Ganesh Chandra Guha vs The State Of West Bengal & Ors
2023 Latest Caselaw 906 Cal

             IN THE HIGH COURT AT CALCUTTA
                     Constitutional Writ Jurisdiction
                             Appellate Side

Present:
The Hon'ble Justice Raja Basu Chowdhury


                     W. P. A. No. 15380 of 2022

                     Ganesh Chandra Guha
                             Versus
                 The State of West Bengal & ors.



For the petitioner              :   Mr. Madhusudan Datta

For the respondent no.2         :   Mr. Soumya Majumder

Mr. Bhaskar Mukherjee.

Heard on                        :   15.12.2022

Judgement on                    :   03.02.2023




Raja Basu Chowdhury, J:

1. The present writ application has been filed challenging the

order dated 23rd March, 2022 passed by the 1st Labour Court in

Case No. 18 of 2017. The petitioner's case proceeded on the

premise that he had joined the service of the respondent no.2 in

the year 1971 as a stenographer and had retired from service on

and from 17th June, 1997. The petitioner claims that the

respondent no.2 had introduced a pension scheme for its

employees including the petitioner. In the petitioner's case

despite request since no pension was released, the petitioner

filed an application under Section 33(C)(2) of the Industrial

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

alia, praying therein for release of arrears of his pension as per

details provided in the said application. The said case was

registered as computation case no. 43 of 2001. On contested

hearing the learned 1st Labour Court was, inter alia, pleased to

dispose the said application by an order dated 28th February,

2011, inter alia, holding that the petitioner is entitled to a sum

of Rs. 5,56,994/- from the respondent no.2. Challenging the

aforesaid order, a writ application was filed before this Hon'ble

Court which was registered as WP No. 8266(W) of 2011. By

judgment and order dated 17th January, 2017 this Hon'ble

Court was, inter alia, pleased to uphold the order dated 28th

February, 2011 passed by the learned Labour Court. The

respondent no.2 has since complied with the aforesaid order

and has made payment of the arrears of pension as determined

in computation case no. 43 of 2001, pertaining to the period

from 1st September, 1990 to 1st September, 2000.

2. Since the entitlement to receive the pensionary benefit had

already been determined by the Labour Court in computation

case no. 43 of 2001 and despite the same, the respondent no.2

having failed to pay the pensionary benefit, for the period 2nd

September, 2000 and onwards, the petitioner filed another

application for recovery of his dues under Section 33 (C)(2) of

the said Act, which was registered as computation case no. 18

of 2017.

3. It is in connection with the aforesaid case that the petitioner

had filed his examination-in-chief on affidavit on 5 th July, 2018

and was partly cross-examined on 20th August, 2018. Cross-

examination, however, could not be completed on that date as

the respondent no.2 sought for an adjournment, which was

allowed and the next date of hearing was fixed on 9th October,

2018. Since the hearing was adjourned on 9th October 2018 the

matter was posted for further cross-examination on 4th

December, 2018.

4. On the adjourned date the petitioner was seriously ill, and bed

ridden and as such he sought for an adjournment by filing an

adjournment application. The learned Labour Court by order

no.15 dated 4th December, 2018 closed the evidence of the

petitioner. Following the aforesaid, the respondent no.2 filed an

application for expunging the evidence of the petitioner. Such

application was taken up for hearing on 13th December, 2019

and by order no. 23, the learned Court was, inter alia, pleased

to direct that such petition shall be heard and taken up for

consideration at the time of final arguments.

5. Incidentally, during the pandemic on 9th September, 2021 the

computation case filed by the petitioner was dismissed for non-

prosecution by order no. 35 dated 9 th September, 2021. The

recalling application filed by the petitioner on 21st December,

2021 was also dismissed on contest by order no. 40 dated 23 rd

March, 2022.

6. Challenging the aforesaid order, the present writ application has

been filed. After exchange of affidavits the matter had come up

for final hearing.

