An appeal against an ex-parte order is maintainable if it raises substantial questions of law, and the lack of evidence and corroboration can lead to the setting aside of the ex-parte judgment and decree.

T. Vaiphei, J.

1. The sole question which falls for consideration is whether appeal lies against the ex parte decree dated 04.04.2003 passed by the learned Presiding Officer, Employees State Insurance Court, Shillong in Misc. (ESI) Case No. 4 of 2002. The question arises out of the following facts and circumstances:

The appellant issued the Notice dated 31.03.2003 under Section 82 of the Employees State Insurance Act, 1948 ("the Act" for short) upon the respondent to pay his contribution amounting to Rs. 69,712/- for the period from April, 2001 to March, 2002 in accordance with the provisions of Section 40 of the Act read with Regulations 29 and 31 of the Employees' State Insurance (General) Regulations. The respondent thereupon filed on application before the Employees State Insurance Court, Shillong under Section 75(g) of the Act for declaration that his firm was not covered by the provisions of the Act as it employed only six persons and was not, therefore, liable to pay the contribution as demanded in the impugned notice.

2. The Insurance Court by the order dated 23.10.2002 admitted the application and stayed the operation of the impugned notice. On receipt of notice of appearance, the appellant apparently entered its appearance before the Insurance Court on 19.12.2002 and prayed for time, which was allowed by fixing 10.02.2003 for show cause against the application. On the next date fixed for show cause, the appellant did not file the show cause statement, whereupon the Court again fixed 25.03.2003 for filing the show cause, but the appellant again did not put in its appearance or filed the show cause even on this date. It would appear that on the failure of the appellant to make its appearance on 25.03.2003, the Court directed that the case be proceeded with against it ex parte and accordingly fixed 27.03.2003 for ex-parte hearing and evidence. On the date so fixed for hearing, the respondent evidently filed his examination-in-chief on affidavit and produced some documentary evidence to substantiate his case. The Insurance Court thereafter passed the impugned ex-parte decree.

3. At the outset, Mr. A.S. Siddique, the learned Counsel for the respondent raises preliminary objection on the maintainability of the appeal contending that there is no provision under the Act for filing an appeal against an ex-parte order passed by an Insurance Court. Drawing my attention to Rule 26(6) of the Meghalaya Employees' State Insurance Courts Rules, 1980 ("the Rules" for short), he submits that when the ex-parte order in this case has admittedly been passed under Rule 26(4) of the Rules, the only remedy available to the appellant was to apply, within thirty days from the date of such order, in Form 6 to the Court which passed the order to set it aside, and having not availed of this provision, this appeal is incompetent and is liable to be dismissed at the very threshold.

4. He further points out that the only appeal contemplated by Section 82 of the Act is an appeal involving a substantial question of law, and no substantial question of law can possibly be involved in a case of this nature, which is basically for setting aside an ex-parte order. He, therefore, submits that this appeal is not maintainable and is liable to be dismissed at the threshold. Per contra, Mr. K.S. Kynjing, the learned senior counsel for the appellant, contents that the question whether the ex-parte order was passed in accordance with law certainly involves a substantial question of law. He highlights a number of procedural irregularities committed by the Insurance Court such as the recording of evidence otherwise than the procedure prescribed by Rule 31, the very admission of suit without complying with the provisions of law, etc. and of the inherent lack of evidence to substantiate the case of the respondent and lack of corroboration of the sole testimony of the respondent. He finally submits that the question as to whether the respondent firm is an employer