The Deputy Regional Director, Sub Regional Office, Goa Employees State Insurance Corp. 46, Defence Colony, Porvorim Goa vs M/s. Atlantic Spinning and Weaving Mills Ltd., Xeldem, Post Quepem, Goa 403705.

F.M. Reis, J.—Heard Mrs. Agni, the learned Counsel appearing for the appellant and Shri M.S. Bandodkar, the learned Counsel appearing for the respondents. The above appeal challenges the judgments dated 3/09/2005 passed by the learned Employees Insurance Court at Margao in Employees Insurance Case No. 3/2002 whereby an application filed by the respondents u/s 75 and 77 of the Employees State Insurance Act, 1948 was allowed and the impugned order passed by the appellant came to be set aside.

The above appeal has been admitted by order dated 16/06/2006 on the following substantial question of law:

Whether the order of the Insurance Court is perverse inasmuch as it has ignored the documentary evidence on record, particularly Exhibit 20,50 and 51?

Mrs. Agni, the learned Counsel appearing for the appellant has at the outset taken me through the order passed by this Court dated 16/06/2006 and pointed out that this Court after hearing the parties and after minutely going through the material on record has prima facie come to the conclusion that the Insurance Court while passing the impugned order has not relied upon some documents which were material to decide the matter in controversy. The learned Counsel has further pointed out that whilst framing the substantial question of law this Court has clearly pointed out that documents at Exhibit 20,50 and 51 have not been considered whilst passing the impugned order. The learned Counsel has taken me through the document at Exhibit 20 and pointed out that this is a letter addressed by the respondents to the appellant which establishes that some overtime wages were paid to the employees which according to the appellants are part of the wages for the purpose of determining the contribution payable by the respondents. The learned Counsel has also pointed out that the documents at Exhibit 50 and 51 are also relevant for the purpose of deciding the issue in controversy. The learned Counsel has further taken me through the findings of the learned Judge whilst appreciating the evidence on record to decide issue no. 2 and pointed out that there is no discussion at all with regard to such documents nor has the learned Judge applied its mind to the first visit note pursuant to which the order came to be passed u/s 45-A of the ESI Act. The learned Counsel further pointed out that the said documents which are material for the purpose of deciding the matter in controversy were not at all taken into consideration by the learned Judge whilst passing the impugned Judgment. The learned Counsel has also taken me through the material on record and pointed out that the learned Judge has arrived at a perverse finding of fact whilst deciding issue no. 2.

On the other hand, Shri S. Bandodkar, the learned Counsel Judgment. The learned Counsel has taken me exhaustively through the correspondence which forms part of the records and pointed out that after compliance was sought by the appellant by letter dated 3/04/2000, the respondents entered into correspondence with the Director of the appellant and pointed out that the records have not been considered whilst passing such order. The learned Counsel has also taken me through the correspondence and pointed out that the Director issued directions calling upon the ESI Inspector to visit the premises of the respondents for physical verification. The learned Counsel further points out that, as such, the Inspector visited the premises of the respondents on 3/05/2000 and came to the conclusion that only a sum of Rs. 3078.49 was payable by the respondents which the respondents have duly paid. The learned Counsel further points out that thereafter the same Inspector was called upon by the Director to reverify the records which were also carried out by the Inspector subsequently. The learned Counsel, as such, submits that considering the material on record, the learned Judge was justified to come to the conclusion that the appellants were not entitled to claim the amount of contribution as claimed by them in the impugned Judgment.

I have carefully considered the rival contentions and have also gone through the impugned Judgment as well as the material placed on record. Before considering the submissions advanced by the learned Counsel it would be appropriate to record the findings of this Court whilst admitting the above appeal by order dated 16/06/2006. This Court at para 4 of the said order has stated thus:

Prima facie, it does appear that the Insurance Court has merely relied on the Inspector''s report. It appears that important documents have not been considered by the Insurance Court. At least, there is no indication from the impugned order that those documents have been considered by the Insurance Court. Hence, the second appeal is admitted. The substantial question of law involved in the second appeal is as follows:

Whether the order of the Insurance Court is perverse inasmuch as it has ignored the documentary evidence on record, particularly Exhibit 20,50 and 51?

Considering the said aspect it would be proper to ascertain as to whether the documents at Exhibit 20,50 and 51 referred to in the substantial question of law as framed by this Court have been considered by the learned Judge whilst passing the impugned Judgment. On perusal of the discussion with regard to issue no. 2 framed by the learned Judge in the impugned Judgment, I find no reference to the said documents whilst appreciating the evidence on record. In fact on perusal of Exhibit 20, I find that the respondents themselves have brought to the notice of the appellant the fact that they were paying overtime wages to their employees. Though there is dispute raised by the learned Counsel appearing for the respondents that according to the respondents said payment is also on account of some incentives paid to the officers, nevertheless, this aspect would have to be considered by the Court after hearing the parties in accordance with law. Be that as it may, considering that the said documents which are found to be material for adjudicating the matter in dispute, I find that the learned Judge has not at all appreciated the evidence on record in the proper perspective. It was incumbent upon the learned Judge to consider the said documents and ascertain as to whether the said documents would support the contentions of the rival contentions. Non-consideration of the said documents which are otherwise relevant for deciding issue no. 2 has led to perversity of the findings of the learned Judge whilst deciding issue no. 2. Without going into the merits of the rival contentions in connection with issue no. 2, I find it appropriate that the learned Judge be directed to decide issue no. 2 afresh after hearing the parties and considering the material produced by the parties which is part of the record for this limited purpose. The substantial question of law is answered accordingly.

In view of the above, the following order is passed:

ORDER

(i) The appeal is partly allowed.

(ii) The findings on issue no. 2 in the impugned judgment dated 3/9/2005 is quashed and set aside.

(iii) The learned Judge is directed to decide issue no. 2 after hearing the parties in accordance with law.

(iv) All the contentions of the parties on merits in respect of issue no. 2 are left open.

(v) The parties are directed to appear before the learned Judge on 12/06/2012 at 2.30 p.m. and abide by its further directions.

(vi) The appeal stands disposed of accordingly with no order as to costs.