Review vs M/S Anvil Cables Private Limited ... on 9 August, 2024

[Cites 6, Cited by 0]

Jharkhand High Court

Review vs M/S Anvil Cables Private Limited ... on 9 August, 2024

Author: Gautam Kumar Choudhary

Bench: Gautam Kumar Choudhary

   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       Civil Review No. 22 of 2024
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The Jharkhand Building and Other Construction Workers Welfare Board through its Secretary namely Pradeep Robert Lakra, S/o- Late Jonas Lakra, R/o Fred Palace, Ashok Kunj, B/3, Ashok Nagar, Opp. Gate No. 3, P.O. Doranda, P.S. Argora, Ranchi- 834002 .... .... .... Review Petitioner Versus

1. M/s Anvil Cables Private Limited through its constituted Attorney, Mr. Shailendra Kumar Singh, S/o Shri Ravindra Nath Singh, R/o Dewanji Street, Hoogly, P.O. & P.S. - Rishra, District- Hoogly, Pin Code- 711228, West Bengal.

2. State of Jharkhand through the Secretary Department of Labour, Employment & Training, at Shram Bhawan, Doranda, P.O. & P.S.- Doranda, District- Ranchi, Jharkhand - 834002

3. Labour Commissioner, Department of Labour Employment & Training, at Shram Bhawan, Doranda, P.O. & P.S.- Doranda, District- Ranchi, Jharkhand - 834002

5. Jharkhand Bijli Vitran Nigam Limited, through its Managing Director, at Engineering Building, HEC, Dhurwa, P.O. and P.S. - Dhurwa, District- Ranchi, Jharkhand- 834002

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2. State of Jharkhand through the Secretary Department of Labour, Employment & Training, at Shram Bhawan, Doranda, P.O. & P.S.- Doranda, District- Ranchi, Jharkhand - 834002

3. Labour Commissioner, Department of Labour Employment & Training, at Shram Bhawan, Doranda, P.O. & P.S.- Doranda, District- Ranchi, Jharkhand - 834002

5. Jharkhand Bijli Vitran Nigam Limited, through its Managing Director, at Engineering Building, HEC, Dhurwa, P.O. and P.S. - Dhurwa, District-

Ranchi, Jharkhand- 834002

6. General Manager (Project and Financial Management) Jharkhand Bijli Vitran Nigam Limited, at Engineering Building, HEC, Dhurwa, P.O. and P.S. - Dhurwa, District- Ranchi, Jharkhand- 834002 .... .... .... Opp. Parties With Civil Review No.27 of 2024 The Jharkhand Building and Other Construction Workers Welfare Board through its Secretary namely Pradeep Robert Lakra, S/o- Late Jonas Lakra, R/o Fred Palace, Ashok Kunj, B/3, Ashok Nagar, Opp. Gate No. 3, P.O. Doranda, P.S. Argora, Ranchi- 834002 .... .... .... Review Petitioner Versus

2. State of Jharkhand through the Secretary Department of Labour, Employment & Training, at Shram Bhawan, Doranda, P.O. & P.S.- Doranda, District- Ranchi, Jharkhand - 834002

3. Labour Commissioner, Department of Labour Employment & Training, at Shram Bhawan, Doranda, P.O. & P.S.- Doranda, District- Ranchi, Jharkhand - 834002

5. Jharkhand Bijli Vitran Nigam Limited, through its Managing Director, at Engineering Building, HEC, Dhurwa, P.O. and P.S. - Dhurwa, District- Ranchi, Jharkhand- 834002

6. General Manager (Project and Financial Management) Jharkhand Bijli Vitran Nigam Limited, at Engineering Building, HEC, Dhurwa, P.O. and P.S. - Dhurwa, District- Ranchi, Jharkhand- 834002 .... .... .... Opp. Parties With Civil Review No.28 of 2024 The Jharkhand Building and Other Construction Workers Welfare Board through its Secretary namely Pradeep Robert Lakra, S/o- Late Jonas Lakra, R/o Fred Palace, Ashok Kunj, B/3, Ashok Nagar, Opp. Gate No. 3, P.O. Doranda, P.S. Argora, Ranchi- 834002 .... .... .... Review Petitioner Versus

