IMPORTANT POINT
The court held that non-joinder of a necessary party does not invalidate proceedings if no prejudice is shown, emphasizing the limited scope of review jurisdiction.

JUDGMENT :

Gautam Kumar Choudhary, J.

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