Calcutta High Court
Amara Badyakar @ Angura Badyakar vs M/S. Eastern Coal Fields Limited & Ors on 4 August, 2023
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. 2 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 & 3 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 4 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.
5
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 6 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 7 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.) pa/skc