Calcutta High Court
The Calcutta Tram Mazdoor Sabha vs State Of West Bengal & Ors on 20 March, 2009
Author: Dipankar Datta
Bench: Dipankar Datta
W.P. No.888 of 2008
with
G.A. 4017 of 2008
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURSIDICTION
ORIGINAL SIDE
Present : The Hon'ble Justice Dipankar Datta
The Calcutta Tram Mazdoor Sabha
...Petitioner
Vs.
State of West Bengal & ors.
...Respondents
Mr. Saptangshu Basu ...for the petitioner Mr. M.C. Bhattacharjee ...for the respondents 3 to 5 Heard on : 13.03.2009 Judgment on : 20.03.2009 The petitioner is a registered Trade Union. It has been espousing the causes of workers/employees of the Calcutta Tramways Company (1978) Limited (hereafter the Company).
This is the second round of litigation. It had the occasion to invoke the writ jurisdiction of this Court earlier. A grievance was ventilated with regard to non- payment of salaries and allowances together with arrears to the members of the petitioner/Union under different heads. Since in course of hearing it transpired that the Company had already taken steps for making payment of salary as well as arrears, the Court considered the claim of the petitioner/Union for interest on the delayed payments. By judgment dated 16.4.2008, the Court unhesitatingly held that the members of the petitioner/Union are entitled to receive interest. The writ petition was disposed of with the following directions:
"The members of the writ petitioner/union are directed to submit representation with detailed break ups and the actual amount of interest that has accrued in their favour-separately and individually before the respondent CTC Authority within a period of four weeks from this date. Upon receipt of the said representations, the CTC Authority must consider the matter in their proper perspective and must initiate proper action in order to ensure payment of the said amount. The entire process must be completed within a period of four months from the date of receipt of the representation. It is for the CTC Authority to take up the matter with the concerned department of the State respondent and it is for the said CTC Authority to take appropriate action for obtaining the necessary fund".
After the order was passed disposing of the writ petition, the members of the petitioner/Union attempted to make representations in terms of the liberty granted. However, in the absence of necessary information, they faced difficulty in giving detailed break-up of their claim and in computing actual amount of interest that had accrued in their favour. This prompted the General Secretary of the petitioner/Union to write to the Managing Director of the Company on 30.4.2008 requesting him to furnish list of individual payments of arrears to enable its members file appropriate representations.
The Managing Director of the Company responded to this letter by his writing dated 6.5.2008. It reads as follows:
"With reference to your letter No. Nil dated 30.4.2008, I am to intimate you to please act strictly as per verdict of the Hon'ble Calcutta High Court dated 16.4.2008".
The petitioner/Union has now approached this Court ventilating the grievance that in the absence of details of payments made to each of its member employees, calculation of the interest receivable with break ups cannot be made and since the Company is the custodian of the relevant records such information could only be provided by it. In the circumstances, the following relief has been claimed:
"a) writ in the nature of Mandamus commanding the respondents to give the particulars of papment of arrear of each and every entitled employee of the respondent authority forthwith to enable the petitioner to comply the Hon'ble Court's order dated 16th April 2008 passed in W.P. No.910 of 2006;
b) Writ in the nature of Mandamus commanding the respondent to withdraw/cancel/rescind the letter being the Annexure No.P-6 of this instant application;
c) Writ in terms of Certiorari directing the respondents to produce all records relating to the present case so that upon perusal of the same conscionable justice may be rendered to the employees of the Calcutta Tramways Company (1978) Ltd".
Mr. Basu, learned Counsel appearing for the petitioner/Union, contended that its majority members are mazdoors and other lowly paid staff. Payments have been received by them on account of salaries as well as arrears in cash and, therefore, they have no record with them in respect of payments received. As such it is absolutely impossible for them to submit individual representations before the Company in terms of the Court's order dated 16.4.2008 giving the detailed break up as well as actual amount of interest that has accrued. He, accordingly, prayed for a direction on the Company to provide information regarding payment of salaries and arrears to the members of the petitioner/Union within such time as may be fixed by this Court in its discretion so as to enable them file appropriate representations claiming interest.
Answering to a query of Court Mr. Basu submitted that the writ petition is founded on a fresh cause of action inasmuch as the Managing Director of the Company has refused to part with information that is available with him and, therefore, the present petition is well-nigh maintainable.
