Research › Search › Judgment

Calcutta High Court · body

2007 DIGILAW 161 (CAL)

Joseph Tigga v. UNION OF INDIA

2007-03-09

ASHIM KUMAR BANERJEE, DIPANKAR DATTA

body2007
JUDGMENT Ashim Kumar Banerjee, J. 1. The appellants were employees of Wimco Company who closed down their unit in these Islands in 1991-92. The appellants were residing in the Company quarters which they refused to vacate. The Workers’ Union entered into a Memorandum of Settlement with the management of Wimco under Section 18(3) of the Industrial Disputes Act, 1947. It was agreed upon by and between the parties that the Company would make payment of retrenchment compensation upon vacating of the quarters. It was alleged that the appellants did not vacate the quarters despite payment being offered to them. In 1995 the property was purchased by Andaman Timber Industries Limited. However, Andaman Timber did not get vacant possession. As such, they filed several litigations as against the occupants including the appellants. In the meantime, the property was acquired by the Administration. The land acquisition case being L.A. Case No. 5/2001 was heard and disposed of by the District Judge inter alia holding that Andaman Timber would be entitled to entire] compensation deposited in Court being Rs. 73,73,177/-. By the said award a sum of Rs. 80,000/- was awarded to the eight evictees including the appellants and both the appellants were awarded Rs. 10,000/- each. 2. Being aggrieved by the said award, a writ petition was filed by the appellants. Pertinent to mention, the award was published on October 6, 2004, whereas, the writ petition, was filed on March 28,2005. In Paragraph 6 of the said writ petition the appellants gave reasons for delay in moving the Court. According to them, they engaged a senior counsel at Kolkata and there had been lapse of, considerable time in consulting senior lawyer for preparation of the writ petition. 3. The writ petition time to time appeared before the Circuit Bench seeking directions for filing affidavits. Ultimately, by an order dated July 29, 2005 the said writ petition was dismissed as withdrawn, as the learned Counsel appearing for the petitioner conceded before the learned single Judge that the writ petition was not maintainable and appropriate remedy was by way of an appeal. The learned Judge permitted the appellants to withdraw the writ petition with a corresponding liberty to agitate their grievance in appropriate forum. 4. In terms of the liberty so given by the learned single Judge, the instant appeal was filed on June 19, 2006 coupled with an application for condonation of delay. The learned Judge permitted the appellants to withdraw the writ petition with a corresponding liberty to agitate their grievance in appropriate forum. 4. In terms of the liberty so given by the learned single Judge, the instant appeal was filed on June 19, 2006 coupled with an application for condonation of delay. In the process, there was 695 days’ delay caused by the appellants in preferring the instant appeal. In the application for condonation, the appellants contended that the delay was caused due to change of lawyer as well as for arrangement of financial resource. 5. The Division Bench by an order dated December 15, 2006 directed the appellants to file a supplementary affidavit disclosing the name of the advocate upon whom the appellants put the blame in the application for condonation of delay. The Division Bench also observed that in case of failure to file such supplementary affidavit within the stipulated time the application would stand "automatically dismissed". Such affidavit, however, could not be filed. The matter again appeared before another Circuit Bench on January 9,2007 when the Division Bench recorded that since the application for condonation of delay stood dismissed by virtue of non-compliance of the order dated December 15, 2006 the appeal being barred by time should also be dismissed. 6. An application for recall was made. There were some technical errors. Assuch, the same was permitted to be withdrawn by order dated February 8, 2007. 7. CAN No. 17/2007 was thereafter filed for recall of the order dated January 9, 2007. 8. We heard the parties at length. 9. Upendra Roy, learned Counsel, appeared for the appellants, whereas, A.S.Roy, learned Counsel, appeared for Andaman Timber Industries. The said Company also filed affidavit in-opposition. 10. Upendra Roy in support of his application contended that the appellants were retrenched workmen. They also lost their homestead. In this precarious circumstance, they moved from one advocate to another for bringing their grievance before this Court. In the process they moved a wrong forum. The instant appeal was thus delayed. The Division Bench directed affidavit to be filed disclosing the name of the advocate, which they could not file and the appeal was consequently dismissed. Hence the order of dismissal should be recalled and the condonation application should be allowed and the appeal should be heard on merits. 11. The instant appeal was thus delayed. The Division Bench directed affidavit to be filed disclosing the name of the advocate, which they could not file and the appeal was consequently dismissed. Hence the order of dismissal should be recalled and the condonation application should be allowed and the appeal should be heard on merits. 11. A.S. Roy, learned Counsel appearing for Andaman Timber Industries strenuously opposed the said application for recall. He contended that the Court could only recall its own order in case it was passed by mistake or passed in a fraudulent circumstance. It was not the case of the appellants that the order was obtained by committing fraud upon Court or the Court passed the said order erroneously by committing mistake. Hence the order of recall could not be allowed. On the issue of delay, Roy drew our attention to various discrepancies on the cause of delay by making a comparative study of the earlier writ petition and the application for condonation of delay filed in the above appeal. 12. Mr. Roy in support of his contention relied on the following decisions: (1) Budhia Swain and Ors. v. Gopinath Deb and Ors. ; (2) Shyam Sunder Sarma v. Pannalal Jaiswal and Ors. and (3) Damodaran Pillai and Ors. v. South Indian Bank Ltd. . 13. The proposition of law so canvassed by Mr. Roy cannot be disputed. We arein full agreement with Mr. Roy that there were; inconsistencies with regard to the averments made in the writ petition and the application for condonation of delay. We are also in agreement with Mr. Roy to the extent that the application for recall might not be strictly maintainable., We, however, wish to take a pragmatic approach which we are obliged to do. 14. The appellants were retrenched workmen of Wimco. They lost their jobs. They lost their shelter. A man without any bread or’ shelter cannot be expected to be prompt enough to approach the Court of law in time. These workmen moved from door to door to have support from the members of the legal fraternity. In the process there might be some inconsistent statements made in the pleadings. If relying on those discrepancies we shut the door of justice to them it would be a grave injustice to be caused to the appellants. The appeal of the appellants might be found meritless at the hearing. In the process there might be some inconsistent statements made in the pleadings. If relying on those discrepancies we shut the door of justice to them it would be a grave injustice to be caused to the appellants. The appeal of the appellants might be found meritless at the hearing. At least they should get an opportunity of hearing on merits before this Court. The earlier Division Bench directed them to disclose the name of the advocates who were responsible for the delay. We can visualize the constraint of the appellants to disclose such name by filing an affidavit. There might be other reasons which restrained the appellants from filing such affidavit. If we do not recall our order for dismissal and insist on filing of such affidavit, it would not be proper justice given to the appellants, being members of the weaker Section of the society. 15. We are of the opinion that justice warrants recall of the order of dismissal in the instant case. Justice also warrants condonation of delay in preferring the appeal. The order dated December 15,2006 is recalled. The order dated January 9,2007 is also recalled. Application for condonation of delay is allowed. The appeal is taken on record. Andaman Timber Industries Ltd. is directed to file requisite number of informal paper book out of Court within a period of four weeks from date. They would also supply two copies of the paper book to the appellants free of cost. 16. The appeal be placed for hearing before the Circuit to be held in the month of June, 2007. CAN 17/2007 is disposed of. CAN 26/2007 is disposed of. CAN 43/2006 is also disposed of. 17. There will be no order as to costs. Dipankar Datta, J. 18. I agree.