2. State of Jharkhand through the Secretary Department of Labour, Employment & Training, at Shram Bhawan, Doranda, P.O. & P.S.- Doranda, District- Ranchi, Jharkhand - 834002

3. Labour Commissioner, Department of Labour Employment & Training, at Shram Bhawan, Doranda, P.O. & P.S.- Doranda, District- Ranchi, Jharkhand - 834002

4. Assistant Labour Commissioner-Cum-Cess Assessment Officer (Building and other Construction Workers Welfare Cess Act, 1996), at Shram 2 Bhawan, Doranda, P.O. & P.S.- Doranda, District- Ranchi, Jharkhand - 834002

5. Jharkhand Bijli Vitran Nigam Limited, through its Managing Director, at Engineering Building, HEC, Dhurwa, P.O. and P.S. - Dhurwa, District- Ranchi, Jharkhand- 834002

6. General Manager (Project and Financial Management) Jharkhand Bijli Vitran Nigam Limited, at Engineering Building, HEC, Dhurwa, P.O. and P.S. - Dhurwa, District- Ranchi, Jharkhand- 834002 .... .... .... Opp. Parties With Civil Review No.29 of 2024 The Jharkhand Building and Other Construction Workers Welfare Board through its Secretary namely Pradeep Robert Lakra, S/o- Late Jonas Lakra, R/o Fred Palace, Ashok Kunj, B/3, Ashok Nagar, Opp. Gate No. 3, P.O. Doranda, P.S. Argora, Ranchi- 834002 .... .... .... Review Petitioner Versus

1. M/s JSP Project Private Limited, through its authorised signatory Mr. Sumit Kumar Sinha, S/o Shri Niranjan Kumar Sinha, R/o 69, Near RPD School, Kumhartoli, Lohia Nagar, P.O. & P.S.-Lohia Nagar, District- Patna, Bihar- 800020

2. State of Jharkhand through the Secretary Department of Labour, Employment & Training, at Shram Bhawan, Doranda, P.O. & P.S.- Doranda, District- Ranchi, Jharkhand - 834002

3. Labour Commissioner, Department of Labour Employment & Training, at Shram Bhawan, Doranda, P.O. & P.S.- Doranda, District- Ranchi, Jharkhand - 834002

5. Jharkhand Bijli Vitran Nigam Limited, through its Managing Director, at Engineering Building, HEC, Dhurwa, P.O. and P.S. - Dhurwa, District- Ranchi, Jharkhand- 834002

6. General Manager (Project and Financial Management) Jharkhand Bijli Vitran Nigam Limited, at Engineering Building, HEC, Dhurwa, P.O. and P.S. - Dhurwa, District- Ranchi, Jharkhand- 834002 .... .... .... Opp. Parties With Civil Review No.30 of 2024 The Jharkhand Building and Other Construction Workers Welfare Board through its Secretary namely Pradeep Robert Lakra, S/o- Late Jonas Lakra, R/o Fred Palace, Ashok Kunj, B/3, Ashok Nagar, Opp. Gate No. 3, P.O. Doranda, P.S. Argora, Ranchi- 834002 .... .... .... Review Petitioner Versus

1. M/S Megha Engineering & Infrastructure Ltd., through its Associate General Manager Mr. Rakesh Ranjan, S/o Shri Jagannath Surekha, R/o Ratanpriya Apartment, 6E, 6th Floor, Singh More, Latma Road, Hatia, Ranchi, P.O. - Hatia and P.S. Jagannathour, Ranchi

2. State of Jharkhand through the Secretary Department of Labour, Employment & Training, at Shram Bhawan, Doranda, P.O. & P.S.- Doranda, District- Ranchi, Jharkhand - 834002 3

3. Labour Commissioner, Department of Labour Employment & Training, at Shram Bhawan, Doranda, P.O. & P.S.- Doranda, District- Ranchi, Jharkhand - 834002

