% hearing loss due to employment injury suffered by the employee.
2. Briefly stated, the facts of the case are that, the employee - Shri Narbheram Mavjibhai, was working in Arvind Mills Ltd. as a weaver. Since 02.12.2003, he had been suffering from hearing loss, allegedly due to an employment injury. The employee underwent treatment at ENT Page 1 of 13 Uploaded by MANOJ KUMAR(HC01092) on Fri Mar 27 2026 Downloaded on : Fri Mar 27 22:30:05 IST 2026 NEUTRAL CITATION C/FA/2187/2010 JUDGMENT DATED: 12/03/2026 undefined Department of Bapunagar General Hospital. It was claimed that the injury was employment related, and accordingly, the matter was referred to the Special Medical Board by the Department. On 06.03.2007, the Medical Board concluded that although the employee had sustained hearing loss, the same could not be attributed to noise arising during the course of employment, and therefore, assessed 0% physical disablement.
2.1 Being aggrieved, the employee preferred an appeal before the Medical Appeal Tribunal, being Appeal (MAT) No.40 of 2007, wherein the MAT, consisting of specialist Doctors, assessed 40% permanent disablement. Being further aggrieved, the ESI preferred an appeal before the learned ESI Court by way of Second Appeal No.21 of 2009 on medical grounds. By order dated 18.12.2009, the ESI Court dismissed the Second Appeal and confirmed the findings of the MAT that the employee had sustained an employment injury resulting in 40% permanent disablement due to hearing loss.
3. The present appeal was admitted by the Co- ordinate Bench and notice was issued; however, none appeared on behalf of the employee.
4. In appeal memo, the appellant raised the following questions as substantial questions of law:-
"(I) Whether the ESI Court has jurisdiction to ignore the opinion of expert body like the Special Medical Board regarding proportion of hearing disability?
(II) Whether the ESI Court has jurisdiction to reply upon the Page 2 of 13 Uploaded by MANOJ KUMAR(HC01092) on Fri Mar 27 2026 Downloaded on : Fri Mar 27 22:30:05 IST 2026 NEUTRAL CITATION C/FA/2187/2010 JUDGMENT DATED: 12/03/2026 undefined decision of incomplete Medical Appeal Tribunal the expert Doctor being absent on the date of examination of injured person and order as against decision of expert Special Medical Board?
5. In the aforesaid background, learned advocate Mr.Hemant Shah assailing the judgment and order passed by the learned ESI Court would submit that the MAT exceeded its jurisdiction in assessing 40% permanent disablement. He would further submit that the proceeding of Appeal (MAT) No.40 of 2007 indicate that Dr.Prabhakar, a specialist Doctor was absent at the time when the assessment of disablement was carried out. Despite the absence of an ENT specialist and other specialist doctors, the incomplete MAT Board proceeded to assess 40% permanent disablement. He would submit that neither Schedule-II nor Schedule-III of the ESI Act, 1948 provides any basis or evidence to support the conclusion that the employee had suffered an employment injury warranting 40% permanent disablement. According to him, such assessment is excessive, exorbitant, and legally unsustainable. Therefore, the ESI Court ought to have scrutinized this aspect and held that the proceedings before the MAT were bad in law due to insufficiency and procedural irregularity. However, the learned ESI Court took a different view and thereby committed a serious error. On these grounds, Mr. Shah, learned advocate, urged that the present appeal be allowed as it involves substantial questions of law.
6. Upon scrutinizing the findings of the ESI Court, it appears that despite the Medical Board recording findings that the employee suffered from a significant perforation and discharge from the ear during clinical examination, it did not Page 3 of 13 Uploaded by MANOJ KUMAR(HC01092) on Fri Mar 27 2026 Downloaded on : Fri Mar 27 22:30:05 IST 2026 NEUTRAL CITATION C/FA/2187/2010 JUDGMENT DATED: 12/03/2026 undefined attribute the same to noise occurring during the course of employment. It is an admitted position that the employee was working with Arvind Mills in the weaving department, which is a high-noise environment, and that he was undergoing treatment at Bapunagar Government Hospital. Despite these facts, the Medical Board assessed 0% physical disablement.
