JUDGMENT : Harsha Devani, J. This appeal under section 82 of the Employees' State Insurance Act, 1948 (hereinafter referred to as "the E.S.I. Act") is directed against the judgment and order dated 24.4.2007 passed by the Employees' State Insurance Court, Ahmedabad (hereinafter referred to as "the E.S.I. Court") in E.S.I. Application No.43 of 2003 whereby the application has been allowed and the order dated 9.10.2002 passed by the original opponents No.1 and 2 under section 45A of the E.S.I. Act has been quashed and set aside and the recovery certificate under sections 45A to 45I whereby the respondent is covered under the E.S.I. Act has been ordered to be set aside. 2. This appeal came to be admitted by an order dated 5.3.2008; however, at the time of admitting the appeal, no questions of law appear to have been formulated. A perusal of the memorandum of appeal shows that the appellant has proposed the following questions, which are stated to be substantial questions of law:- "(a) In light of the facts of present case and in view of the definition of the term "employee" defined in Section 2(9), whether the Directors of Private Limited Company, who is managing affairs of his company and who has been withdrawing salary from the respondent-company and who has been doing exclusively activities mainly in connection with the business activities of the respondent company, can be, for the purpose of coverage, considered as an employee or not and whether payments made to them as remuneration will qualify for contributions towards ESI fund and whether the employees, who are working inside the premises of hotels but whose names have not been shown in muster roll of the respondent company but mainly employed to do the work in connection of the respondent company be considered as employees of the opponent company and whether the demand of the appellant for contribution of all the employees at specified rates on such payment is justified or not ? (b) In view of the provisions of section 77 to be read with section 75 of the E.S.I. Act, it is right and justified of the E.S.I. Court to entertain the application of the opponent herein filed almost after 8 years i.e. from the date of issuance of C-11 notice dated 16.10.1995 intimating the coverage from the date 22.2.1994 when the opponent was provisionally covered and whether it is right and justified on part of the respondent to challenge the coverage at the time of recovery stage i.e. at very belated stage ? (c) In facts of present case and in view of the definition under section 1(5), whether the provisions of E.S.I. Act be made applicable to the present respondent ? And cannot the respondent be said to be liable to pay contribution towards E.S.I. contribution? (d) Whether the E.S.I. Court is right and justified in replying the issues No.1, 2, 4 and 6 in affirmative and issues No.3 and 5 in negative and whether the impugned judgment and order is right, justified and sustainable in law and/or in facts of present case ? (e) Whether the diverse findings and conclusions of the E.S.I. Court are right and justified and based on evidence obtaining on record or they are contrary to the weight of evidence on record and whether the E.S.I. Court is right and justified in ignoring or not giving opportunity to lead the evidence of the appellant witnesses before the E.S.I. Court ? (f) Is the E.S.I. Court justified in not relying on the Inspector's report and Surveyor's report, which was relied upon by the appellant herein? (g) In view of section 77(1-A) of the E.S.I. Act, can E.S.I. Court restrain the appellant corporation to invoke the power under section 45A to recover the dues of contribution and/or interest and/or damages, as no provisions of limitation is applicable to recover the abovementioned dues from the employer ?" 3. The facts giving rise to the present appeal are that the respondent herein filed an application under section 75(1) and (2) of the E.S.I. Act before the E.S.I. Court stating that it was running a hotel by the name of Manila Hotels. An ex-parte order dated 9.10.2002 for recovery of Rs.3,09,280/- had been made by the opponent therein (the appellants herein) under section 45A of the E.S.I. Act, without issuance of any notice to the respondent. An ex-parte order dated 9.10.2002 for recovery of Rs.3,09,280/- had been made by the opponent therein (the appellants herein) under section 45A of the E.S.I. Act, without issuance of any notice to the respondent. The said order dated 9.10.2002 had not been served upon the respondent and hence upon coming to know of the order orally, it had obtained a certified copy of the said order on 22.9.2003 and thereafter, moved an application before the E.S.I. Court and that the application was within the prescribed period of limitation. It was further stated therein that being aggrieved by the order dated 9.10.2002, it was required to make the application. The grounds for challenging the said order as set out in the memorandum of application are that the order dated 9.10.2002 under section 45A of the E.S.I. Act had been passed without issuance of any notice to the respondent and without affording any personal opportunity of hearing; that the opponent No.2 therein had not examined the record and had passed the ex-parte order without taking into consideration the evidence on record and had provisionally brought the respondent