M/S Howrah Saw Mill & Anr vs The State Of West Bengal & Ors
2022 Latest Caselaw 6889 Cal

    5                    IN THE HIGH COURT AT CALCUTTA
23.09.2022              CONSTITUTIONAL WRIT JURISDICTION
  sb
   Ct 550                       APPELLATE SIDE
                                 WPA 20433 of 2021

                             M/S Howrah Saw Mill & Anr.
                                          Vs.
                            The State of West Bengal & Ors.

                         Mr. Swarup Pal,
                         Ms. Madhumita Datta,
                         Mr. Gurusaday Dutta
                                    ... For the petitioners.

                         Mr. Susovan Sengupta,
                         Mr. Srikanta Pal
                                          ... For the State.

                         Mr. Rama Prasad Sarkar
                                    ... For the respondent no.5.

The present writ application has been filed inter alia

challenging the Award dated 1st October, 2019 passed by

the Second Industrial Tribunal, West Bengal.

Mr. Pal, appearing in support of the aforesaid

application submits that the petitioner no.1 had never

employed the private respondent, being the respondent

no.4. Drawing my attention to page 55 of the writ

application it is submitted that the master roll of the

petitioner no.1 was exhibited in the proceedings before the

Tribunal and the respondent no.4 was confronted with

such master roll. It would appear from the aforesaid

master roll, the name of the respondent no.4 does not

feature therein. Mr. Pal further submits that the learned

Tribunal directed reinstatement of the respondent no.4

along with back wages. Such a direction was passed

despite the respondent no.4 neither making any positive

statement nor leading any evidence so as to demonstrate

that the respondent no.4 was not gainfully employed since

the date of his alleged termination. There is no finding on

the part of the Tribunal that the respondent no.4 was not

gainfully employed from the date of his alleged

termination till the date of passing of the Award and as

such no direction for payment back wages could have

been issued. In support of his aforesaid contention, Mr.

Pal relies on a judgment delivered by the Hon'ble Supreme

Court in the case of Deepali Gundu Surwase and Kranti

Junior Adhyapak and others reported in 2013 (139)

FLR 541. He submits that the Award is based on no

evidence and has been passed in a biased manner. The

Award suffers from gross irregularities and is not

sustainable in law. Mr. Pal, at this stage prays for grant of

interim order as according to him, unless such order is

granted the respondent no.4 shall execute the Award by

preferring an application under Section 33(c)2 of the

Industrial Disputes Act, 1947.

Per contra, Mr. Sarkar, appearing for the

respondent no.4 submits that the aforesaid Award passed

by the Tribunal does not suffer from any irregularity. On

the basis of the evidence led by both the parties and after

taking into consideration the exhibits and the

submissions made by the parties, the Tribunal was

ultimately pleased to pass the aforesaid Award. The

respondent no. 4 is out of service since 2012. He has not

been paid a single paise by the petitioner no.1 since then.

This Hon'ble Court in exercise of its extraordinary

jurisdiction ought not to entertain the aforesaid

application without the petitioner no.1 securing the claim

of the respondent no.4. and, in any event, the order of

stay should not be granted. He submits that his client was

never gainfully employed. Despite directions passed by the

Tribunal the petitioner no.1 has not paid any amount to

the respondent no.4, whose last drawn salary was

Rs.11,000/- per month.

I have considered the submissions made by the

respective parties and have taken into consideration the

materials on record and I am of the view that the

petitioners have been able to make out a prima facie case.

Unless the impugned order is stayed the petitioners are

likely to suffer prejudice, as the respondent no.4 in such

event shall execute the Award. In the event the Award is

executed the same would create multiplicity of judicial

proceedings. At the same time, I am not unmindful of the

fact that the Tribunal after protracted litigation has been

pleased to pass an Award taking into consideration all

aspects of the matter, as such the writ petitioners must

also be put to terms.

In such circumstances, there shall be an

unconditional stay of the Award dated 1st October, 2019

passed by the Second Industrial Tribunal, West Bengal,

for a period of six weeks from date.

I direct the petitioners to deposit a sum of

Rs.4,00,000/- (Rupees Four Lakhs) only with the learned

Registrar General of this Hon'ble Court within a period of

six weeks from date. If the aforesaid sum is deposited with

the learned Registrar General, the same shall be invested

in an interest bearing Fixed Deposit Account in any

nationalized bank of his/her choice and same shall be

kept renewed from time to time until further orders of this

Court.

In the event, the aforesaid deposit is made within

the time stipulated, the interim order passed herein shall

continue till the disposal of the writ application or until

further orders whichever is earlier.

In the event, the petitioners fail to make deposit of

the aforesaid sum within the time stipulated above, the

interim order passed hereinabove, shall stand vacated and

the respondent no.4 shall be entitled to execute the Award

by taking steps as are available to him in law.

Liberty is granted to the respondents to file affidavit-

in-opposition to the present application within two weeks

after the ensuing Puja vacation. Reply, if any, thereto be

filed one week thereafter.

List this matter in the Combined Monthly List of

December, 2022.

(Raja Basu Chowdhury, J.)