Amara Badyakar @ Angura Badyakar vs M/S. Eastern Coal Fields Limited & ...
2023 Latest Caselaw 1876 Cal/2

OD-2                           ORDER SHEET

                           WPO 3364 of 2022
                   IN THE HIGH COURT AT CALCUTTA
                  CONSTITUTIONAL WRIT JURISDICTION
                            ORIGINAL SIDE


                  AMARA BADYAKAR @ ANGURA BADYAKAR
                                 VS.
                 M/S. EASTERN COAL FIELDS LIMITED & ORS.


BEFORE:
The Hon'ble JUSTICE LAPITA BANERJI
Date: 4th August, 2023.


                     Mr. Partha Ghosh, Mr. Amal Kumar Datta, Ms. Simran Sureka, Mr.
                                            Debashis Das, Advocates for the petitioner.

                                Mrs. Priti Banerjee, Advocate for respondent nos.1 to 7.

Mr. Kallol Guha Thakurata, Md. Wasim Rahaman, Advocates for respondent no.8.

The Court : In the present writ petition, the petitioner has prayed for

release of provident fund dues and pensionary dues of her husband with

effect from the date of death on September 21, 2006. The petitioner's

husband was an employee of the Eastern Coalfields Limited (ECL). He died

in harness on September 21, 2006. The petitioner's grievance is that despite

repeated representations before the authorities concerned, the prayers of

the petitioner for payment of provident fund dues and pensionary dues have

not been released in her favour, even though the petitioner has been given

the gratuity dues and the benefits under the Life Cover Scheme (LCS). The

petitioner also has been granted appointment on compassionate ground as

famale dependent of her husband.

Mr. Ghosh, learned Counsel appears in support of the petitioner. Mrs.

Banerjee, learned Counsel appears in favour of the ECL and submits that

the seat of the respondent authorities is outside the territorial jurisdiction

of the Original Side of this Hon'ble Court. Therefore, this writ petition has

been wrongly filed on the Original Side of this Hon'ble Court.

She further submits that no part of cause of action has arisen within

the territorial jurisdiction of the Original Side of this High Court. Therefore,

the writ petition is not maintainable on the Original Side of this Hon'ble

Court.

She refers to a judgment dated February 11, 2021 passed by a Co-

ordinate Bench of this Hon'ble Court. Relying on the judgment in WPO 119

of 2020 (Susmita Gayen Vs. The State of West Bengal & Others) she

contends that the present writ petition should have been filed on the

Appellate Side of the Hon'ble High Court.

Mr. Ghosh, learned Counsel appearing on behalf of the petitioner

refers to paragraph VIII of the said judgment and submits that the Co-

ordinate Bench has held when a writ petition/application runs afoul of

Rules 4, 5 and 7 of the 1986 Writ Rules still the Hon'ble Writ Court can

either transfer the writ petition from one administrative side to the other by

giving necessary directions to the Registry and irregular filing of a writ

petition either on the Original Side or the Appellate Side would not preclude

the Writ Court from entertaining any matter on the ground of urgency or

any other ground which the learned Judge upon application of mind and

discretion may deem it fit. Furthermore, the attention of this Court is drawn

to the decision of the Division Bench of this Hon'ble Court passed in APOT

49 of 2019 (M/s. Eastern Coalfields Ltd. & Ors. Vs. Premlata Devi &

Ors.) and also APOT 349 of 2013 (Mrs. Ila Chakraborty Vs. The State of

West Bengal & Ors).

By an earlier order dated February 17, 2023 passed in WPO 3354 of

2022 (Bodi Mejhain Vs. M/s. Eastern Coal Fields Ltd And Ors.) this

Court placed reliance on the decision passed by the Hon'ble Division Bench

in Premlata Devi (supra) to come to the finding that a writ petition is

maintainable, whether filed on the Appellate Side or the Original Side, as

long as the seat of the offending party and/or part of cause of action arose

within the jurisdiction of the High Court. Filing of a writ petition either in

the Appellate Side or in the Original Side is a matter of administrative

convenience only.

By an order dated January 6, 2020, passed by the Hon'ble Apex Court

the Special Leave Petition filed by ECL in Premlata Devi (supra) was also

dismissed.

Mrs. Banerjee relied on a decision passed in Special Leave to Appeal

(C) Nos.7455-7456/2023 (Career Institute Educational Society Vs. Om

Shree Thakurji Educational Society) to draw the distinction between

obiter dicta and ratio decidendi in a judgment. She submits that even if a

conclusion is made on facts it may not operate as a precedent if not the

ratio of a case, though the same may operate as a res judicata. Everything

stated in a judgment by an Hon'ble Judge cannot constitute a precedent.