7. At the first instance, even without referring to other factual aspects, it appears that the Medical Board acted conservatively. It is also on record that the ESI itself referred the employee to the Medical Board after submission of Form BIR-2. This itself is sufficient to presume that, even as per the ESI's own assessment, the employee was suffering from an employment injury.
8. As observed hereinabove, despite service of notice, none appeared on behalf of the respondent-employee. Since the present appeal is filed under Section 82 of the ESI Act, at the out set, I refer to Section 82(2) of the ESI Act, which is re- produced as under:-
82(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."
9. In view of Section 82(2) of the ESI Act, an Appeal before the High Court from an order of ESI Court is maintainable only if it involves a substantial question of law. The expression "substantial question of law" appearing in Section 82(2) of the ESI Act is akin to that used in Section 100 of the Civil Procedure Code, which governs Second Appeal. However, there is a subtle distinction, under Section 100 of Page 4 of 13 Uploaded by MANOJ KUMAR(HC01092) on Fri Mar 27 2026 Downloaded on : Fri Mar 27 22:30:05 IST 2026 NEUTRAL CITATION C/FA/2187/2010 JUDGMENT DATED: 12/03/2026 undefined the Code of Civil Procedure, at the time of admission of Second Appeal, the Court is required to formulate the substantial question of law as a precondition for its admission. On the contrary, under Section 82(2) of the ESI Act, the Court may admit the appeal; however, it cannot decide the same on merits or on questions of fact determined by the learned Trial Court unless it is established that the appeal involves a substantial question of law. The interpretation of the expression "substantial question of law" as defined under Section 100 of the CPC pari pasu applies to said expression existing in Section 82(2) of the ESI Act. Thus, a substantial question of law would arise where the judgment under challenge is shown to be contrary to settled legal principles, or where an arguable or debatable point of law arises which has not been previously decided.
10. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law 'involving the case', there must first be a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by Court of facts, and it must be necessary to decide that question of law for a just and proper decision of the case. Therefore, it will depend on facts and circumstances of each case whether a question of law is a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a Page 5 of 13 Uploaded by MANOJ KUMAR(HC01092) on Fri Mar 27 2026 Downloaded on : Fri Mar 27 22:30:05 IST 2026 NEUTRAL CITATION C/FA/2187/2010 JUDGMENT DATED: 12/03/2026 undefined judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.
11. The Bombay High Court at Goa, in the case of Regional Director, Employees State Insurance Corporation Vs. The Mormugao Handling Agents Association reported in 2009 Supreme(Bom)1353, in paragraphs 31 and 32, has discussed the scope and ambit of a substantial question of law as implied in Section 82(2) of the ESI Act, as under:-
"31.So long it is not shown that the findings under challenge in present appeal under Section 82 of ESI Act, are contrary to law or facts on record or otherwise perverse, any interference is simply impermissible.
32. When in any law where an appeal on facts alone is available, interference even in such an appeal would not be permissible unless findings are shown to be erroneous due to any illegality. Just because another opinion on facts is possible, interference shall not be permissible."
12. Thus, the appellant challenged the judgment passed by the ESI Court, contending that interference is required on the ground that a substantial question of law is involved in the matter. However, in absence of such question, the order cannot be interfered with merely because it is alleged to be perverse on factual aspect.
13. The High Court of Delhi in the case of Motor & General Finance Limited Vs. Director General & Anr. reported in 2025 Supreme Court (Online)(Del) 9485 reiterated the scope of appeal under Section 82(2) of the Act, observing that it is confined to substantial question of law. In para 11, it is Page 6 of 13 Uploaded by MANOJ KUMAR(HC01092) on Fri Mar 27 2026 Downloaded on : Fri Mar 27 22:30:05 IST 2026 NEUTRAL CITATION C/FA/2187/2010 JUDGMENT DATED: 12/03/2026 undefined held as under:-
"11.The scope of an appeal under Section 82(2) is confined to substantial questions of law. The findings recorded by the EIC regarding the nature of the establishment, wage records, admissibility of documents, and credibility of witnesses are pure findings of fact. The petitioner has failed to point out any perversity or misapplication of legal principles warranting interference under this limited appellate jurisdiction."
