Calcutta High Court (Appellete Side)

Gora Chand Adhikary & Anr vs The State Of West Bengal & Ors on 28 April, 2023

Form No.J(2)

                 IN THE HIGH COURT AT CALCUTTA
                CONSTITUTIONAL WRIT JURISDICTION
                         APPELLATE SIDE
Present :
The Hon'ble Justice Raja Basu Chowdhury

                            WPA 2868 of 2023

                       Gora Chand Adhikary & Anr.
                                   Versus
                      The State of West Bengal & Ors.


For the petitioners             :     Mr. Subhas Chandra Sarkar.


For the respondent no.4         :     Mr. Debashis Kundu

Mr. A. Bose

Heard on : 27.02.2023

Judgment on : 28.04.2023

Raja Basu Chowdhury, J:

1. The petitioners claim to have been appointed by the company

namely M/s Eastern Paper Mills Ltd. The petitioners claim that

they were refused employment. Challenging refusal of

employment, a conciliation proceeding was initiated.

Subsequently, the appropriate Government by powers conferred

under Section 10 read with Section 2A of the Industrial Disputes

Act, 1947 (hereinafter referred to as the "said Act") was, inter

alia, pleased to frame the following issues and had referred the

same to the Fifth Industrial Tribunal:

"1. Whether refusal of employment of Sarbashri Ashis Kumar Bose, Dipak Kumar Sen, Gora Chand Adhikari, Sankar Das, Joydeb Bhattacharjee, Haridas Malo and Debasish Banerjee by the management of M/s. Eastern Paper Mill Limited w.e.f. 27.12.2006 is justified?

2. What relief, if any, are the workmen entitled to?"

2. Subsequently by order of the Labour Department the case was

transferred to the Second Industrial Tribunal.

3. In connection with the above reference case the petitioners had

filed an application under Section 15(2)(b) of the said Act. The

same was, however, rejected on the ground that the same was

filed belatedly.

4. Being aggrieved a writ application was filed before this Hon'ble

Court which was registered as WP No. 15561 of 2012. By an

order dated 7th May, 2014, this Hon'ble Court was, inter alia,

pleased to set aside the order of rejection and directed the

Tribunal to decide the matter on the basis of evidence on record

after giving an opportunity to the parties to argue the matter and

also directed the Tribunal to revisit the application under Section

15(2)(b) of the said Act, and pass a reasoned order. By the

aforesaid order this Hon'ble Court also directed the Tribunal to

decide the main matter on merits as expeditiously as possible,

preferably within a period of 6 (Six) months from the date of

conclusion of evidence.

5. Since then by an order dated 20th March, 2019, the Tribunal

was, inter alia, pleased to allow the application under Section

15(2)(b) of the said Act, on contest thereby holding that the

petitioners shall be entitled to get interim relief equivalent to

subsistence allowance admissible under the West Bengal

Payment of Subsistence Allowance Act, 1969, with effect from the

date of the order of reference under Section 10(2A) of the said

Act. By the aforesaid order the Tribunal also fixed a date for

further cross-examination of the opposite party's witness no. 3.

Since then, the matter had been kept pending.

6. In the interregnum, the learned Second Industrial Tribunal, West

Bengal, by an order dated 26th May, 2022 was, inter alia, pleased

to record that since both parties are not willing to proceed, the

case should be dismissed and following such observation, he

held since the proceedings under Section 10(2A) of the said Act is

dismissed, as the industrial dispute between the parties is no

longer in existence. The aforesaid order was directed to be

treated as an award.

7. The petitioners were unaware of the aforesaid order and had no

notice of such order until the time mentioned hereinafter.

Immediately upon ascertaining the factum of passing of the

aforesaid award, the petitioners had filed an application before

the Tribunal, inter alia, praying for review of the aforesaid order

on the ground that the petitioners were unaware of the order of

dismissal. During the Covid period the petitioners could not

contact their advocates and could not take steps in the matter.

In the aforesaid facts the petitioners prayed for review of the

order dated 26th May, 2022. The said application was, however,

rejected by the Tribunal by order dated 6th September, 2022,

inter alia, on the ground that the review petition had not been

filed within 15 days from the date of the award, the same was

barred by limitation and cannot be considered legally.

8. Mr. Sarkar, learned advocate appearing on behalf of the

petitioners, submits that the petitioners were completely in the

dark and unaware with regard to the factum of passing of the

aforesaid order dated 26th May, 2022. In fact, subsequent to the

passing of the order for interim relief, a writ application was filed

before this Hon'ble Court challenging the same. Such application

was registered as WPA 15561 of 2021. The respondent/ employer

did not comply with the order of interim relief and due to paucity

of funds/ financial hardship, the petitioners also could not keep

regular contact with their lawyer. In the interregnum, pandemic

intervened. On repeated occasions the respondent no.4 took

adjournments. On one hand the petitioners were denied the

benefit of the order for interim relief passed by the learned

Tribunal by reasons of pendency of the writ application and on

the other hand the present proceedings were dismissed. It is

submitted that since the matter was pending before this Hon'ble

Court, no further steps were taken in connection with the main

application pending before the Tribunal. It is submitted that it

was expected that final hearing before the Tribunal would take

place after disposal of the application pending before this Hon'ble

Court. He says that is only on 5th July, 2022 that the respondent

no. 4 made a disclosure before the Hon'ble Court that the

Industrial dispute is no longer in existence. According to the

petitioners they were unaware of the order of dismissal till 5 th

July, 2022. Only thereafter the review was filed.