The petition has been opposed by Mr. Bhattacharjee, learned Counsel appearing for the Company. According to him, the writ petition is not maintainable since no legal right of the members of the petitioner/Union has been infringed. He contended that the petitioner/Union has accepted the order of this Court dated 16.4.2008 by not preferring any appeal or review and, therefore, such order attained finality. A second writ petition, according to him, on the self-same cause of action is not maintainable and the petitioner/Union has abused the process of law. In particular, he referred to the grounds of the writ petition to contend that not a single ground has been urged in support of the stand that a fresh cause of action has arisen for moving it. He submitted that the petitioner/Union without filing any application for review of the order dated 16.4.2008 seeks to obtain a modification thereof by filing the present petition and the issues that have been decided by the Court cannot be reopened.
By referring to the application for interim order, he contended that the petitioner/Union has now prayed for extension of time to file representations and, therefore, the claim made in the writ petition does not survive.
He, accordingly, prayed for dismissal of the writ petition as well as the application.
In reply, Mr. Basu contended that this Court on interpretation of the earlier order would be justified in granting relief to the petitioner/Union which has espoused the cause of its poor members. Referring to the application for interim order, he contended that the contents thereof would only show that some of the members of the petitioner/Union have since obtained information regarding the detailed break ups which are required to be given and the actual amount of interest that has accrued and since time for filing representations in terms of the order dated 16.4.2008 has expired, a prayer has been made for extension of time in so far as those employees are concerned.
This Court has heard learned Counsel for the parties. There appears to be some substance in the contention of Mr. Bhattacharjee that the order dated 16.4.2008 having attained finality, a second writ petition for modification of such order would not be maintainable. However, this Court is not inclined to refuse relief to the members of the petitioner/Union on such technical ground. That the members of the petitioner/Union are entitled to interest has been decided by this Court in their favour and against the Company. The Court granted liberty to the members of the petitioner/Union to file representations for claiming interest. The petitioner/Union has now ventilated a grievance that in the absence of relevant information, appropriate representations cannot be filed. It has been admitted by Mr. Bhattacharjee, on instructions, that payments of salaries and arrears to the members of the petitioner/Union were made in cash. It is further not disputed that the petitioner/Union is espousing the cause of the lowly paid employees of the Company.
In Lily Thomas vs. Union of India reported in (2000) 6 SCC 224, the Supreme Court observed "justice is a virtue which transcends all barriers and the rules of procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice."
Reference in this connection may also be made to the decision in Jeypore Sugar Co. Ltd. vs. Sales Tax Officer & ors., reported in (1998) 9 SCC 358 wherein the Supreme Court found it just and proper not to deny relief to the appellant which was otherwise due on the ground that the plea which had been taken before it could have been advanced earlier as well but merely because it was not advanced it should not be a ground to deny relief which is otherwise due. The technical plea of constructive res judicata, it was further held, should not stand in the way of the appellant in a case of the present nature.
This Court previously had directed filing of representations by the members of the petitioner/Union individually giving particulars of their claims. The particulars are wanting and, therefore, the terms of the order dated 16.4.2008 cannot be worked out. Should the Court refuse relief only on a technical ground that this plea should have been taken by the petitioner/Union in the earlier round of litigation and not having so taken, it should be disallowed from taking such plea here? This Court is of the considered view that the answer ought to be in the negative. In a case of the present nature, technical objections ought not to stand in the path of dispensing justice. Being the head of the organisation, the Managing Director of the Company ought to realize that the employees look at him as a father figure. Refusal to furnish information on technical grounds does not behove the high and enviable office he holds.
In the circumstances, the writ petition succeeds. The members of the petitioner/Union are granted liberty to make a request individually to the Company seeking information regarding details of payment received by them for which the earlier writ petition was moved. Within four weeks from date of receipt thereof, the Company shall proceed to furnish the required information. The members of the petitioner/Union shall then have a further time of a fortnight to file appropriate representations claiming interest on delayed payment of benefits. The Company shall have a further period of 12 weeks time from date of receipt of representations individually from the members of the petitioner/Union to consider the same and effect payment according to law.
Such of the members of the petitioner/Union who have since obtained information regarding their entitlements shall also have liberty to file appropriate representations before the Company within a fortnight from date and if such representations are received, the same shall be considered and disposed of in the manner and time mentioned in the preceding paragraph.
In view of the aforesaid directions, G.A. 4087 of 2008 stands disposed of accordingly.
There shall be no order for costs.
Urgent photostat certified copy of this judgment, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefor.
(DIPANKAR DATTA, J.)