14. Section 2(8) of the ESI Act, defines "employment injury," which is reproduced as under:
(8)"employment injury" means a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India."
15. Thus, if an accident or an occupational disease arises out of and in the course of employment, it constitutes an employment injury. Prima facie, a presumption operates in favour of the employee that the hearing loss was sustained arising out of and during the course of employment. The ESI was conscious of these aspects and therefore, after assessing partial disablement by filling in BIR Form-II, the employee was referred to the Medical Board.
16. The main plank of the argument is that the MAT, without sufficient cause, assessed the disability at 40%. On internal page 5 of the impugned judgment, the learned ESI Court recorded that Dr.M.M.Prabhakar was absent at the time of examination by the MAT. However, Dr.G.D.Kharadra, Mr.C.M.Shukla and Mr.A.U.Khandaria, were present. The ESI Inspector was also present and did not raise any objection that the coram was incomplete and the disability should not Page 7 of 13 Uploaded by MANOJ KUMAR(HC01092) on Fri Mar 27 2026 Downloaded on : Fri Mar 27 22:30:05 IST 2026 NEUTRAL CITATION C/FA/2187/2010 JUDGMENT DATED: 12/03/2026 undefined be assessed. The ESI Inspector, in fact, consented to the assessment of disablement. In the aforesaid circumstances, the argument advanced by the learned advocate Mr.Shah that the permanent disablement was assessed by an incomplete coram is contrary to the principle of estoppel and cannot be countenanced.
17. The learned ESI Court further recorded that if the hearing loss is not an employment injury or an occupational disease, the ESI Corporation would not have file the BIR Form or referred the employee to the Medical Board. It has also been recorded that, under Section 75 of the ESI Act, the employee has the liberty to prefer an application before the Special Medical Board for assessment of employment injury. In the present case, the ESI Corporation filed BIR Form and referred the employee to the Medical Board. This procedure undertaken by the ESI Corporation is sufficient to establish that employee sustained an employment injury. Learned advocate Mr.Shah was strenuously argued against the judgment of the MAT and ESI Court but could not explain why the ESI Corporation has filed BIR Form, if the injury sustained by the employee is not an employment injury. It is further evident from the reasoning recorded by the learned Trial Court that, while assessing 0% physical disablement, the Medical Board did not consider the employment conditions, such as the noise levels (in decibels) prevailing in the weaving factory. Therefore, the conclusion that the hearing loss was not an employment injury appears to be ex facie unsustainable in law.
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18. According to this Court, learned ESI Court has passed a well-reasoned order. The multiple arguments raised by learned advocate Mr.Shah, are confined the questions of fact and do not give rise to any substantial question of law as required under the settled legal principles.
19. In view of the above, this Court is of the opinion that no question arises which requires further consideration as an arguable point or that has not been previously decided. Thus, in the absence of any "substantial question of law", the present First Appeal filed under Section 82 is not maintainable. Before parting with the order, this Court finds it appropriate to refer to the judgment of the Hon'ble Supreme Court in the case of ESI Corporation Vs. M/s Radhika Theatre, reported in (2023)1SCR 1045 wherein the object and purpose of the ESI Act have been considered. In Para 6 and 6.1 read as under:
"6.While answering the aforesaid issues/questions the object, purpose and preamble of the ESI Act is required to be referred to and considered. The Preamble of the ESI Act is as under: -
"An Act to provide for certain benefits to employees in case of sickness, maternity and employment injury and to make provisions for certain other matters in relation thereto."
