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IN THE HIGH COURT AT CALCUTTA
Raja Basu Chowdhury, J.
Ganesh Chandra Guha - Appellant
Versus
State Of West Bengal & Ors. - Respondents
W.P.A. No. 15380 of 2022
Decided On : 03-02-2023
INDUSTRIAL DISPUTES - Computation of pension benefits - Order dismissing computation case for default - Recall of order - Jurisdiction of Labour Court - Inherent power to recall order - Procedural review - Review on merits - Limitation - Industrial Disputes Act, 1947, Sections 33(C)(2), 17A.
Fact of the Case:
Petitioner, a retired employee, filed an application under Section 33(C)(2) of the Industrial Disputes Act, 1947, seeking computation of his pensionary benefits. The Labour Court, after hearing the petitioner's evidence-in-chief and partial cross-examination, closed the petitioner's evidence. The respondent filed an application for expunging the petitioner's evidence, which was kept in abeyance. The Labour Court subsequently dismissed the computation case for non-prosecution. The petitioner's application for recalling the dismissal order was dismissed by the Labour Court on the ground that recalling the order would not improve the petitioner's case.
Finding of the Court:
1. The Labour Court has inherent power to recall its order dismissing a case for default or procedural irregularity. 2. The power of procedural review is different from the power of review on merits. In a procedural review, the court or quasi-judicial authority corrects a procedural illegality that goes to the root of the matter and invalidates the proceeding itself. 3. The petitioner was prevented by sufficient cause from appearing on the date of dismissal due to his advocate's illness and the pandemic. 4. The Labour Court erred in dismissing the computation case on merits and in overlooking the issue of expunging the petitioner's evidence.
Issues: 1. Whether the Labour Court has the jurisdiction to recall its order dismissing a computation case for default? 2. Whether the petitioner was prevented by sufficient cause from appearing on the date of dismissal? 3. Whether the Labour Court erred in dismissing the computation case on merits without considering the issue of expunging the petitioner's evidence?
Ratio Decidendi: 1. The Labour Court has inherent power to recall its order dismissing a case for default or procedural irregularity. 2. The power of procedural review is different from the power of review on merits. In a procedural review, the court or quasi-judicial authority corrects a procedural illegality that goes to the root of the matter and invalidates the proceeding itself. 3. The petitioner was prevented by sufficient cause from appearing on the date of dismissal due to his advocate's illness and the pandemic. 4. The Labour Court erred in dismissing the computation case on merits and in overlooking the issue of expunging the petitioner's evidence.
Final Decision: The order of the Labour Court dismissing the computation case is set aside. The computation case is restored to its original number and file. The Labour Court is directed to hear and dispose of the computation case expeditiously, preferably within 6 months from the date of communication of the order.
JUDGMENT
Raja Basu Chowdhury, J. - The present writ application has been filed challenging the order dated 23rd March, 2022 passed by the 1st Labour Court in Case No. 18 of 2017. The petitioner's case proceeded on the premise that he had joined the service of the respondent no.2 in the year 1971 as a stenographer and had retired from service on and from 17th June, 1997. The petitioner claims that the respondent no.2 had introduced a pension scheme for its employees including the petitioner. In the petitioner's case despite request since no pension was released, the petitioner filed an application under Section 33(C)(2) of the Industrial Disputes Act, 1947(hereinafter referred to as the said Act), inter alia, praying therein for release of arrears of his pension as per details provided in the said application. The said case was registered as computation case no. 43 of 2001. On contested hearing the learned 1st Labour Court was, inter alia, pleased to dispose the said application by an order dated 28th February, 2011, inter alia, holding that the petitioner is entitled to a sum of Rs. 5,56,994/- from the respondent no.2. Challenging the aforesaid order, a writ application was filed before this Hon'ble Court which was registered as WP No. 8266(W) of 2011. By judgment and order dated 17th January, 2017 this Hon'ble Court was, inter alia, pleased to uphold the order dated 28th February, 2011 passed by the learned Labour Court. The respondent no.2 has since complied with the aforesaid order and has made payment of the arrears of pension as determined in computation case no. 43 of 2001, pertaining to the period from 1st September, 1990 to 1st September, 2000.
2. Since the entitlement to receive the pensionary benefit had already been determined by the Labour Court in computation case no. 43 of 2001 and despite the same, the respondent no.2 having failed to pay the pensionary benefit, for the period 2nd September, 2000 and onwards, the petitioner filed another application for recovery of his dues under Section 33 (C)(2) of the said Act, which was registered as computation case no. 18 of 2017.
3. It is in connection with the aforesaid case that the petitioner had filed his examination-in-chief on affidavit on 5th July, 2018 and was partly cross-examined on 20th August, 2018. Cross-examination, however, could not be completed on that date as the respondent no.2 sought for an adjournment, which was allowed and the next date of hearing was fixed on 9th October, 2018. Since the hearing was adjourned on 9th October 2018 the matter was posted for further cross-examination on 4th December, 2018.
4. On the adjourned date the petitioner was seriously ill, and bed ridden and as such he sought for an adjournment by filing an adjournment application. The learned Labour Court by order no.15 dated 4th December, 2018 closed the evidence of the petitioner. Following the aforesaid, the respondent no.2 filed an application for expunging the evidence of the petitioner. Such application was taken up for hearing on 13th December, 2019 and by order no. 23, the learned Court was, inter alia, pleased to direct that such petition shall be heard and taken up for consideration at the time of final arguments.
5. Incidentally, during the pandemic on 9th September, 2021 the computation case filed by the petitioner was dismissed for non-prosecution by order no. 35 dated 9th September, 2021. The recalling application filed by the petitioner on 21st December, 2021 was also dismissed on contest by order no. 40 dated 23rd March, 2022.
6. Challenging the aforesaid order, the present writ application has been filed. After exchange of affidavits the matter had come up for final hearing.
7. Mr. Datta learned advocate representing the petitioner submitted that the petitioner had no control when the computation case no. 18 of 2017 was dismissed. The dismissal was affected during the pandemic when there was a resolution adopted by the Bar Association, requesting the learned Judges n
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