In Premlata Devi (supra) and Ila Chakraborty (supra) arguments

regarding the maintainability of the writ petitions were raised and the same

were answered. The submissions made by the authorities that the Writ

Court lacks territorial jurisdiction to entertain the writ petition in the

Original Side have been specifically rejected. The allocation of the writ

petitions on either of the sides is only for administrative convenience, so

that the matters may be disposed of expeditiously.

There is no dispute with regard to the fact that all the

observations/findings made in a judgment do not tantamount to ratio

decidendi. However, when the arguments advanced on behalf of either of the

parties are considered and rejected/accepted on a point of law or procedural

issue then the same has to be taken to be a binding precedent following the

principles of Judicial Comity.

In fact, Mrs. Banerjee invited this Court to rely upon the judgment

passed by the Co-ordinate Bench in WPO 119 of 2020 following the

principles of Judicial Comity. Why the judgment delivered by the Hon'ble

Co-ordinate Bench will be a binding precedent and the directions passed by

the Hon'ble Division Benches will not be considered to be binding

precedents has not been specifically addressed. In the Hon'ble Division

Bench's judgment reported in (1986) 1 CHN 169 (University of Calcutta V.

Subrata Mukhopadhyay) after detailed discussion it has been clearly held

that whether a particular writ application is dealt within the Original Side or

the Appellate Side of this Court pertains to distribution business of the

Court and the Rules.

Jurisdiction of this Court under Article 226 of the Constitution of

India is not at all dependent on any subsidiary rules. It is exercisable under

the Court's Constitutional power. Such Constitutional right of a litigant

cannot be frustrated merely because of the subsidiary Rules of the High

Court.

Article 226(2) of the Constitution is set out below :

" The power conferred by clause (1) to issue directions, orders or writs

to any Government, authority or person may also be exercised by any

High Court exercising jurisdiction in relation to the territories within

which the cause of action, wholly or in part, arises for the exercise of

such power, notwithstanding that the seat of such Government or

authority or the residence of such person is not within those territories."

The question of maintainability of the writ petition is totally unrelated

to the procedural/subsidiary Rules of the High Court. Procedure is only a

handmaid of justice as held in (1976) 1 SCC 719 (The State of Punjab and

Another V. Shamlal Murari & Another). Processual Law is not a tyrant but

a servant, not an obstruction but aid to justice. Procedural law is a

"handmaid" and not the "mistress", in the administration of justice.

In such view of the matter, this Court finds no substance in the

argument that the present writ petition can only be entertained in the

Appellate Side jurisdiction of this Hon'ble Court.

Also on the facts of the instant writ petition whereby the petitioner's

dues have been kept pending since the death of her husband on September

21, 2006 by the authorities, this Court finds immediate urgency in taking

up such a matter. There is no reason why this Court should delay further

hearing of the matter since the ground of maintainability of the writ petition

in the Original Side of this Hon'ble Court has been raised.

No useful purpose will be served by directing the Registry to convert

this writ petition into writ petition filed on the Appellate Side since both the

Original Side as well as the Appellate Side jurisdiction under Group-VI have

been placed by the Hon'ble Chief Justice, by way of roster before this Court.

On merits of the writ petition, Mrs. Banerjee submits that there is a

dispute between the names of Amara Badyakar and Angura Badyakar, wife

of late Sanjib Badyakar, residing at Sorpi Kendua, Badyakar Para, P.O. -

Sorpi, District - Paschim Burdwan, Pin Code - 713363 since they are

different persons residing at different addresses with different voter identity

cards and bank account details.

In view of such submission, this Court finds it necessary that the

issue with regard to the identity of the writ petitioner has to be settled once

and for all.

The learned Advocate appearing on behalf of the writ petitioner is

permitted to bring the learned District Magistrate, Paschim Burdwan on

record as a party respondent. Leave is given to make necessary

amendments to the cause title.

Learned District Magistrate shall cause an enquiry through the

Commissioner of Police, Asansole, Durgapur regarding the identity of the

petitioner. The issue that needs to be addressed is whether the said Amara

Badyakar and Angura Badyakar are one and the same person.

Registry is directed to serve a copy of this order on the learned

District Magistrate, Paschim Burdwan. The learned District Magistrate is

directed to file a report before the learned Registrar, Original Side in a

sealed envelope by September 8, 2023.

Let the matter appear for further consideration under the same

heading "Court Application" on September 15, 2023.

All parties are to act on a server copy of downloaded from the official

website of this Hon'ble Court.

Urgent certified website copies of this order, if applied for, be made

available to the parties subject to compliance with all requisite formalities.

(LAPITA BANERJI, J.)

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