6.1 Thus, the ESI Act being a social welfare legislation, any interpretation which would lean in favour of the beneficiary should be given. The object and purpose of the ESI Act has been elaborately considered by this Court in the case of Bangalore Turf Club Limited (supra). After considering catena of earlier decisions under the ESI Act, it is observed and held that ESI Act should be given liberal interpretation and should be interpreted in such a manner so that social security can be given to the employees. In paragraph 16 to 21, it is observed and held as under: -
"16. The primary rule of interpretation of statutes may be the literal rule, however, in the case of beneficial legislations and legislations enacted for the welfare of Page 9 of 13 Uploaded by MANOJ KUMAR(HC01092) on Fri Mar 27 2026 Downloaded on : Fri Mar 27 22:30:05 IST 2026 NEUTRAL CITATION C/FA/2187/2010 JUDGMENT DATED: 12/03/2026 undefined employees, workmen, this Court has on numerous occasions adopted the liberal rule of interpretation to ensure that the benefits extend to those workers who need to be covered based on the intention of the legislature.
17. The ESI Act is a welfare legislation enacted by the Central Government as a consequence of the urgent need for a scheme of health insurance for workers. It would be beneficial to reproduce the Preamble of the ESI Act in this context. It is as under:
"An Act to provide for certain benefits to employees in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto"
18. In ESI Corpn. v. Francis De Costa [1993 Supp (4) SCC 100 : 1994 SCC (L&S) 195] , this Court held that : (SCC pp. 105-06, paras 5-6) "5. The Act seeks to cover sickness, maternity, employment injury, occupational disease, etc. The Act is a social security legislation. It is settled law that to prevent injustice or to promote justice and to effectuate the object and purpose of the welfare legislation, broad interpretation should be given, even if it requires a departure from literal construction. The court must seek light from loadstar Articles 38 and 39 and the economic and social justice envisaged in the Preamble of the Constitution which would enliven meaningful right to life of the worker under Article
21. The State is enjoined under Article 39(e) to protect the health of the workers, under Article 41 to secure sickness and disablement benefits and Article 43 accords decent standard of life. Right to medical and disability benefits are fundamental human rights under Article 25(2) of the Universal Declaration of Human Rights and Article 7(b) of the International Convention on Economic, Social and Cultural Rights. Right to health, a fundamental human right stands enshrined in socio-economic justice of our Constitution and the Universal Declaration of Human Rights. Concomitantly right to medical benefit to a workman is his/her fundamental right. The Act seeks to succour the maintenance of health of an insured workman. The interpretative endeavour should be to effectuate the above. Right to medical benefit is, thus, a fundamental right to the workman.
6. Moreover, even in the realm of interpretation of statutes, rule of law is a dynamic concept of expansion and fulfilment for which the interpretation would be so given as to subserve the social and economic justice envisioned in the Constitution. Legislation is a conscious attempt, as a social direction, in the process of change. The fusion between the law and social change would be effected only when law is introspected in the context of ordinary social life. Life of the law has not been logic but has been experience. It is a Page 10 of 13 Uploaded by MANOJ KUMAR(HC01092) on Fri Mar 27 2026 Downloaded on : Fri Mar 27 22:30:05 IST 2026 NEUTRAL CITATION C/FA/2187/2010 JUDGMENT DATED: 12/03/2026 undefined means to serve social purpose and felt necessities of the people. In times of stress, disability, injury, etc. the workman needs statutory protection and assistance. The Act fastens in an insured employment, statutory obligation on the employer and the employee to contribute in the prescribed proportion and manner towards the welfare fund constituted under the Act (Sections 38 to 51 of the Act) to provide sustenance to the workmen in their hours of need, particularly when they become economically inactive because of a cause attributable to their employment or disability or death occurred while in employment. The fact that the employee contributed to the fund out of his/her hard-earned wages cannot but have a vital bearing in adjudicating whether the injury or occupational disease suffered/contracted by an employee is an employment injury. The liability is based neither on any contract nor upon any act or omission by the employer but upon the existence of the relationship which employer bears to the employment during the course of which the employee had been injured. The Act supplants the action at law, based not upon the fault but as an aspect of social welfare, to rehabilitate a physically and economically handicapped workman who is adversely affected by sickness, injury or livelihood of dependents by death of a workman."