5. Jharkhand Urja Sancharan Nigam Limited, through its Managing Director, at Nigam HQ Building, Kusai Colony, Doranda, P.O. and P.S. - Doranda, District- Ranchi, Jharkhand- 834002

6. Senior Manager (Finance and Accounts), Jharkhand Urja Sancharan Nigam Limited, through its Managing Director, at Nigam HQ Building, Kusai Colony, Doranda, P.O. and P.S. - Doranda, District- Ranchi, Jharkhand- 834002 .... .... .... Opp. Parties With Civil Review No.46 of 2024 The Jharkhand Building and Other Construction Workers Welfare Board through its Secretary namely Pradeep Robert Lakra, S/o- Late Jonas Lakra, R/o Fred Palace, Ashok Kunj, B/3, Ashok Nagar, Opp. Gate No. 3, P.O. Doranda, P.S. Argora, Ranchi- 834002 .... .... .... Review Petitioner Versus

2. State of Jharkhand through the Secretary Department of Labour, Employment & Training, at Shram Bhawan, Doranda, P.O. & P.S.- Doranda, District- Ranchi, Jharkhand - 834002

3. Labour Commissioner, Department of Labout, Employment & Trianing, at Shram Bhawan, Doranda, P.O. & P.S.- Doranda, District- Ranchi, Jharkhand - 834002

5. Jharkhand Bijli Vitran Nigam Limited, through its Managing Director, at Engineering Building, HEC, Dhurwa, P.O. and P.S. - Dhurwa, District- Ranchi, Jharkhand- 834002

6. General Manager (IT) Jharkhand Bijli Vitran Nigam Limited, at Engineering Building, HEC, Dhurwa, P.O. and P.S. - Dhurwa, District-

    Ranchi, Jharkhand- 834002
                                            ....    .... ....   Opp. Parties

                       With
           Civil Review No.78 of 2024

1. Jharkhand Bijli Vitaran Nigam Limited, through its Managing Director, at Engineering Building, HEC, Dhurwa, P.O. and P.S. - Dhurwa, District- Ranchi

2. General Manager (IT), Jharkhand Bijli Vitran Nigam Limited at Engineering Building, HEC, Dhurwa, P.O. and P.S. - Dhurwa, District-

   Ranchi
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                                      ....    .... .... Review Petitioner
                                     Versus

1. M/s Genus Power Infrastructure Limited thought its Senior Engineer, Mr. Praveen Gupta, S/o Mr. Surendra Prasad Gupta, R/o Hatia, Singhmore, P.O. Hatia and P.S.- Hatia, Ranchi- 834003.

2. State of Jharkhand through the Secretary Department of Labour, Employment & Training, at Shram Bhawan, Doranda, P.O. & P.S.- Doranda, District- Ranchi, Jharkhand - 834002

3. Labour Commissioner, Department of Labour Employment & Training, at Shram Bhawan, Doranda, P.O. & P.S.- Doranda, District- Ranchi, Jharkhand - 834002

4. Assistant Labour Commissioner-Cum-Cess Assessment Officer (Building and other Construction Workers Welfare Cess Act, 1996), at Shram Bhawan, Doranda, P.O. & P.S.- Doranda, District- Ranchi, Jharkhand - 834002 .... .... .... Opp. Parties With Civil Review No.45 of 2024 The Jharkhand Building and Other Construction Workers Welfare Board through its Secretary namely Pradeep Robert Lakra, S/o- Late Jonas Lakra, R/o Fred Palace, Ashok Kunj, B/3, Ashok Nagar, Opp. Gate No. 3, P.O. Doranda, P.S. Argora, Ranchi- 834002 .... .... .... Review Petitioner Versus

1. M/s Genus Power Infrastructure Limited thought its Senior Engineer, Mr. Praveen Gupta, S/o Mr. Surendra Prasad Gupta, R/o Hatia, Singhmore, P.O. Hatia and P.S.- Hatia, Ranchi- 834003.