7. Mr. Datta learned advocate representing the petitioner

submitted that the petitioner had no control when the

computation case no. 18 of 2017 was dismissed. The dismissal

was affected during the pandemic when there was a resolution

adopted by the Bar Association, requesting the learned Judges

not to pass any adverse order. He says that learned judge while

deciding the application for recall, had gone into the question of

closure of evidence of the petitioner and had concluded that

recall of such order would not improve the petitioner's case.

This according to Mr. Datta was an irregularity in procedure

adopted by the learned judge.

8. He says if the learned judge intended to hear out the

computation case on merits, the learned judge ought to have

permitted the petitioner to present its case on the parent

application, which could have been done provided the order of

dismissal was recalled. The learned judge, however, while

deciding an application for recall, which was limited to the

question whether the petitioner had been able to show sufficient

cause for his non-appearance at the time of dismissal, had

embarked on an enquiry on the merits of the parent case,

without affording opportunity to the petitioner to address the

same.

9. It is submitted that the entitlement of the petitioner to receive

pensionary benefits, had already been decided in the previous

computation case, however, despite the aforesaid the

respondent no.2 having not released the pensionary benefits,

the petitioner was compelled to file the computation case. This

aspect was not considered by the learned judge.

10. The learned judge ought not to have concluded that

recalling of the order dated 9th September, 2021 would not

improve the case of the petitioner.

11. Mr. Datta further submitted that even if the cross-

examination is incomplete, the entirety of the evidence could not

be treated as inadmissible. In support of the aforesaid

proposition, he places reliance on the judgment delivered by this

Hon'ble Court in the case of Dever Park Builders Pvt. Ltd. and

Others. v. Smt. Madhuri Jalan and others.1

12. In the backdrop as aforesaid Mr. Datta prays that this

Hon'ble Court may be pleased to set aside the order dated 23rd

March, 2022, thereby restoring the original computation case

no. 18 of 2017 to its original number and file.

13. Per contra, Mr. Majumder learned advocate representing

the respondent no.2 submits that by an order dated 23rd March,

2022 the learned Court had in fact dismissed the matter on

merits and as such no interference is called for.

14. He says that the learned Court after careful scrutiny of

the matter has concluded that even if there are sufficient

grounds for recall, no purpose would be served in restoring the

matter. By, drawing attention of this Court to the order no.15,

dated 4th December 2018, he says that the PW1 has willfully

not subjected himself for cross-examination. The issues on

which PW1 has not been cross-examined are not only

contentious but the same are vital. He says that since the

application for restoration which otherwise had become

infructuous on account of failure on the part of the petitioner, to

Dever Park Builders Pvt. Ltd. and Others. v. Smt. Madhuri Jalan and others., AIR 2002 Cal 281

subject himself to be cross-examined, was rightly dismissed by

the learned judge. Mr. Majumder further submits that the

Labour Court does not have the power to recall its own order

and in support of such contention he places reliance on a

judgment delivered by the Hon'ble Supreme Court in the case of

Kapra Mazdoor Ekta Union v. Birla Cotton Spinning and Weaving

Mills Ltd. and Another.2 He says since Labour Court is not

invested with the power to recall or review its own order, no

relief can be afforded to the petitioner. He has also argued that

unless a relief is expressly prayed for and appropriate pleadings

are made no relief ought to be afforded to the petitioner and in

support thereof he has relied on a judgment delivered by the

Hon'ble Supreme Court in the case of Chandigarh

Administration v. Laxman Roller Flour Mills Pvt. Ltd. 3 He submits

that the writ application deserves to be dismissed and no

interference is called for.

15. Having heard the learned advocate appearing for the

respective parties and having considered the materials on

record, I find that the present application has been filed

challenging an order by which the learned 1st labour Court had

Kapra Mazdoor Ekta Union v. Birla Cotton Spinning and Weaving Mills Ltd. and Another., (2005) 13 SCC 777

