Bombay High Court
Dainik Deshdoot And Ors. vs The Employees' State Insurance ... on 12 August, 1994
Equivalent citations: (1995)97BOMLR845, [1995(70)FLR863], (1995)IILLJ145BOM, 1995(1)MHLJ853
JUDGMENT Bhattacharjee, C.J.
1. This is an appeal against an order passed by the learned single Judge of this Court dismissing an appeal under Section 82 of the Employees' State Insurance Act, 1948, in limine. The order assailed is not a speaking order as the learned Judge has dismissed the appeal by a one-word order to the effect 'dismissed'.
2. In Madhya Pradesh Industries Ltd. , Subba Rao, J., in his separate but concurring judgment, while pointing out that the orders of appellate Court should contain the reasons therefor, has nevertheless relieved such Courts from making a speaking order when they dismiss an appeal or a revision in limine. It has been observed therein that in the latter cases, a non-speaking order may be justified because the appeal or revisional Court in that case must be presumed to have agreed with the reasoned judgment of the subordinate Court and to have found no legally permissible grounds to interfere therewith. These observations in Madhya Pradesh Industries Ltd. (supra) have been referred to with approval in the Five Judge Bench decision of the Supreme Court in S. N. Mukherjee, and, therefore, dismissal of an appeal or a revision in limine by a non-speaking and unreasoned order cannot be assailed on that ground alone.
3. Under Section 82(2) of the Employees' State Insurance Act, 1948 ('Act', for short) "an appeal shall lie to the High Court from an order of an Employees' Insurance Court if it involves a substantial question of law. In answer of law' was involved in the appeal before the learned single Judge, learned counsel appearing for the Appellants has not been able to formulate any question of law, far less any less substantial question of law, to be involved in the appeal. All that the learned counsel has urged is that on the evidence on record, the two concerns were not to be treated as one. But that is a matter to be decided on appreciation of evidence and other materials on record, and even if we assume arguendo that the Employees' Insurance Court was wrong in its appreciation of the evidence on record, that cannot amount to any question of law, and far less a substantial question of law, to sustain an appeal under Section 82(2) of the Act.
4. Reference in this connection may be made to unanimous Five - Judge Bench decision of the Supreme Court in Sir Chunilal V. Mehta, , where, construing the expression "substantial question of law" in Article 133 of the Constitution as it stood then, it was held as under :-
"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 or whether it directly and substantially 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 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."
These observations in Sir Chunilal v. Mehta, (supra) have again been referred to and relied on in a unanimous Three-Judge Bench decision of the Supreme Court in Mahindra and Mahindra Ltd. , where it has been observed as under :-
"What should be the test for determining whether a question of law raised in an appeal is substantial has been laid down by this Court in Sri Chunilal v. Mehta and Sons Ltd. v. The Century Spinning and Manufacturing Co. Ltd. and it has been held that the proper test would be whether the question of law is of general public importance or whether it directly or substantially 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."
We entertain no doubt that the same expression having been used in Section 82(2) of the Act, we cannot but govern ourselves by the observations quoted hereinabove.
5. The learned counsel for the appellants has, however, drawn our attention to a Two-Judge Bench decision of the Supreme Court in Jagadish Singh, where it has been observed, with reference to the jurisdiction of the High Court to re-appreciate evidence in a Second Appeal, that where the findings by the Court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings." The learned counsel has accordingly argued that since Section 100 of the Code of Civil Procedure, as amended in 1976, also provides that a Second Appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, "If the High Court is satisfied that the case involves a substantial question of law", the aforesaid decision must be treated as a clear authority for the proposition that "non-consideration of relevant evidence" or "an essentially erroneous approach to the matter" would also amount to a substantial question of law. We must, however, note, and this we say with respect, that there has been no discussion anywhere in that judgment as to the denotation, connotation or scope of the expression "substantial question of law". We have also noted the provisions of Section 103 of the Code of Civil Procedure, which provides that "in any Second Appeal, the High Court may, if the evidence on record is sufficient, determine any issue necessary for the disposal of the appeal - (a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or (b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100". The provisions of Section 103, therefore, clearly indicate that, in a given case re-appreciation or reappraisal of evidence on record is not beyond the reach of the Second Appellate Court. We are inclined to think that these provisions of Section 103 of the Code of Civil Procedure are making all the difference, notwithstanding the provision of Section 100 thereof providing that a Second Appeal would be only if the High Court is satisfied that the case involves "a substantial question law". We are afraid that we cannot press into service the provision of Section 103 of the Code as quoted above and all that we have got to see is that whether the appeal before the learned single Judge under Section 82 of the Act involved any "substantial question of law". The provisions of Section 103 of the Code of Civil Procedure, or any provisions analogous thereto, were not available to the learned single Judge while considering the appeal under Section 82(2) of the Act, which has only and very clearly provided that an appeal would lie from an order of an Employees' Insurance Court only when "it involves a substantial question of law" while Section 82(1) of the Act categorically provided that no appeal shall lie from an order of an Employees' Insurance Court "save as expressly provided in this Section". It is not, therefore, possible for us to govern ourselves by the decision in Jagdish Singh (supra) where the denotation, connotation or the scope of the expression "substantial question of law" has not been considered and the provision of Section 103 of the Code of Civil Procedure were staring at the face. That expression having been considered in appreciable details in the aforesaid decisions in Sir Chunilal v. Mehta, (supra) and in Mahindra and Mahindra, (supra) we will have to govern ourselves by the law enunciated therein. We have also taken note of the fact that while the aforesaid two decisions emanate from larger Benches, the decision in Jagdish Singh, (supra) is rendered by a smaller Bench. We are accordingly of the opinion that the learned single Judge was in no way in error in rejecting the appeal, because, even before us, no question of law, far less any substantial question of law, has shown its head.
6. The appeal is accordingly dismissed, but without any order as to costs.
7. Issuance of certified copy of this judgment is expedited.