within the purview of section 2(12)(a) of the Act, which is illegal, because upon examining the record and the material, the respondent-establishment had only 9 employees and that the persons by the names of Laxmansingh and Mansingh were never employed by the respondent and that except for the visit note dated 22.2.1994 of the Insurance Inspector, there is no other material on record. Thus, the decision of the opponents to cover the applicant-establishment (the respondent herein) under section 2(12)(a) is illegal and in breach of the principles of natural justice. The respondent, accordingly, prayed that the order dated 9.10.2002 passed by the opponents No.1 and 2 therein under section 45A of the Act as well as the recovery certificate No.C.19 dated 11.2.2003 issued under section 45C to 45I of the E.S.I. Act whereby the applicant has been provisionally covered under the E.S.I. Act with effect from 22.2.94, be set aside. 3.1 In response to the application, the appellant filed its written statement at Exhibit-14 stating that the Insurance Inspector had visited the respondent-hotel on 22.2.1994 and had observed that 11 coverable persons were working for wages in the said hotel. The hotel had been using fridge, water-cooler, gas-stove, toaster and heater, all of which used electric power and LPG gas. 3.1 In response to the application, the appellant filed its written statement at Exhibit-14 stating that the Insurance Inspector had visited the respondent-hotel on 22.2.1994 and had observed that 11 coverable persons were working for wages in the said hotel. The hotel had been using fridge, water-cooler, gas-stove, toaster and heater, all of which used electric power and LPG gas. That in terms of the inspection carried out by the vigilance team, a C-11 dated 16.10.1995 allotting E.S.I. Code No.37-20049-112 SF (provisional) with effect from 22.2.1994 was issued but the respondent has not started compliance nor reported any grievance. As such the appellant-Corporation had issued a show-cause notice dated 8.10.2001 to start compliance. In response to the show cause notice the applicant (respondent herein) had requested that the Insurance Inspector of the Corporation may be directed to verify the record and to supply a copy of C-11. Accordingly, a copy of C-11 was sent to the applicant (respondent) by the appellant-Corporation on 8.11.2001 and the Insurance Inspector was deputed to verify the records but the respondent had shown inability to produce the record vide letter dated 21.2.2002 and thereafter. As such, C-18 dated 9.9.2002 was issued with instructions to explain with documentary evidence objection before 3.10.2002. But as the same was not responded, the opponent-Corporation (appellant herein) had issued order under section 45A of the E.S.I. Act on 9.10.2002 which was duly served on the respondent. That the same was not responded to and ultimately C-19 was issued on 11.2.03 and simultaneously the recovery proceedings were initiated by the Regional Office, E.S.I. Corporation, Ahmedabad. 3.2 Based upon the above pleadings of the parties, the E.S.I. Court framed the issues which as translated into English read thus: 1. Is the application made by the applicant legally tenable? 2. Does the applicant prove that there were only 9 employees in its establishment? 3. Does the opponent prove that there were 11 employees working in the applicant's establishment? 4. Does the applicant prove that the order passed against it under section 45A of the E.S.I. Act is illegal? 5. Does the opponent prove that the order passed against the applicant under section 45A is legal? 6. Is the applicant is entitled to the reliefs prayed for in the application? 7. What order? 4. Does the applicant prove that the order passed against it under section 45A of the E.S.I. Act is illegal? 5. Does the opponent prove that the order passed against the applicant under section 45A is legal? 6. Is the applicant is entitled to the reliefs prayed for in the application? 7. What order? 3.3 The E.S.I. Court, upon appreciation of the evidence on record, answered the issues No.1, 2, 4 and 6 in the affirmative and 3 and 5 in the negative and, accordingly, allowed the application and set aside the order dated 9.10.2002 as well as the recovery certificate dated 11.2.2003 after holding that the applicant (respondent herein) was not covered by the provisions of the E.S.I. Act. Being aggrieved, the appellant- Corporation is in appeal. 4. Mr. Sachin Vasavada, learned advocate for the appellant assailed the impugned order principally on the ground that in view of the provisions of section 77 read with section 75 of the E.S.I. Act, the E.S.I. Court was not justified in entertaining the application filed after almost eight years from the date of issuance of the C-11 notice dated 16.10.1995 intimating the respondent regarding it being provisionally covered under the provisions of the E.S.I. Act with effect from 22.2.1994. According to the learned advocate for the appellant, it was not permissible for the respondent to challenge the factum of it being covered by the provisions of the E.S.I. Act at a belated stage when the best judgment assessment has been made and recovery of dues under the Act was sought to be made. Referring to the facts of the case, it was pointed out that on 22.2.1994, the vigilance office had visited the premises of the respondent and