Gujarat High Court
Regional Director vs Rameshbhai Goverdhan Mecwan on 17 November, 2021
Bench: A.G.Uraizee
C/FA/949/2016 ORDER DATED: 17/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 949 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2016
In
R/FIRST APPEAL NO. 949 of 2016
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REGIONAL DIRECTOR & 1 other(s)
Versus
RAMESHBHAI GOVERDHAN MECWAN
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Appearance:
MR SACHIN D VASAVADA(3342) for the Appellant(s) No. 1,2
MR AS ASTHAVADI(3698) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE
Date : 17/11/2021
ORAL ORDER
1. Admit. Ms. A.S. Asthavadi, learned advocate waives
service of notice of admission on behalf of the respondent.
With the concurrence of learned advocates for the parties
the appeal is taken up for final disposal.
2. The present appeal under Section 82 of the
Employees State Insurance Act, 1948 ('ESI Act' for short)
is preferred by the appellant to assail the judgment and
order dated 28.08.2015 passed by ESI Court in ESI Second
Appeal No.2/2012 whereunder the ESI Court has assessed
disability suffered by the respondent at 20% by setting
aside the order dated 5.5.2012 passed by Medical
Appellate Tribunal, Vadodara in Appeal No.12/2012
whereunder the Tribunal has assessed the disability at
14%.
3. I have heard Mr. Sachin D. Vasavada, learned
advocate for the appellant and Ms. A.S. Asthavadi, learned
advocate for the respondent.
C/FA/949/2016 ORDER DATED: 17/11/2021
4. Mr. Vasavada, learned advocate submits that ESI
Court has enhanced the percentage of disability in
absence of any medical evidence ignoring the reasons and
premises of the Medical Board for assessing the disability
of the respondent at 14%. It is his further submission that
the ESI Court has enhanced the percentage of disability
without there being any evidence regarding the rejection
of the judgment and ESI Court is passed purely on
conjuncture and surmises without adverting to reasons
assigned by Medical Tribunal. According to his submission,
substantial question of law as required under Section 82 of
ESI Act are involved in the appeal. He therefore urges that
the appeal may be remitted for fresh consideration of
substantial question of law indicated in the memo of
appeal.
5. Mr. Asthavadi, learned advocate for the respondent
has supported the impugned judgment of ESI Court. He
submits that ESI Court has assessed the enhancing
disability on the basis of disability certificate issued by
General Hospital, Kheda wherein 20% disability is assessed.
Relying upon the decision of the Supreme Court in the
case of Gola Rajanna etc. v. Revisional Manager and
others etc reported in 2017 (1) SCC 45, he submits that
percentage of disability is a pure question of fact.
According to his submission, no question of law is
required under Section 82 of ESI Act is involved in the
appeal. He, therefore, urges that the appeal may be
dismissed. Alternatively, he submits that the matter may
be remanded to the ESI Court for fresh consideration if
this Court finds that the impugned judgment is non
speaking judgment.
C/FA/949/2016 ORDER DATED: 17/11/2021
6. I have considered the rival submissions.
7. It is not in dispute that the respondent workman had
preferred an appeal being Appeal No.12/2012 in the
Medical Appellate Tribunal, Vadodara to question the
assessment of 10% disability by the Medical Board. It is
not in dispute that the appellate Tribunal after considering
the evidence placed before it and after getting the
respondent No.2 may examined by the Medical Officer
assessed disability at 20%. Respondent workman was not
happy with the enhancement of the disability made by the
Tribunal, and therefore, he preferred Second Appeal before
the ESI Court, Nadiad.
8. The perusal of the impugned judgment of ESI Court
rendered in Second Appeal reveals that the ESI Court has
not at all assigned cogent and convincing reasons for
enhancing the percentage of disability of 20% from 14% as
assessed by the Medical Tribunal. It is eminently clear
from the impugned judgment that the reasons assigned by
the ESI Court for enhancing the disability are purely
conjecture and surmises dehorese any evidence. I am,
therefore, of the view that the impugned judgment needs
to be set aside and matter needs to be remitted to the ESI
Court for fresh consideration.
9. In view of the above, the appeal succeeds in part.
The impugned judgment and order of the ESI Court is
hereby set aside. The matter is remitted to the ESI Court
for fresh consideration after affording opportunity of
hearing to the parties in accordance with law.
C/FA/949/2016 ORDER DATED: 17/11/2021
10. It is clarified that this Court has not opined the
merits of the case.
11. The ESI Court is directed to finally dispose of the
matter as expeditiously as possible but not later than 31 st
March, 2022.
12. Record and Proceedings, be transmitted to the ESI
Court, Nadiad forthwith.
(A.G.URAIZEE, J)
Manoj