2. State of Jharkhand through the Secretary Department of Labour, Employment & Training, at Shram Bhawan, Doranda, P.O. & P.S.- Doranda, District- Ranchi, Jharkhand - 834002

3. Labour Commissioner, Department of Labour Employment & Training, at Shram Bhawan, Doranda, P.O. & P.S.- Doranda, District- Ranchi, Jharkhand - 834002

5. Jharkhand Bijli Vitran Nigam Limited, through its Managing Director, at Engineering Building, HEC, Dhurwa, P.O. and P.S. - Dhurwa, District- Ranchi, Jharkhand- 834002

6. General Manager (IT) Jharkhand Bijli Vitran Nigam Limited, at Engineering Building, HEC, Dhurwa, P.O. and P.S. - Dhurwa, District- Ranchi, Jharkhand- 834002 .... .... .... Opp. Parties

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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Petitioners : Mr. Krishna Murari, Advocate Mr. Jayesh Anand, Advocate For the Opp. Parties : Mr. M.S. Mittal, Sr. Advocate Mr. Salona Mittal, Advocate Mr. Sachin Kumar, Advocate For the JBVNL : Mr. Rajiv Ranjan, AG 5 Mr. Sachin Kumar, Sr. S.C. Mr. Ashok Kumar Yadav, Sr. SC-1 Mr. Karamdeo, Advocate For the State : Mr. Rohit, AC to AAG-I

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Order No. 06 Dated : 09.08.2024

1. Heard learned counsel Sri Krishna Murari appearing on behalf of the review petitioners for permission to prefer the connected review/recall petition as it was not a party in the original respective writ petitions. Permission is accorded. Accordingly, interlocutory application for impleadment stands allowed.

2. All these Civil review petitions have been filed on behalf of the Jharkhand Building and other Construction Workers Welfare Board (hereinafter called Board) against the different orders passed by this Court in W.P.(C) No. 5775 of 2023, W.P.(C) No. 5777 of 2023, W.P.(C) No. 5776 of 2023, W.P.(C) No. 5778 of 2023, W.P.(C) No. 6695 of 2023W.P.(C) No. 6262 of 2023, W.P.(C) No. 5458 of 2023, by which Labour Commissioner and Assistant Labour Commissioner have been directed to refund labour cess deducted under supply portion with simple interest @ 6% on the said amount.

3. Civil Review 78 of 2024 has been filed for direction to modify the order passed in W.P.(C) No. 241 of 2023, directing JBVNL to refund the amount. It is contended that since the amount after deduction has been remitted to the Board, therefore Labour Department authorities be directed to make the repayment.

4. The said order was passed relying on the ratio laid down by Hon'ble Supreme Court in (2021) 6 SCC 15, which exonerated supply contracts from the ambit of Cess Act, 1996.

5. These Civil Review petitions have been filed on the ground that Board was a necessary party, as the labour cess was deducted and was credited in the account of the Board and amount has to be refunded by the Board to the concerned writ petitioners. Since liability to refund the amount was on the Board, therefore it was a necessary party and it was incumbent on the part of the writ petitioners to implead the Board as a party, and the order having been passed without giving an opportunity to the petitioners is against fundamental principles of natural justice.

6. It is argued in this regard that the Board is an independent body corporate constituted under Section 18 of the Building and other Construction Workers Act, 1996 (hereinafter called as BOCW).

7. It is argued by the learned counsel for the petitioner that being incorporated statutory Board under Section 18 of the BOCW Act, it is invested with power to institute the suit as well as to defend the suit or any other legal proceeding. Since the Board was not heard, therefore it was a procedural illegality which goes to the root of the matter and invalidates the proceeding itself. It is a case not for a substantive review, but being procedural review is for recalling the earlier order so as to permit the review petitioner to be heard before passing the final order.