had found that there were 11 employees and that electricity was used for the purpose of its business. Accordingly, Form-01 was handed over to the employer and it was advised to fill it and submit it to the concerned department. It was submitted that on 22.2.1994, the E.S.I. team had visited the premises of the respondent-employer and found that more than ten employees had been employed and various electric gadgets were being used for the purposes of the business of the employer. Accordingly, a visit note was prepared at site, which was handed over to the respondent. It was submitted that on 22.2.1994, the E.S.I. team had visited the premises of the respondent-employer and found that more than ten employees had been employed and various electric gadgets were being used for the purposes of the business of the employer. Accordingly, a visit note was prepared at site, which was handed over to the respondent. The visit note has been produced at Exhibit-24 and has been duly proved by examining the then Inspector Vigilance. Referring to the visit note, it was pointed out that the same records that 01 Form was handed over to the employer with advice to fill the same and submit to RD, E.S.I.C. It was urged that despite the respondent being advised to fill 0-1 Form it failed to do so. Thereafter, Form C-11 came to be issued to the respondent allotting it a code number as the establishment of the respondent fell within the purview of section 2(12) of the E.S.I. Act. Thus, the respondent was duly covered by the provisions of the E.S.I. Act and if it was aggrieved by it being so covered, it ought to have challenged the same at the relevant time. It was pointed out that a show cause notice came to be issued to the respondent on 8.10.2001 for compliance with the provisions of the E.S.I. Act pursuant to which the respondent vide letter dated 30.10.2001 requested the appellant to send an Inspector for inspection and to furnish copy of Form C-11. In response to such letter, the appellant addressed a letter dated 8.11.2001 to the respondent forwarding a copy of Form C-11. Thereafter, inspection was fixed, however, since the M.D. of the respondent was busy with some work or the other, such inspection could not be carried out. Notice of inspection of records of the factory of the respondent under section 45 of the E.S.I. Act was issued on 18.2.2002; however, due to disturbances in the city, the inspection could not take place. It was further pointed out that a notice in Form C-18 came to be issued on 9.9.2002 reminding the respondent that it had not paid the contributions in accordance with law for the period from 22.2.1994 to 31.5.2002 and it was proposed to recover Rs.2,01,087/- which was the amount of contribution payable by it. It was further pointed out that a notice in Form C-18 came to be issued on 9.9.2002 reminding the respondent that it had not paid the contributions in accordance with law for the period from 22.2.1994 to 31.5.2002 and it was proposed to recover Rs.2,01,087/- which was the amount of contribution payable by it. Thereafter, an order dated 9.10.2002 came to be passed under section 45A of the E.S.I. Act determining the total contribution payable by the respondent for the period 22.2.1994 to 31.5.2002 at Rs.3,09,280/- and on 11.2.2003 application was made to the Recovery Officer for recovery of the contribution under section 45C to 45I of the E.S.I. Act. It was submitted that it was only thereafter that the respondent filed an application under section 75(1) and (2) of the E.S.I. Act before the E.S.I. Court challenging the order under section 45A thereof as well as the recovery certificate and the certificate dated 22.2.1994 whereby it was provisionally covered by the E.S.I. Act. It was submitted that thus, at the stage of challenging the order under section 45A of the E.S.I. Act, it was not open for the respondent to challenge the previous orders passed by the appellants covering the respondent under the E.S.I. Act. Thus, the E.S.I. Court grievously erred in entertaining the challenge to the order dated 22.2.1994 and holding that the respondent was not covered by the provisions of the E.S.I. Act. It was submitted that the E.S.I. Court ought to have appreciated that since the respondent -company had not challenged the provisional coverage it cannot subsequently challenge the amount of contribution to be paid and deposited with the E.S.I. Corporation and that on this ground alone, the application of the respondent ought to have been rejected. It was, accordingly, urged that the impugned judgment passed by the E.S.I. Court deserves to be quashed and set aside and the appellant should be permitted to recover the contribution payable by the respondent. 5. Opposing the appeal, Ms. Asha Gupta, learned advocate for the respondent submitted that an appeal under section 82 of the E.S.I. Act lies against an order of the E.S.I. Court only if it involves a substantial question of law and that such question of law should arise out of the impugned order. 