E.S.I. Corporation vs Depot Manager, M.P.S.R.T.C.

A.K. Gohil, J.—In this appeal u/s 82 of the Employees'' State Insurance Act, 1948 (for short "the Act of 1948") appellant has challenged the impugned order dated 10-8-2002 passed by Employees'' State Insurance, Labour Court, Indore in Case No. 5/90 (ESI).

Admittedly appeal u/s 82 of the Act of 1948 lies only on the ground to this Court when it involves substantial questions of law. In this case by the impugned order dated 10-8-2002 the E.S.I. Court has set-aside the recovery letter dated 17-1-1990 passed by the E.S.I. Corporation. The submission of Shri Sharan is that the letter dated 17-1-1990 is not a show-cause notice but it is an order of determination which has been passed u/s 45A of the Act of 1948. On the contrary in the reply the E.S.I. Corporation has himself treated the said letter dated 17-1-1990 as a show-cause notice. No other order has been produced on behalf of the E.S.I. Corporation showing that after the aforesaid notice of dated 17-1-1990 when they passed the order of determination as required u/s 45A of the Act of 1948. The procedure has been prescribed for recovery u/s 45A of the Act of 1948. The recovery can be made as per Section 45B and that can only be made when order of determination is passed u/s 45A of the Act of 1948. It is also true that before passing an order of determination u/s 45A(1) the principle of natural justice has to be followed by the Corporation. Before the Labour Court it was the burden on the appellant/Corporation to prove that if the show-cause notice dated 17-1-1990 was issued by the Corporation that on which date the order of determination was passed. In the absence of any order of determination the recovery proceedings cannot be initiated. In this case the Corporation has neither shown before the Labour Court nor before this Court that on which date the order of determination was passed by the Corporation as required u/s 45A(1) of the Act of 1948. In such circumstances the matter has rightly been concluded by the Labour Court on the question of finding of fact. I do not think that any substantial questions of law is involved in this appeal for determination by this Court.

Accordingly I decline admission of this appeal and dismiss the same in limine. Record be returned.