Calcutta High Court (Appellete Side)
Senbo Engineering Limited & Anr vs The State Of West Bengal & Ors on 6 May, 2016
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
1
.05.16
299
ab
W.P. 27285(W)_of 2015
Senbo Engineering Limited & Anr.
-Vs-
The State of West Bengal & Ors.
Mr. Soumya Majumder,
Mr. Niloy Sengupta,
... for the petitioners
Mr. Siddhartha Banerjee,
Mr. Kushal Chatterjee,
... for the respondent No. 6
Mr. Susanta Pal, ... for the State respondents Even if seeking more than one relief by way of either abundant pre-caution or alternative remedy is not very unknown in law, forum shopping or maintaining simultaneous proceeding is not also a part of unknown experience.
The case in hand provides a classic example of a mind uncertain to find out the appropriate remedy, but very certain that the order of the Controlling Authority in favour of the respondent No. 6 should be blocked, or at least all avenues must be explored before the said respondent may be permitted to get any benefit of the order.
2The respondent No. 6 was an employee of the petitioner No. 1 company who worked for a number of years. After the termination of his service, he had to take out an application to the Controlling Authority under the Payment of Gratuity Act as the former employer was not willing to shell out the gratuity payable to him. The Controlling Authority by an order dated November 18, 2013 allowed the application of the respondent No. 6 and directed the petitioner No. 1 to pay a sum of Rs. 90,000/- towards gratuity and Rs. 29,250/- by way of simple interest within 30 days from the date of receipt of the direction.
The petitioners thereafter resorted to various proceedings, either successively or simultaneously. The order was challenged by way of a writ petition. The writ petition was dismissed giving liberty to the petitioners to file a statutory appeal. Thereafter, they filed an appeal. Subsequently, on the application of the respondent No. 6, the Certificate Officer issued a certificate and against that, they decided to file the present writ petition.
Mr. Majumder, the learned advocate appearing for the petitioners is all very aggrieved by the conclusion of the proceeding by the Controlling Authority without giving them any appropriate opportunity of being heard. According to him, the date on which the hearing was fixed fell on Muharram and, therefore, the petitioners could not appear.
If that be so, the petitioners have already taken out an application for review before the Controlling Authority and that has been dismissed. They filed a 3 statutory appeal. The petitioners have not mentioned anything about stage the appeal stands and the steps they had taken for expediting the process of the appeal, if at all. On the contrary, there are statements in the writ petition blaming the office of the appellate authority for not getting the petitioners informed about the hearing of the appeal. The writ petition is silent about the steps taken by the petitioners for the hearing of the appeal, particularly when the respondent No. 6 had filed an application for a certificate.
The Controlling Authority in the order impugned has given in details the opportunities which were given to the petitioners for contesting the application. On successive dates they remained absent. They filed a written statement very belatedly. It has also been recorded that the petitioners herein failed and neglected to cross-examine the applicant in spite of being afforded ample opportunities. The impression that the Controlling Authority formed was that the petitioners were seeking to procrastinate the proceeding unnecessarily making it difficult for the effective progress of the matter.
It may be mentioned that in the memorandum of appeal, the petitioners did not mention the confusion of date due to Muharram as has been sought to be made in the present writ petition. It has been alleged that the Controlling Authority had closed the hearing without giving any opportunity to adduce further evidence to the petitioners. A still more surprise really awaits a sincere follower of events in the application for condonation of delay in filing the statutory appeal, the stand of the petitioner No. 1 company was that they could 4 not appear before the forum due to unavoidable circumstances. If that had been the real cause, one wonders why such vague expression was used. If I look at the subsequent conduct of the petitioners with regard to the carriage of proceeding is not very promising. If the petitioners had missed the date, they waited till the end of December, 2013 when they allegedly went to enquire about the next date.
I for one do not find any reason for the petitioners to file the present writ petition. At least it is not very clear from the petition itself what prompted them to invoke the writ jurisdiction of the Court from which order of the authorities had left them dissatisfied. The preamble to the grounds justifying the filing of the writ petition mentions that the petitioners were aggrieved by the 'aforesaid actions of the respondent authorities'. Thus it is not a general order or act of any authority that necessitated the filing of the present writ petition.
I must go back to where I started. Even if it is a part of our experience that unnecessary proceedings are initiated for various reasons, one being not to allow an ex-employee of the organization to get the benefit of an order that has been passed in his favour, such proceedings must not be encouraged. The Controlling Authority had to observe about three years ago that the petitioners herein were indulging in prolonging the proceeding unnecessarily. In the year 2016, I have no opinion other than the same. The only difference is at that point of time, it was only in respect of one proceeding that the Controlling Authority formed the opinion. Now they have resorted to myriad proceedings, even if simultaneously, to somehow deprive the respondent No. 6 to get the gratuity. The reason 5 mentioned in the writ petition justifying a simultaneous proceeding under Article 226 of the Constitution of India along with a statutory appeal is on the face of it an apology for any just cause that a Court of law expects from an employer. Nothing could be more superfluous than this. Early disposal entirely lies with the initiative to be taken by them. The petitioners have not done anything other than mentioning that they have not received any notice from the appellate authority. In the fitness of things, it was only expected that they should have taken appropriate steps for obtaining a stay of operation of the order if they were seriously pursuing the appeal. The petitioners appear to be more interested in multifarious proceedings than pursuing a single appropriate remedy.
The writ petition is dismissed.
Subject to any order that may have been passed by a competent authority, the respondent No. 6 shall be entitled to take all such steps in accordance with law for the recovery of the amount determined by the Controlling Authority.
There shall be no order as to costs.
Urgent Photostat certified copy of the order, if applied for, be supplied to the parties at an early date.
(Dr. Sambuddha Chakrabarti,J)