8. It is contended that the co-ordinate Bench of this Court in different matters arising out of the same and similar cause of action have admitted that the Board was necessary party and has impleaded it in the writ petitions where the deductions have been challenged under Cess Act and refund has been sought for. A specific reference has been made in W.P.(C) No. 7243 of 2023 in order to buttress the legal contention that it was a procedural review and the petition was for recalling the earlier order.

9. Learned Advocate General argued on behalf of the JBVNL in Civil Review No. 78 of 2024, which has been filed for modification of the order dated 04.12.2023 passed in W.P.(C) No. 241 of 2023 by which the review petitioners have been saddled with a liability to refund the deducted amount under the Cess Act to the petitioner.

10.It is argued that after the deduction of the cess amount as per provision of Building and Other Construction Workers Welfare Cess Act 1996 have been credited with the Board, and therefore order be modified directing the review petitioners to get the said amount from the Board which will enable JBVNL to refund the amount after getting back the amount from the Board.

11.It is argued by the learned Senior counsel Mr. M.S. Mittal on behalf of writ petitioners/ contesting respondents that the review petition is an appeal in disguise to assail the impugned order.

12.Writ petitioners are not necessary party for the reason that they had entered into contract with JBVNL (respondent no.4) and not with the Board and had been paying labour cess since long. Dispute arose after 2020/2021 when 7 labour cess was deducted on the supply portion of the contract by JBVNL which was against settled law as laid down by the division Bench of this Court, as well as by the Hon'ble Supreme Court. In order to get the refund illegally deducted by JBVNL, writ petition was filed by impleading JBVNL, the Labour Commissioner Department of Labour and Assistant Labour Commissioner-cum-Cess Assessment Officer as parties.

13. There is a close nexus between JBVNL and the Board, in as much as the amount is deducted by the former and is remitted to the latter, in whose account the deducted amount is remitted.

14. It is argued that the matter is not a res-integra has been settled as whether labour cess can be deducted from supply portion of the contract has been settled by a Single Bench of this Court in Flowmore Ltd. Vrs. State of Jharkhand and others reported in 2022 SCC Online Jharkhand 633 wherein the said deduction was held to be illegal and the Single Bench directed Jharkhand Urja Sancharan Nigam Ltd. to refund the amount of labour Cess which had been deducted from the petitioner's bill for supply of material and consultancy charges. The department of labour was directed to refund the amount. After this order was passed, Secretary of the Board vide letter dated 23.9.2022 addressed to Managing Director JUSNL requested him the move for engaging an Advocate to file LPA by the Board. Thereafter, LPA was filed by State of Jharkhand through Secretary Department of Labour, Employment and Training, Office at Shrambham, Doranda, Ranchi and also by Labour Commissioner, Assistant Labour Commissioner, against the order passed by the learned Single Judge. The Division Bench of this Court in LPA No. 511/2022 vide order dated 27.7.2023 dismissed the LPA relying on the ratio laid down by Hon'ble Supreme Court in Uttar Pradesh, Power Transmission Corporation Ltd. & Anr. Vrs. CG Power and Industrial Solution Ltd. & Anr. reported in (2021) 6 SCC 15.

15. By referring to these judgments passed by this Court, learned counsel submits that the payments were made by the petitioner to the Board in compliance to order of LPA Court. In the contempt arising out of the said order passed in LPA for payment of interest on the deducted amount it was none other than the Labour Commissioner-cum Chairman Board Ranchi, 8 who filed office order No. 5 dated 18.09.2023 in their show cause reply raising no objection (Annexure (1)A/A page 20) to the counter-affidavit filed on behalf of review petitioner dated 29.07.2024. In this office order which related to a meeting was held and participated by the Secretary Board & Ors. It concluded with resolution that since the Cess has been credited to current account and has not been used by JBOCWW Board to earn any interest, rather it was used for welfare of laborers under various social security/welfare schemes. Hence, both the parties resolved to move the High Court to waive of the payment of interest M/s. Flowmore Ltd. By referring to these orders passed by the Single Bench, Division Bench and by the letter and orders of JBOCWW Board.

16. Having considered the arguments advanced by learned counsels on behalf of both sides and the materials on record, the following facts are not in dispute.

