Calcutta High Court (Appellete Side)
(Sl 2) vs (S. Banerjee) The State Of West Bengal & ... on 13 November, 2017
1
Court No. 32 W. P. No. 26860(W) of 2017
13.11.2017
M/s. Budge Budge Company Limited
(SL 2) Vs.
(S. Banerjee) The State of West Bengal & Ors.
Mr. Arabinda Chatterjee, Ld. Sr. Advocate
Mr. Balai Chandra Paul, Ld. Advocate
Ms. Ruma Sarkar, Ld. Advocate
... for the petitioner
Mr. Susanta Pal, Ld. Advocate
Mr. Prabir Kumar Ray, Ld. Advocate
... for the State
Mr. Rananeesh Guha Thakurta, Ld. Advocate
Mr. S. Sengupta, Ld. Advocate
Mr. N. R. Laskar, Ld. Advocate
... for the respondent no. 3
Let the affidavit-of-service filed in court today be kept with the record.
Heard Mr. Chatterjee, the learned senior counsel for the petitioner, and Mr. Guhathakurta, learned advocate for the respondent no. 3.
The petitioner has assailed orders dated May 16, 2017 and July 26, 2017 passed by the Controlling Authority under the Payment of Gratuity Act (The act, for short). By the first order the petitioner's prayer for filing the written statement to the application for Gratuity by the respondent no. 3 had been rejected by the Controlling Authority, i.e., the respondent no. 2.
The petitioner had taken out an application for review which was the occasion for passing the second impugned order, again rejecting the petitioner's application for review.
Before I proceed to consider the merits of this writ petition it is necessary to mention that in an earlier round of litigation the petitioners had challenged an order dated March 22, 2017 by which the respondent no. 2 had rejected the writ petitioner's application for deciding the maintainability of the application filed before the 2 respondent no. 2. While recording that the order so passed was not a very happy one the court directed the respondent no. 2 to address himself to the point of fact and the point of law raised by the writ petitioner that the respondent no. 3 herein was not entitled to the amount of Gratuity during the period he worked as a Badli worker before his superannuation.
Mr. Chatterjee expresses his grievance that the order of the court has been totally violated by the respondent no. 2 inasmuch as he had proceeded to deal with the application without first deciding the preliminary issue which is said to be the order of the court.
I am afraid, such was never the direction that this issue should be decided as a preliminary issue. It was specifically directed in the earlier order dated August 10, 2017 that while 'disposing of the application' the respondent no. 2 shall consider certain things. The stage of disposal of the application comes only after all the stages are over. As such I do not find anything to complain that this court's earlier order had been defied by the respondent no. 2.
That, however, is not the main subject-matter of the writ petition. The subject-matter is the two orders by which the petitioner's applications for filing the written statement had been rejected by the respondent no. 2. Both the orders impugned in the present writ petition were passed before this court had disposed of the earlier writ petition. The petitioner did not draw the court's attention about the passing of these two orders earlier which, if mentioned, could be taken care of at an earlier stage. They must have kept it under their sleeves to challenge it by way of a separate writ petition dragging a superannuated employee again to the court by initiating multifarious legal proceedings. It is not the case of the petitioner that it was not aware of this order and the same also is not reflected from the writ petition as well or the orders themselves. While I am keenly aware that the earlier writ petition was directed against an order dated March 22, 2017 I find no justifiable reason for the petitioner's not disclosing it to the 3 court when the earlier writ petition was disposed of. They could also filed a supplementary affidavit annexing thereto the orders passed, or at least mentioning the gist of the orders.
While disposing of the earlier writ petition the court had expressed its expectation that the respondent no. 2 would dispose of the matter as early as possible without granting any adjournment, unless absolutely necessary. The court expressed such direction in the form of an expectation as it was not informed by the petitioner about the steps taken by the respondent no. 2. It appears from the orders impugned that the controlling authority had recorded reasons for not extending further time to the petitioner for filing the written statement. The order is very clear that sufficient opportunity was granted to the petitioner for filing written statement and the court even granted a last chance to them to file the same. Even after the expiry of the last chance a special last chance was allowed to the petitioner to file the written statement. The petitioner failed to avail itself of that too and to comply with the order of the Controlling Authority.
The Controlling Authority has rightly relied on Rule 11(5) of the West Bengal Payment of Gratuity Rules, 1973 which inter alia says that if the employer fails to appear on the specified date of hearing without sufficient ground he may proceed to hear and determine the application ex parte.
The respondent no. 2 had resorted to this provision after giving the petitioner more than sufficient opportunities for filing the written statement. Mr. Chatterjee tried to impress upon the court that sufficient opportunities were not given by the respondent no. 2 inasmuch as such opportunity was given for the first time by an order dated April 11, 2017. Even if that be so, there were undoubtedly several opportunities were given otherwise there would not have been any question of recording the special last chance in the first order of the respondent no. 2. Again while disposing of the application for review the respondent no. 2 had specifically mentioned 4 that the company was offered ample opportunities to file the written statement but it failed to avail itself of that. I quite agree with the order that the company would not be given any further chance to file written statement as that would be denial of justice of the applicant workman.
It just cannot be that an ex-employer company shall not avail itself of several opportunities to file their written statement and will come up with series of applications by initiating various legal proceedings by not disclosing the orders passed earlier to the court at the time of disposal of the first writ petition that further opportunity should be extended to them to file the written statement. Moreover, it appears from the order-sheets annexed to the writ petition that several adjournments were taken by the company, even on such flimsy ground as the non-delivery of the certified copy of the earlier order which merely recorded that the company had filed an application along with a copy of the order of the earlier writ petition. The prayer undoubtedly was rightly rejected, but it also brought out the very effort on the part of the writ petitioner company to procrastinate the proceeding before the respondent no. 2.
The direction for starting the cross-examination was given as early as on July 26, 2017 fixing August 8, 2017 as the date for such cross-examination. I regret to note that even that information was not shared with the court at the time of disposing of the earlier writ petition.
Now the cross-examination has started. After that the petitioner has filed this application on November 3, 2017 and a make-believe urgency was sought to be projected that the next date of cross-examination was fixed on November 10, 2017. By this writ petition the petitioner company wishes to file its written statement when it did not avail itself of the opportunities so given earlier and when the cross-examination had started. Allowing the writ petition or passing any order in favour of the petitioner in terms of the prayer made therein at this stage would not only cause serious prejudice to the respondent no. 3 but also will be subversion of all settled principles of law and setting a very bad precedent that a recalcitrant employer, 5 not willing to allow the respondent no. 2 conclude the proceedings, are coming to the court on one plea or the other including such practically absurd prayer.
I not only find no merit in the writ petition, I find filing of such a writ petition is an abuse of the process of the court. Every litigant has most certainly a right to approach the court; but repeatedly invoking the jurisdiction of the court with piecemeal prayer and half disclosed facts is certainly thing which the court must depricate.
The writ petition is dismissed.
But considering what has been stated above the writ petition should be dismissed with costs which is assessed at Rs. 10,000/-. Such amount is to be paid to the respondent no. 3 positively within a period of 10 days. In default, the respondent no. 3 shall be entitled to recover the same from the petitioner in accordance with law.
The controlling authority is directed to proceed with the application of the respondent no. 3 in accordance with law and to dispose of the same as expeditiously as possible without granting any adjournment, unless of course it is absolutely necessary.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of requisite formalities.
(Dr. Sambuddha Chakrabarti, J.)