Chandigarh Administration v. Laxman Roller Flour Mills Pvt. Ltd., (1998) 8 SCC 326

refused to recall its order, on the ground that recalling of the

order of dismissal for default, shall not improve the case of the

petitioner, who was applicant in the said proceedings. I find that

the order impugned arise out and in connection with the

computation case filed by the petitioner. The computation case

relates to a claim arising out and in connection with the claim

for payment of pensionary benefits. I find that the 1st Labour

Court, West Bengal by an order dated 28th February, 2011 had

already decided the entitlement of the petitioner to receive a

sum of Rs. 5,56,094/- in connection with a computation case

filed by the petitioner under Section 33(C)(2) of the said Act,

seeking computation of his claim, in monetary terms, dues to

him on account of pension. The respondent no.2 had challenged

the said order passed by the 1st Labour Court in a writ

application which was registered as WP 8266(W) of 2011. By

judgment and order dated 17th January, 2017 a coordinate

Bench of this Hon'ble Court while rejecting the challenge, was

inter alia, pleased to observe as follows:

"The Labour Court had rightly observed that since the company used to pay the premium, it must be for the benefit of the employees. On the contrary, the labour court had also rightly held against the company's firm stand that the respondent no.3 was not entitled to any pensionary benefit in accordance with the rules and regulations of the Pension

Scheme. If the company wanted to maintain the stand that the respondent no.3 had asked for the relief from the wrong person it ought not to have denied his right. In that case it should have taken a detached stand equidistant from both the private respondent as well as the Trust. After considering everything the Labour Court had rightly held that the company cannot deny its liability at this stage.

Thus, I find nothing to interfere with the judgment and order of the Labour Court.

The writ petition is devoid of merits and is dismissed."

16. It would, thus, be apparent that the Hon'ble Court had

not interfered with the finding given by the Labour Court

against the stand of the respondent no.2, as regards the

petitioner's entitlement for pensionary benefits in accordance

with rules and regulations of the pension scheme. There is no

challenge from the aforesaid order, on the contrary I have been

informed by the learned advocates appearing for the respective

parties that the said order has been accepted and complied with

by the respondent no.2.

17. I find that the present claim of the petitioner before the

Labour Court, in computation case no. 18 of 2017, arise out

and in connection with disbursal of pensionary benefits for the

subsequent period that is from 2nd September, 2000 till 31st

December, 2017. The petitioner had adduced evidence by filing

affidavit in chief. I find from the order-sheet that 12th July, 2018

was fixed for evidence of the petitioner. On that date the

petitioner was present in Court and had been waiting since

10.00 A.M. Unfortunately, the respondent no.2 chose not to

appear, and the matter was adjourned to 20th August, 2018.

Although the petitioner had filed his examination in chief by

way of an affidavit on 5th July, 2018, the documents were

tendered and marked as exhibits on 20th August 2018. Cross-

examination commenced, on the aforesaid date, however, the

same could not be completed since the respondent no.2 had

sought for an adjournment and the matter was adjourned and

fixed for further cross-examination on 4th October, 2018. The

petitioner who is more than 80 years old could not present

himself on the adjourned date and his evidence was closed.

Records, however, reveal that an adjournment application was

filed by the petitioner on the said date a copy whereof has been

marked as annexure P-3, to this application.

18. Although the respondent no.2 had taken out an

application for expunging the evidence of the petitioner the

same was not allowed and by order no. 23 dated 13 th December,

2019 the same kept in abeyance to be taken up for

consideration at the time of final arguments. Since, thereafter

the pandemic intervened and during the pandemic the

computation case no. 18 of 2017 was dismissed for non-

prosecution by order no. 35 dated 9th September, 2021.

19. I find that the application filed by the petitioner for

recalling the order dated 9th September, 2021 was contested by

the respondent no.2. On contested hearing the learned judge

while taking into consideration the factum of failure on the part

of the petitioner to present himself for further cross-

examination, concluded that recall of the order dated 9th

September, 2021 would not improve the petitioner's case and

hence rejected the application dated 21st December, 2021. It

would appear from the order-sheet as noted above, the issue

with regard to expunging the evidence of the petitioner had

never been taken up for consideration and was pending. This

aspect, in my view, was overlooking by the learned judge, while

dismissing the application dated 21st December, 2021. Since the

Court had already decided by an order no. 23 dated 13th

December, 2019 to keep the application filed by the respondent

no.2, for expunging the evidence of the petitioner in abeyance,

with a direction to have it adjudicated at the time of final

arguments, ought not to have ignored such order and opined

that recalling of the order dated 9th September, 2021, would not

improve the case of the petitioner.

