Calcutta High Court (Appellete Side)
Sealdah Division vs Smt. Gayetri Ghosh on 29 January, 2021
29.01.2021
Item No. 03
Ct. No. 04
PG
F.M.A.T. 392 of 2017
With
I.A. No. CAN 1 of 2017 (Old CAN 7277 of 2017)
With
I.A.No. CAN 2 of 2017 (Old CAN 7278 of 2017)
The Divisional Railway Manager, Eastern Railway,
Sealdah Division
Vs.
Smt. Gayetri Ghosh
Mr. Ashok Bhowmick
Mr. Dhiman Ray....for applicant/appellant
Mr. Prasenjit Debnath......for respondent
Mr. Bhowmick, learned advocate appears on
behalf of applicant praying for condonation of delay in
filing the appeal. We find from report of Stamp
Reporter that the appeal is delayed by 832 days.
Mr. Bhowmick submits, his client had
pursued remedy of review. The time was consumed
thereby. On being unsuccessful, the appeal. Mr.
Debnath, learned advocate appears on behalf of
respondent and submits, order of compensation
regarding a workman, who has long died, is under
challenge in this grossly delayed appeal. On
observation made by Court of readiness to hear the
appeal here and now, he submits, he is ready for
hearing of the appeal.
In view of aforesaid, we condone the delay
and allow I.A. no. CAN 1 of 2017 (old CAN 7277 of
2017).
By consent of parties the appeal is taken up
for hearing on dispensing with all formalities
including service of notice of appeal. The documents
disclosed in the stay application, parties submit, are
sufficient for the purpose.
Mr. Bhowmick submits, opposite party no. 1
in the claim case (Claim Case no. 614 of 2011 in the
Court of Commissioner, Employees' Compensation,
West Bengal) was named as Haradhan Saha. His
client was opposite party no. 2. Opposite party no. 1
was said to be the contractor and his client, principal
employer. As such, the judgment and order for
payment of compensation by his client at Rs.
5,68,680/- along with interest @ 12% per annum
from expiry of one month from date of accident till
deposit.
He submits, his instructions are that the
contractor engaged by his client was M/s. H.C. Saha.
This was why the review. The review petition was
rejected by order dated 16th December, 2016. His
client is aggrieved as, on payment of the
compensation, his client will have difficulty in
recovering from the contractor, per entitlement under
sub-section (2) in section 12, Employee's
Compensation Act, 1923. He submits further, in spite
of classification of the appeal as appeal from original
order, certified copies of both, impugned order as well
as order in review have been annexed on his client
being aggrieved thereby. Mr. Debnath submits, this
point was never urged at the trial.
We find from order dated 16th December,
2016, rejecting the review, the Commissioner had
said therein that only at the time of written argument
it was mentioned that applicant failed to produce
name of actual contractor. In the context it was
further said as follows:
"........It remains unexplained why Railway
being the principal remained silent to disclose
the name of actual contractor. The scope of
review is very limited especially in a Quasi-
judicial Body. Only on the ground of discovery of
fresh evidence or apparent error on the face of
record Quasi-Judicial Body may review on
procedural defect not on merit. I think OP.2, the
Railway present prayer to review the judgment
on the ground stated therein is not maintainable
before a Quasi-judicial Body. Because such
review amounts to interfere in the merit of
judgment. Hence.
Ordered
that the prayer for review is rejected.
According to this order the petition is disposed
of."
Sub-section (2) in section 12 says, inter alia,
where principal is liable to pay compensation, he
shall be entitled to be indemnified by the contractor.
Procedure is there in rule 39 of Workmen's
Compensation Rules, 1924 (as pointed out by Mr.
Debnath) for appellant to prefer claim on payment of
compensation.
We see no reason to interfere with either the
order on review or impugned judgment. We confirm
impugned judgment. The appeal is dismissed. As a
consequence the stay application (I.A.no. CAN 2 of
2017 (old CAN 7278 of 2017) is also dismissed.
Mr. Bhowmick prays for stay of operation of
our order. We have considered the prayer and reject
it.
(Arindam Sinha, J.)
(Suvra Ghosh, J.)