19. A three-Judge Bench of this Court, in reference to the ESI Act, in Transport Corpn. of India v. ESI Corpn. [(2000) 1 SCC 332 : 2000 SCC (L&S) 121] , held that : (SCC pp. 357- 58, paras 27-28) "27. Before parting with the discussion on this point, it is necessary to keep in view the salient fact that the Act is a beneficial piece of legislation intended to provide benefits to employees in case of sickness, maternity, employment injury and for certain other matters in relation thereto. It is enacted with a view to ensuring social welfare and for providing safe insurance cover to employees who were likely to suffer from various physical illnesses during the course of their employment. Such a beneficial piece of legislation has to be construed in its correct perspective so as to fructify the legislative intention underlying its enactment. When two views are possible on its applicability to a given set of employees, that view which furthers the legislative intention should be preferred to the one which would frustrate it. ...
28. Dealing with this very Act, a three-Judge Bench of this Court in Buckingham and Carnatic Co. Ltd. v. Venkatiah [AIR 1964 SC 1272] speaking through Gajendragadkar, J., (as he then was) held, accepting the contention of the learned counsel, Mr Dolia that : (AIR p. 1277, para 10) '10. ... It is a piece of social legislation intended to confer specified benefits on workmen to whom it applies, and so, it Page 11 of 13 Uploaded by MANOJ KUMAR(HC01092) on Fri Mar 27 2026 Downloaded on : Fri Mar 27 22:30:05 IST 2026 NEUTRAL CITATION C/FA/2187/2010 JUDGMENT DATED: 12/03/2026 undefined would be inappropriate to attempt to construe the relevant provisions in a technical or a narrow sense. This position cannot be disputed. But in dealing with the plea raised by Mr Dolia that the section should be liberally construed, we cannot overlook the fact that the liberal construction must ultimately flow from the words used in the section. If the words used in the section are capable of two constructions one of which is shown patently to assist the achievement of the object of the Act, courts would be justified in preferring that construction to the other which may not be able to further the object of the Act.'"
20. In Bombay Anand Bhavan Restaurant v. ESI Corpn. [Bombay Anand Bhavan Restaurant v. ESI Corpn., (2009) 9 SCC 61 : (2009) 2 SCC (L&S) 573] , it was observed that :
(SCC p. 66, para 20) "20. The Employees' State Insurance Act is a beneficial legislation. The main purpose of the enactment as the Preamble suggests, is to provide for certain benefits to employees of a factory in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. The Employees' State Insurance Act is a social security legislation and the canons of interpreting a social legislation are different from the canons of interpretation of taxation law. The courts must not countenance any subterfuge which would defeat the provisions of social legislation and the courts must even, if necessary, strain the language of the Act in order to achieve the purpose which the legislature had in placing this legislation on the statute book. The Act, therefore, must receive a liberal construction so as to promote its objects."
21. The legislature enacted the ESI Act to provide certain benefits to employees in case of sickness, maternity in case of female employees, employment injury and to make provision in certain other matters in relation thereto. The provisions of the ESI Act apply to all the factories other than seasonal factories. The State Government with the approval of the Central Government is authorised to make the provisions of the ESI Act applicable to any other establishment or establishments. The provisions of the ESI Act provide that all employees in factories or establishments to which the ESI Act applies shall be insured in the manner provided under the ESI Act. Since the ESI Act is passed for conferring certain benefits to employees in case of sickness, maternity and employment injury, it is necessary that the ESI Act should receive a liberal and beneficial construction so as to achieve legislative purpose without doing violence to the language of the enactment."
20. Applying the law laid down by the Hon'ble Supreme Court regarding the interpretation of the object and Page 12 of 13 Uploaded by MANOJ KUMAR(HC01092) on Fri Mar 27 2026 Downloaded on : Fri Mar 27 22:30:05 IST 2026 NEUTRAL CITATION C/FA/2187/2010 JUDGMENT DATED: 12/03/2026 undefined purpose of ESI Act, this Court does not find the present First Appeal to be anything more than an attempt on the part of the ESI Corporation to avoid its liability.
21. In the premises of the aforesaid reasons, the present First Appeal stands dismissed. Interim relief, if any, stands vacated. Record and proceedings, if any, be sent back to the concerned Court.
22. Civil Application, if any, does not survive and stands disposed of accordingly.
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