5. Opposing the appeal, Ms. Asha Gupta, learned advocate for the respondent submitted that an appeal under section 82 of the E.S.I. Act lies against an order of the E.S.I. Court only if it involves a substantial question of law and that such question of law should arise out of the impugned order. However, in the present case all the questions proposed by the appellant have been raised for the first time before this court and were never raised before the E.S.I. Court. Moreover, all the questions raised before this court are questions of fact and not questions of law and hence, the appeal itself is not maintainable as the same does not give rise to any substantial question of law. Reference was made to the written statement filed by the respondent at Exhibit-14 to point out that it was the specific case of the respondent that no documents had been furnished to it, which fact has not been denied by the appellant-Corporation. Reliance was placed upon the decision of the Supreme Court in the case of Boodireddy Chandraiah v. Arigela Laxmi, AIR 2008 SC 380 , wherein the Supreme Court held thus: "20. The question of law raised will not be considered as a substantial question of law, if it stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the documents cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey, (1976) 1 SCC 803 , held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference. (See Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722 )" "23. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 )". 5.1 Referring to the questions raised by the appellant before this court, it was pointed out that the questions raised are within the realm of questions of fact and that the same cannot in any manner be said to be substantial questions of law arising out of the impugned order. Moreover, in the present case, it is not the case of the appellant that the E.S.I. Court lacked jurisdiction. It was urged that having regard to the fact that no such facts or issues were pleaded before the trial court, no questions in relation thereto can be considered by this court. 5.2 Ms. Moreover, in the present case, it is not the case of the appellant that the E.S.I. Court lacked jurisdiction. It was urged that having regard to the fact that no such facts or issues were pleaded before the trial court, no questions in relation thereto can be considered by this court. 5.2 Ms. Gupta further submitted that the impugned judgment is based upon findings of fact recorded by the E.S.I. Court after appreciating the evidence on record and that such findings have not been dislodged by the appellant by leading any evidence to the contrary and hence, the appeal being devoid of merit, deserves to be dismissed. In support of her submission, the learned counsel placed reliance upon the decision of the Karnataka High Court in the case of Employees' State Insurance Corporation v. Super Tailors, 1999 (83) FLR 940, for the proposition that the High Court under section 82 of the E.S.I. Act as appellate court cannot interfere with the findings of fact recorded by the Employees' Insurance Court. 6. In the backdrop of the facts and contentions noted hereinabove, what emerges is that before the E.S.I. Court, the respondent while challenging the recovery certificate as well as the order passed under section 45A of the Act, had also challenged the order dated 22.2.1994 whereby it was provisionally sought to be brought within the purview of the Act. Before this court, it has been vehemently contended on behalf of the appellant that the said order had attained finality as it has not been challenged at the relevant time and that the E.S.I. Court was not justified in entering into the merits of such order. In this regard, a perusal of the issues framed by the E.S.I. Court which have been translated and reproduced hereinabove, makes it abundantly clear that the question regarding the validity of the order dated 22.2.1994 whereby the respondent was sought to be covered under the provisions of the Act was very much in issue between the parties. At the relevant time, the appellant did not appear to have objected to such issue being raised and decided by the E.S.I. Court and it is only at the stage of appeal that for the first time before this court, it is sought to be contended that the validity of such order could not have been gone into by the E.S.I. Court. 7. 7. Examining the case on merits, the record reveals that before the E.S.I. Court, the appellant had examined witness Keshavan Namodiri Govindan at Exhibit-32, who at the relevant time was the Vigilance Inspector (West Zone) and had carried out inspection of the establishment of the respondent on 22.2.1994. The said witness has identified his signature on the visit note Exhibit-24 as well as the signatures of other officers on the said note. He has further deposed that at the relevant time eleven employees were employed by the applicant establishment and that various electrical equipments were being used and hence, it was recommended that the applicant be covered by the provisions of the E.S.I. Act. In his cross- examination, it has come out that on 22.2.1994, when he had gone for inspection, the names of six persons were shown in the attendance register. Since the names were there in the muster, he had not asked the names. He had not inquired as regards the nature of the work done by those persons. That he had not asked the names of the persons who were in charge of the security. Laxmansingh and Mansingh were roaming around with a cloth in their hands. He has admitted that it is true that C-11 form had not been issued to the hotel and that issuance of C-11 does not fall within the ambit of his duties. That he had not inquired anything regarding the wages of the eleven persons nor had he tried to ascertain the details regarding Laxmansingh and Mansingh. This in sum and substance is the evidence adduced on behalf of the appellant. It may be noted that though the learned advocate for the appellant has referred to various documents as mentioned hereinabove, which appear to have been produced on record by way of a list of documents, none of these documents except the visit note have been proved by examining any witness and, therefore, such documents have not been exhibited. Needless to state that unless such documents and their contents are proved, the same are not admissible in evidence and hence, reliance placed upon such documents at the stage of appeal, when such documents have not been proved before the E.S.I. Court is misconceived. 