20. In any event when the Court, is considering an

application for recall of an order, dismissing an application for

default, the Court is concerned with the sufficiency or

insufficiency of the grounds as regard non-appearance of the

party and his advocate on the date of dismissal.

21. Admittedly, the computation case had been dismissed for

non-prosecution. The learned Court in my opinion also while

considering the application dated 21st December, 2021 ought to

have confined its enquiry, as to whether the petitioner had been

able to make out sufficient cause for his non-appearance when

the application was dismissed. In this case the learned Court

had exceeded its jurisdiction in taking into consideration

whether recalling such order would improve the case of the

petitioner. In my view, such finding rendered by the learned

Court is perverse on the face of it and is liable to be set aside.

22. The issue whether the evidence led by the petitioner

requires to be expunged or not has to be adjudicated. When

such an issue is yet to be adjudicated, in my view, without

adjudicating the same the learned judge ought not to have

rendered his opinion that without cross-examination, the

incomplete evidence adduced by the petitioner cannot be

considered and accepted. In my view, such stage has not come.

23. Mr. Majumder, however, by placing reliance on the

judgment delivered in the case of Kapra Mazdoor Ekta Union v.

Birla Cotton Spinning and Weaving Mills Ltd. and Another

(Supra)4 has attempted to make out a case that the Tribunal has

no inherent power to recall or review its order in absence of

statutory provision. I find that the Hon'ble Supreme Court in

the aforesaid judgment in paragraphs 15 and 16 was, inter alia,

pleased to observe as follows:

"15. We shall first take up the second question namely whether the Tribunal was functus officio having earlier made an award which was published by the appropriate Government. It is not in dispute that the award was made on 12-6-1987 and was published in the gazette on 10-8-1987. The application for recall was made on 7-9-1987. Under sub-section (1) of Section 17-A of the Act an award becomes enforceable on the expiry of 30 days from the date of its publication under Section 17 of the Act. Thus the award would have become enforceable with effect from 9-9-1987. However, the application for recalling the award was made on 7-

9-1987 i.e. 2 days before the award would have become enforceable in terms of sub-section (1) of Section 17-A of the Act. The High Court rightly took the view that since the application for recall of the order was made before the award had become

Kapra Mazdoor Ekta Union v. Birla Cotton Spinning and Weaving Mills Ltd. and Another., (2005) 13 SCC 777

enforceable, the Tribunal had not become functus officio and had jurisdiction to entertain the application for recall. This view also finds support from the judgment of this Court in Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal [1980 Supp SCC 420 : 1981 SCC (L&S) 309] . This Court after noticing the provisions of sub-section (3) of Section 20 of the Act which provides that the proceedings before the Tribunal would be deemed to continue till the date on which the award becomes enforceable under Section 17-A, held that till the award becomes enforceable the Tribunal retains jurisdiction over the dispute referred to it for adjudication, and up to that date it has the power to entertain the application in connection with such dispute. The jurisdiction of the Tribunal had to be seen on the date of the application made to it and not the date on which it passed the impugned order. The judgment in Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal [1980 Supp SCC 420 : 1981 SCC (L&S) 309] has been reiterated by this Court in Satnam Verma v. Union of India [1984 Supp SCC 712 : 1985 SCC (L&S) 362] , J.K. Synthetics Ltd. v. CCE [(1996) 6 SCC 92] and M.P. Electricity Board v. Hariram [(2004) 8 SCC 246 : 2004 SCC (L&S) 1092 : JT (2004) 8 SC 98] .

16. In the instant case as well we find that as on 7- 9-1987 the award had not become enforceable, therefore, on that date the Tribunal had jurisdiction over the disputes referred to it for adjudication. Consequently it had the power to entertain an

application in connection with such dispute. The order of recall passed by the Tribunal on 19-2-1990, therefore, cannot be assailed on the ground that the Tribunal had become functus officio."

