Statutory orders must be speaking orders and cannot be based on presumptions or assumptions. Orders under Section 45A of the ESI Act must be self-speaking and based on deliberations and sincerity.

JUDGMENT :

Prayer: Appeal filed under Section 82 of the Employees Insurance Act, 1948 against the fair order and decree dated 13.07.2015 in EIOP No. 30 of 2005, on the file of the Employees Insurance Court (Principal Labour Court), Chennai.

1. Statutory orders are expected to be speaking orders. Nonspeaking order cannot be construed as an acceptable or a valid order within the provisions of the ESI Act. The statute contemplates various procedures as well as the factual and other issues. While so, the authorities exercising the powers under the statute are expected to adjudicate the issues with reference to the documents and materials available on record and pass appropriate speaking orders enabling the public to understand that the orders are passed based on merits as well as by considering the available evidences. It is not as if the statutory authority can pass an order that he has applied his mind. Mere application of mind is insufficient. The application of mind must be in consonance with the materials available on record. In the absence of any materials, the authorities cannot pass such an order based on presumptions and assumptions or the unknown information which was not recorded in the order. Thus, merely stating that the statutory order is passed by application of mind or based on the information is absolutely untenable and such an application of mind based on the information must be substantiated with reference to the materials available on record otherwise such orders are to be treated as opposed to the provisions of the statute.

2. The order dated 13.07.2015 passed in EIOP No. 30 of 2005 is under challenge in the present civil miscellaneous appeal on hand.

3. The substantial questions of law raised by the appellant read as under:

“(a) Whether the employees engaged by the Respondent under various head fall within the definition of “employees” as defined under Section 2(9) of the ESI Act?

(b) Whether the Hon'ble EI Court is justified in setting aside the impugned order passed under Section 45A of the ESI Act dated 13.07.2015 on the premise of absence of documentary evidence produced by the Appellant herein before the Hon'ble EI Court, when the Respondents have not produced the contract agreement and salary register, attendance register, TDS deduction for proof of payment made to outside agency and other individuals as and when there is necessity for their services?

(c) Whether the Hon'ble EI Court is justified in placing the burden on the Appellant, when the Respondent has approached the Court and also challenged the Section 45A Order which was passed in accordance with the ESI Act?”

4. These substantial questions of law raised are relatable to the facts and circumstances of the case which were already adjudicated. However, the learned counsel appearing on behalf of the appellant reiterated that the authorities competent based on the information collected passed an order under Section 45-A of the Act. Thus, such an order passed under Section 45-A of the Act based on certain informations cannot be nullified by the ESI Court by stating that the authorities have not produced any documents. Admittedly, no documents were available in the present case to establish the case of the Employees' State Insurance Corporation. However, it is contended that the authorities are well within their powers to collect the information and passed an order under Section 45-A of the Act.

5. The ESI Court also arrived at a conclusion that Section 45- A order was passed. The order was challenged under Section 75-A of the Act before the Court. However, the applicant could not be able to produce documents and they may not be able to substantiate their contentions so as to justify the contributions. Based on such factors, the ESI Court dismissed the claim of the Corporation. Challenging the said order, the present appeal is filed.

6. Let us now consider the scope of Section 45-A of the Act, which deals with determination of contribution in certain cases.