JUDGMENT Chavan R.C., J.
1. This is an appeal by employer challenging partial rejection by the Industrial Court at Akola of his application objecting to recovery of dues sought by Employees State Insurance Corporation (ESIC). According to the employer the appeal involves substantial question of failure of the Industrial Court to consider important evidence which has a direct bearing on the disputed issues resulting in a magnirudenal error.
2. The facts in the context of which this appeal has arisen could be recounted as under:
The appellant runs a canteen at the State Transport Bus Stand at Akola and has two licences of running a canteen as well as hawking his wares at the S.T. Stand. The Employees State Insurance Corporation informed the appellant that his establishment was covered by the provisions of Employees State Insurance Act from May, 1986, to October, 1989 also and demanded recovery of contribution with interest and damages. The employer, therefore, applied to the Industrial Court seeking an injunction to restrain this recovery sought to be effected by the Recovery Officer and Tahsildar. The learned member of the Industrial Court held that since the employer was informed of his liability on 28th October, 1989 the employer has been paying the contributions diligently. Therefore, while the learned Member allowed the employer's appeal challenging recovery of interest and damages, the learned Member rejected the challenge to recovery of arrears of contribution from May, 1986 to October, 1989. Aggrieved thereby the employer has appealed.
3. The appellant/ employer contends that the Industrial Court was not justified in concluding that there were 25 employees with the appellant during the relevant period, ignoring the admissions given by the Insurance Inspector Shri Pande on whose report the recovery had been ordered by the Corporation. This failure on the part of the learned Member of the Industrial Court to consider admissions of the Insurance Inspector Shri Pande gave rise to a substantial question of law warranting admission of the appeal under Section 82 of the Employees State Insurance Act.
4. I have heard Shri Anil Mardikar, learned Counsel for the appellant and smt. B.P. Maldhure, learned Counsel for the respondent No. 1/E.S.L.C.
5. The learned Counsel for the appellant drew my attention to number of decisions to support his contention that improper appreciation of evidence by the Court below would also give rise to a substantial question of law. The judgment which would come closest to the proposition advanced by the learned Counsel is one rendered by the Supreme Court in Dilbagrai Punjabi v. Sharad Chandra reported at 1988(Supp) S.C.C. 710, based on Section 100 of the Code of Civil Procedure, which prescribes similar requirement of involvement of substantial question of law for entertaining second appeal by the High Court. I have carefully considered the arguments advanced by the learned Counsel on the basis of this judgment have gone through the facts in the context of which the relevant observations relied on by the learned Counsel came to be made by the Supreme Court.
6. Appellant Dilbagrai before the Supreme Court was tenant of a shop covered by the Rent Control Act. Both the courts below had rendered concurrent finding of facts and dismissed the suit of the landlord for appellant's ejectment. The High Court entertained the second appeal, reversed those findings and decreed the suit. The High Court found that the first Appellate Court had erroneously assumed that the plaintiff had failed to assert his ownership when the plea was very much taken by the plaintiff in para No. 1 of the plaint. The High Court also found that the courts below had given importance to non production of a partition deed which formed foundation of the plaintiffs title, ignoring other relevant evidence like a reply sent by the appellant; to the landlord's notice admitting plaintiffs ownership, and also a number of rent receipts issued by the plaintiff as owner and duly signed by the appellant/defendant. In the context of this evidence the High Court had entertained the second appeal and reversed the findings of the courts below. The challenge in the Supreme Court centered round the tenability of Second Appeal
7. In this context the Supreme Court observed, in the last paragraph, as under:
It is true that the High Court while hearing the appeal under Section 100 of the Code of Civil Procedure has no jurisdiction to reappraise the evidence and reverse the conclusion reached by the first Appellate Court, but at the same time its power to interfere with the finding cannot be denied if when the lower Appellate Court decides an issue of fact a substantial question of law arises. The Court is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it saves birth to a substantial question of law; the High Court is fully authorised to set aside the finding. This is the situation in the present case. We, wherefore, do not discover any defect in the judgment of the High Court and the appeal is accordingly dismissed with costs.
(emphasis supplied)
8. The learned Counsel for the appellant therefore, submitted that the learned Member of the Industrial Court ignored the admission of Insurance Inspector Shri Pande that the Inspector had not checked the muster roll and not recorded statements of employees. Therefore, according to the learned Counsel, these admissions would show that the conclusions drawn by the inspector that there were 25 employees on the appellant's establishment, based merely on the list signed by one Dinesh Rao, was erroneous and the learned Member should have so held. The learned Counsel further stated that the learned Member of the Industrial Court had also failed to consider the effect of appellant employer having two licences of running a canteen and hawking wares issued by the State Transport. Therefore, according to the learned Counsel this refusal of the learned Member to consider aforementioned evidence gave rise to an error which is of such a magnitude that it leads to a substantial question of law.