24. As would appear from the above the Hon'ble Supreme

Court in the aforesaid case was considering the impact of

Section 17A of the said Act. The Hon'ble Supreme Court had

held that consequent upon publication of an award and on the

expiry of 30 days from the date of publication thereof under

Section 17 of the said Act, an award becomes enforceable and

thereafter it is no longer open to the Tribunal to review or recall

the award as the Tribunal becomes functus officio. The aforesaid

judgment, I am afraid does not assist the petitioner. The order

dated 9th September, 2021 is not an award nor has the same

been published under Section 17 of the said Act. It is no bodies

case that the said order had been published as an award under

Section 17 of the said Act. The aforesaid judgment is not an

authority for the proposition that a Tribunal/Labour Court

cannot recall its order of dismissal. In fact, in paragraphs 18

and 19 of the aforesaid judgment the Hon'ble Supreme Court

while distinguishing between procedural review and review on

merits, has quoted with approval the view the view taken by the

Hon'ble Supreme Court in the case of Grindlays Bank Ltd. v.

Central Govt Industrial Tribunal., and had 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."

19. Applying these principles it is apparent that where a court or quasi-judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the court or the quasi-judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the court or quasi-judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits (sic ascertains whether it has committed) a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the court or quasi-judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the court or the quasi-judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch as the opposite party concerned was not

heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be reheard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd.v. Central Govt. Industrial Tribunal [1980 Supp SCC 420 : 1981 SCC (L&S) 309] it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be reheard and decided again."

25. I find that the petitioner while seeking recall of the order

dated 9th September 2021, did not seek review of the order on

merits, nor did the Labour Court dismiss the computation case

on merits. The petitioner's advocate was absent on 9th

September 2021 due to illness, as such the petitioner cannot be

faulted on the ground of nonappearance of his advocate.

Further the matter was dismissed during the pandemic. As

such the petitioner was prevented by sufficient cause for his

non-appearance on the date of dismissal. This aspect was also

overlooked while dismissing the computation application. The

power to recall an order dismissed for default or procedural

irregularity is inherent in every court and Tribunal. The

objections thus raised by Mr. Majumdar are unmeritorious and

the same cannot be sustained.

26. It has, also, been strenuously argued on behalf of Mr.

Majumder that unless the petitioner prays for recall of the order

dated 9th September, 2022 in the writ application, this Court

ought not to recall the same and restore the original

computation case. In support of his contention that unless a

relief is expressly prayed for and appropriate pleadings are

made no relief ought to be afforded to the petitioner, he has

placed reliance on the judgment delivered by the Hon'ble

Supreme Court in the case of Chandigarh Administration

(supra)5. I am, however, unable to accept such contention of Mr.

Majumder. Once the rejection of an application seeking recall of

the order dated 9th September, 2022 is set aside, this Court is

competent to restore the original computation application to its

original number and file. In any event a specific prayer seeking

restoration of the case no.18 of 2017 has been made in the writ

application. In the light of the above and observations made

herein, I am of the view that the judgment relied on by Mr.

Chandigarh Administration v. Laxman Roller Flour Mills Pvt. Ltd., (1998) 8 SCC 326

Majumder in the case of Chandigarh Administration (supra)6 has

no bearing in the facts of the instant case and does not assist

the respondent no.2.

27. For reasons morefully discussed hereinabove the order

dated 23rd March, 2022 cannot be sustained and is accordingly

set aside. In view thereof, the computation case no. 18 of 2017

is restored to its original number and file by recalling the order

of dismissal and considering the advanced age of the petitioner

it is expected that the learned Court shall hear out and dispose

of the said Computation Case no.18 of 2017, as expeditiously as

possible, preferably within a period of 6 months from the date of

communication of this order without giving unnecessary

adjournment to the parties.

28. The writ application is accordingly disposed of.

29. There shall be no order as to costs.

30. Urgent certified Photostat copy of this order if applied for be

made over to the parties upon compliance of all formalities.

(Raja Basu Chowdhury, J.)

Chandigarh Administration v. Laxman Roller Flour Mills Pvt. Ltd., (1998) 8 SCC 326