8. Needless to state that unless such documents and their contents are proved, the same are not admissible in evidence and hence, reliance placed upon such documents at the stage of appeal, when such documents have not been proved before the E.S.I. Court is misconceived. 8. As is evident from the issues framed by the trial court, right from the inception the question of the validity of the order dated 22.2.1994 was very much in issue before the E.S.I. Court and framing of such issues had not been objected to by the appellant. Thus, the appellants by their conduct have acquiesced with the challenge to the said order together with the order passed under section 45A of the Act. Hence, at this belated stage, the appellant cannot be heard to contend that such issue could not have been gone into. Moreover, as rightly pointed out by the learned counsel for the respondent, a question of law has to arise out of the impugned order. In the present case, in the absence of any such objection having been raised before the court below, the E.S.I. Court had framed issues regarding the very controversy, which according to the appellant could not have been raised by the respondent. Under the circumstances, when no factual foundation had been laid and there were no pleadings in this regard before the E.S.I. Court, the said court had no occasion to deal with the same and hence, such question does not arise out of the impugned order but has been raised for the first time before this court. It need not be stated that an appeal against an order passed by the E.S.I. Court lies to the High Court only on a substantial question of law, which question has to arise out of the impugned order. In the present case, the principal argument canvassed before this court was as to, whether the E.S.I. Court was justified in entertaining the challenge to the order dated 22.2.1994, which does not arise out of the impugned order. 9. In the present case, the principal argument canvassed before this court was as to, whether the E.S.I. Court was justified in entertaining the challenge to the order dated 22.2.1994, which does not arise out of the impugned order. 9. A perusal of the questions proposed by the appellant reveals that question (a) relates to the issue as to whether the Director of the Private Limited Company can be said to be an employee within the meaning of section 2(9) of the E.S.I. Act, which has been raised for the first time before this court and has neither been pleaded nor was it ever the case of the appellant before the court below that the Director is an employee of the respondent Company. Such question, therefore, evidently does not arise out of the impugned order. The second part of question (a) is as to whether employees who are working inside the premises but whose names have not been shown in the muster roll can be considered to employees of the respondent Company. From the very frame of the question, it is apparent that the same is based upon a question of fact. When no evidence on facts has been led to show that there were employees other than those whose names were not shown on the muster roll, no question of law can be raised in the absence of the necessary evidence in that regard. As can be seen from the other proposed questions, the same do not arise out of the impugned order and are more in the nature of arguments. In effect and substance, the questions raised by the appellant before this court, are all questions of fact and not the questions of law without any factual foundation having been laid in that regard either in the pleadings or by adducing evidence in support thereof before the E.S.I. Court and for the first time, new issues are sought to be raised before this court in appeal. On a plain reading of the proposed questions it is apparent that a part of the questions raised before this court cannot be said to arise out of the impugned order, and the other questions raised by the appellant fall within the realm of questions of fact. On a plain reading of the proposed questions it is apparent that a part of the questions raised before this court cannot be said to arise out of the impugned order, and the other questions raised by the appellant fall within the realm of questions of fact. Under the circumstances, it is not possible to state that the appeal gives rise to any question of law, much less, a substantial question of law as proposed or otherwise, so as to warrant interference. 10. In the absence of any substantial question of law, the appeal, fails and is, accordingly, dismissed. First Appeal Dismissed.