9. It must be remembered while eliciting from judgments of superior courts a general principle of law applicable universally, that observations in every judgment come in the context of particular facts, unlike clauses of statute which are potentially open to exercise of logical extensions, but which too cannot be read shorn of the context. Therefore, it is imperative that the observations in the judgments must be read in their context and a general rule of universal application should not be deduced from isolated sentences therein, like one harped upon by the learned Counsel for the appellant. It may be seen that in the case before the Apex Court, the High Court had intervened because courts below had made observation which was contrary to the record. When there was a specific plea about title the courts had gone on to observe that no such plea was raised. When there was an ample acknowledgement of ownership of landlord in tenant's reply to the notice and tenant's signatures on the rent receipts, the courts had harped upon non-production of the partition deed to non-suit the plaintiff. It may thus, be seen that dereliction of duties by courts below was so grave as to amount to a dishonest and distorted projection of facts to suit a desired result. It is in this context that the Apex Court observed that the error which arises should of such a magnitude that it gives rise to a substantial question of law. It is not that the Apex Court has, by the observations in the judgment, routinely permitted a re-appreciation of evidence at the drop of the hat or on mere allegation that the judgment overlooked a sentence here or a line therefrom the evidence tendered before the Court. With this prelude I would proceed to examine the admissions of Insurance Inspector Shri Pande which have been allegedly been overlooked by the learned member of the Industrial Court.
10. The record and proceedings was called for the purpose of verifying the admission given by Shri Pande in his deposition. The admission which forms bedrock of appellant's case is following sentences in the deposition of Shri Pande "I have not checked muster register of the employees employed by the applicant when I was inspector, I have not recorded statements of the employees." These sentences are first, not an admission of the appellant's case that he did not employ 25 persons at the relevant time. It is only a statement that Shri Pande had not seen the muster and had not recorded the statements of the employees Shri Pande had stated in his examination-in-chief itself that he had demanded registration certificate of the establishment, muster of the employees, wage register, books of accounts etc. but only registration certificate was produced and the remaining documents were not produced. If the employer had failed to produce muster how can Pande's statement that he had not seen muster help the employer ?
11. Whether Pande felt it necessary to record statements of employees or whether he was satisfied with the material which he had gathered to conclude that there were 25 employees working at the relevant time is one of satisfaction of Shri Pande. Shri Pande had stated that one Dinesh Rao who was present at the time of inspection had furnished a list of 25 employees duly signed by him. The employer had admitted in his deposition that Shri Dinesh Rao was his relation, though he denied that Shri Dinesh Rao was working as incharge of the canteen. Now, if an employer or proprietor keeps a relation present at the establishment it would be normally presumed that he is a responsible person. It would for the employer to show that such relation had made an incorrect or false statement to the inspector, either on account of lack of knowledge, or because of some malice. Since this Dinesh Rao was not examined by the employer and there is no explanation in respect of the list received by Shri Pande and since Shri Pande had a list of 25 employees, duly signed by employer's relation, incharge of the canteen on spot if he did not feel it necessary to record statement of employees there would be nothing wrong.
12. Thus, it is not that the learned member of the Industrial Court has refused to look into the evidence which was tendered. On the other hand, the reasons given by the learned Judge would show that the conclusions are based on the testimony of Shri Pande. If the learned Judge chose to believe Shri Pande it is purely a question of appreciation of evidence. Since the learned Judge was only considering the trustworthiness of Shri Pande on the basis of what he stated in examination-in-chief and cross-examination, such conclusions do not bear any comparison with the facts unfolded in Dilbagrai v. Sharad Chandra (supra) which the Supreme Court was considering.
13. As regards two licences received by the employer from the State Transport Corporation, suffice it to observe that two licences do not result in splitting up of the appellant's establishment in two parts. One establishment may have ten licences to undertake ten types of businesses, should every such activity require a separate licence. It does not follow that the establishment are ten. Therefore, if the employer was indulging in hawking as well as running a canteen since the licences are not shown to have been taken for different establishments but may be only for different activities it would not entitle the employer to show that the list of the persons employed can be split to evade applicability of Employees' State Insurance Act. This plea itself indicates that the total number of employees at the relevant time was enough to attract the provisions of the Act and so the employer wanted to rely on two licences to split the number and bring it below the prescribed minimum.
14. Consequently, I do not find any error in the judgment of the learned Member of the Industrial Court, muchless perversity or any substantial question of law to warrant entertaining this appeal.
The appeal is therefore, dismissed with costs.