9. The Tribunal also did not take into consideration that the

petitioners were interested in the matter. He says that the

Tribunal had overlooked the fact that the respondent no.4 had

denied the petitioners, the benefits of the interim relief which

coupled with the pandemic, prevented the petitioners from taking

effective steps in the matter. Financial stress also prevented the

petitioners from effectively perusing the matter before the

Tribunal.

10. Mr. Sarkar, learned advocate representing the petitioners,

submits that the application for review was dismissed on a

technical ground. He says that technicality should not stand in

any way of the petitioners getting relief. In support of his

contention, he has placed reliance on a judgment delivered by

this Hon'ble Court in the case of Ganesh Chandra Guha v.

State of West Bengal & Ors., reported in 2023 SCC OnLine

Cal 241.

11. Mr. Kundu, learned advocate enters appearance on behalf

of the respondent no.4. He submits that the Tribunal has rightly

dismissed the application for review. He says that no review is

permissible beyond 15 days in terms of Rule 27 of the West

Bengal Industrial Disputes Rules, 1958. He prays for dismissal of

this application.

12. Heard the learned advocates appearing for the respective

parties and considered the materials on record.

13. It also appears from the record that the application for

interim relief was allowed by order dated 29th March, 2019. The

employer/ respondent no. 4 did not comply with the direction for

interim relief. Challenging the order for interim relief, a writ

application was filed on 27th September, 2021, which was

registered as WPA 15561 of 2021. The petitioners claim that the

aforesaid writ application was called on 11 occasions and on

each and every occasion the respondent no.4 took adjournments.

It is only on 5th July, 2022 the respondent no. 4 made a

disclosure before the Hon'ble Court that the Industrial dispute is

no longer in existence. As such according to the petitioners they

were unaware of the order of dismissal till 5th July, 2022. Only

thereafter the review was filed. This apparently was not

considered.

14. Even otherwise the petitioners are without any service for a

more than a decade. Although the petitioners had been able to

secure bare minimum relief to sustain themselves in the form of

subsistence allowance, the employer chose not to make payment

of the same. Being unable to sustain themselves the petitioners

could not get the assistance of a lawyer. It is at this stage when

the main application was pending for hearing of arguments on

merits that the same was dismissed. It is, therefore, apparent

that when the reference case was dismissed, witness action was

already completed. Simply because the parties did not submit

their arguments, the same could not be a ground for the

Tribunal not to adjudicate upon the issue, especially when the

witness action was otherwise complete. In the instant case,

records would reveal that challenging the order for interim relief,

a writ application was filed, and the respondents did not make

payment of such interim relief. In my view, in the facts of the

case the Tribunal ought not to have rejected the petitioners'

application solely on the ground of non-filing of arguments. I find

that the petitioners have also relied on a judgment delivered by

this Hon'ble Court in the case of Ganesh Chandra Guha v.

State of West Bengal & Ors., (supra). From a perusal of the

aforesaid judgment, it would appear that this Court while placing

reliance on a judgment delivered by the Hon'ble Supreme Court

in the case of Grindlays Bank Ltd. v. Central Govt. Industrial

Tribunal, reported in 1980 Supp SCC 420, had quoted

paragraph 18 of such judgment, wherein it has been, inter alia,

observed as follows:

"18. It was, therefore, submitted before us, relying upon Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal [1980 Supp SCC 420 : 1981 SCC (L&S) 309] that even in the absence of an express power of review, the Tribunal had the power to review its order if some illegality was pointed out. The submission must be rejected as misconceived. The submission does not take notice of the difference between a procedural review and a review on merits. This Court in Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal [1980 Supp SCC 420 : 1981 SCC (L&S) 309] clearly highlighted this distinction when it observed: (SCC p. 425, para 13) "Furthermore, different considerations arise on review. The expression 'review' is used in the two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the Court in Patel Narshi Thakershi case [(1971) 3 SCC 844 : AIR 1970 SC 1273] held that no review lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal."

15. From the aforesaid it would appear that when a party is

not heard or when the matter was heard and decided on a date

other than the date fixed for hearing, or under a mistaken

impression that the party had notice, although it had no notice

or the party could not attend, for no fault of his or any other

similar cases, the matter has to be reheard in accordance with

law without going into the merits of the order passed. In the

present case, the Tribunal did not take into consideration the

fact that the petitioners were otherwise prevented by sufficient

cause for not appearing before the Tribunal when the matter was

dismissed. This aspect was not taken into consideration by the

Tribunal at all while passing the order dated 6 th September,