I. Writ Petitioners entered into work contract with JBVNL and while making payment, labour cess was deducted on the supply portion of the contract. II. After the said deduction the amount was remitted to the account of the Board by JBVNL.

III. Being aggrieved by the deductions the Petitioners preferred writ petition impleading JBVNL as well as the Labour Departments through their respective officers.

IV. Writ Petition was allowed directing JBVNL/Labour Department, to refund the amount, relying on the ratio laid down by Division Bench of this Court in LPA No. 511/2022 vide order dated 27.7.2023 and in Uttar Pradesh, Power Transmission Corporation Ltd. & Anr. Vrs. CG Power and Industrial Solution Ltd. & Anr. reported in (2021) 6 SCC 15. V. Review petitioners in Civil Review Petitions Nos. 46 of 2024 and 45 of 2024 WP(C) No. 5458 of 2023 & 241 of 2023 filed Letters Patent Appeal before the Division Bench of this Court, which was later on dismissed as withdrawn with a liberty to pursue the review petition.

17.Matter for consideration in these review petitions is whether the order passed by this Court was bad for non-joinder of the review petitioner as necessary party in the writ petitions, and in what manner the review petitioner has been aggrieved by passing of the order for refund without impleading them as a 9 party.

18. In order to appreciate the issues raised in the present review petitions, it will be necessary to consider that there is distinction between non-joinder of necessary party who ought to have been joined, and non-joinder of a person who is joined only as a matter of convenience or expediency. This is because Order I Rule 9 is rule of procedure which does not affect the substantive law. It has been held in U.P. Awas Evam Vikas Parishad v. Gyan Devi, (1995) 2 SCC 326 at page 343

21. The law is well settled that a necessary party is one without whom no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision of the question involved in the proceeding. (See Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue [1963 Supp (1) SCR 676 : AIR 1963 SC 786] .)

19.The scope of interference while exercising review jurisdiction is limited one, and it cannot be made an appeal in disguise for rehearing the case on merits. Review is also not permissible when a party was heard in same capacity even when it was not impleaded as a formal party (Referred to 2024 (2) SCC 362 and 2015 (2) SCC 390. Furthermore, natural justice does not apply when there is no prejudice to the party concern.

20. As discussed in forgoing paragraphs, in Flowmore Case (Supra) also Board was not a party, the order of refund was directed against the Labour Commissioner and refund of the deducted amount was paid by the Board pursuant to the order passed by the Division Bench in L.P.A. No. 511 of 2022. It is also to be noted that the Labour Department was a party in the present case, and the Board which is seeking review of the order, is headed by none other than the Labour Commissioner, who acts as the Chairman of the Board. Labour Department at no point of time raised this issue of non- joinder as a party while contesting the claim of the writ petitioners. This review petition has been preferred, when the Writ Petitioners have preferred contempt petitions for non-compliance with the order of refund.

21.It may not be out of place to mention that the writ petitioners entered into contract with JBVNL, the labour cess was deducted on the supply portion by it. Petitioners had directly no grievance against the Board which was custodian of the amount deducted by JBVNL. Review petitioners cannot 10 raise any independent plea on merit against the refund. It is a moot point whether the Board has been impleaded as a party in subsequent proceeding or not. Technicalities can neither triumph over substantive justice nor can delay.

22.This being the factual position, the review petitioners' plea of prejudice on account of their non-impleadment is not tenable as a ground for recalling the order and is, accordingly, rejected.

23.As far as Civil Review No. 78 of 2024 is concerned, the final order passed in W.P.(C) No. 241 of 2023 is modified and JBVNL is directed to refund the amount to the writ petitioners after getting the same from the Board. Accordingly, Civil Review No. 78 of 2024 stands disposed of.

With this modification in the order passed in W.P. (C) No. 241 of 2023, all the remaining Civil Review Petitions stand dismissed.

(Gautam Kumar Choudhary, J.) Pawan/ Satyaendra/ /Anjali 11

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