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2015 DIGILAW 657 (CAL)

Sunil Kumar Samanta v. Bishnupada Ghosh

2015-08-06

MIR DARA SHEKO

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JUDGMENT : Mir Dara Sheko, J. 1 This revisional application under Article 227 of the Constitution of India has been directed against the order dated 9th October, 2007 passed by the Learned Second Labour Court, Calcutta West Bengal in Computation Case No.4 of 2001 to issue rule calling upon the opposite parties to show cause as to why the said order should not be set aside and all further proceedings following that order shall not be stayed. 2. Fact in brief of the matter is that on prayer of the Opposite Party No., Shri Bishnupada Ghosh, happened to be an employee of Kamala Cinema situated at Khardah Station Road within District 24th Parganas North, the Labour Court, due to non-appearance of the petitioner despite service of notice and lastly publication of notice in the newspaper “Aajkal” passed ex-parte order in Computation Case No.4 of 2001 providing the arrear salary provident fund bonus etc. which were available as dues to the opposite party No.1. 3. Following the provision of law since the petitioner did not also pay heed of such ex-parte order of the Labour Commissioner under Section 33C of the Industrial Disputes Act, 1947 before the Court of Chief Judicial Magistrate, Barasat North 24-Parganas where the petitioner as an accused appeared, obtained liberty of bail and simultaneously has initiated this proceeding by submission of application under Article 227 of the Constitution of India seeking the reliefs under reference. 4. Learned Advocate for the petitioner Mr. Soumya Majumder submitted two folds arguments. Firstly, notice of the Computation Case was never served upon the petitioner. Secondly, the petitioner having transferred all his shares in the business and property of Kamala Cinema in favour of his brother by a registered Deed of Gift dated 1st April, 1999 and eventually on and from 01.04.1999 the petitioner having ceased to have any relation whatsoever with Kamala Cinema, Computation Case was not maintainable against him and so he is not liable to make any payment as computed by the Labour Commissioner. 5. Learned Advocate for the opposite party No.1 Mr. Purakaystha replied that at every steps notice was issued to call upon the petitioner to participate in the Computation Case which was initiated by the Opposite Party No.1 but the petitioner had avoided the service. Though, the endorsement “refused” tantamounts to valid service, nonetheless through publication in newspaper the notice was served. Learned Advocate for the opposite party No.1 Mr. Purakaystha replied that at every steps notice was issued to call upon the petitioner to participate in the Computation Case which was initiated by the Opposite Party No.1 but the petitioner had avoided the service. Though, the endorsement “refused” tantamounts to valid service, nonetheless through publication in newspaper the notice was served. Therefore, the order of the Labour Commissioner stands good and for its non-compliance the proceedings as has been initiated before the Court of Learned Chief Judicial Magistrate Barasat District North -24th Parganas should be kept uninterrupted. 6. The factual aspect postulates that the dues relating to salary provident fund, bonus leave with pay, which were the subject matter of the Computation Case No.4 of 2001 filed at the instance of the Opposite Party No.1 before the Labour Commissioner under the Act, were for the period of December 1990 to December 1994. Although, the petitioner failed to offer his participation before the Labour Commissioner, nonetheless of service of notice, even if the contention of the petitioner is accepted that the petitioner has gifted all his shares in the business and property of Kamala Cinema in favour of his brother and made over the business on and from 1st April, 1999, the claim as computed being for the period of much prior to that transfer, I find neither perverseness nor illegality in the order under challenge as passed by the Labour Commissioner . Consequently there being no injustice rendered in the decision making process held so far this Court feels no cause of making interference of any kind in the criminal proceeding as has been initiated before the Learned Chief Judicial Magistrate, Barasat District North 24th Parganas on the basis of the complaint lodged by the Labour Commissioner empowered under the Industrial Disputes Act, 1947 does not arise. 7. In view of above observations I find no substance in the proceeding initiated before this Court under Article 227 of the Constitution of India and, therefore, revisional application stands dismissed with cost of 200 G.M.s payable by the petitioner to the opposite party no. 1 Bishnupada Ghosh within two months from this date of order before the learned Labour Court within one month from the date of this order, failing which, the opposite party no. 1 will be at liberty to realise the same on execution as per law. 8. 1 Bishnupada Ghosh within two months from this date of order before the learned Labour Court within one month from the date of this order, failing which, the opposite party no. 1 will be at liberty to realise the same on execution as per law. 8. Now, the Deputy Commissioner, Government of West Bengal, having his office at 6, Church Lane, 3rd Floor, Kolkata 700 001 is directed to release Rs. 45,000/- in favour of the opposite party no. 1 of this proceeding viz. Bishnupada Ghosh, petitioner of the Computation Case no. 4 of 2001 (Bishnupada Ghosh vs. M/s. Kamala Cinema and Ors.) at once after observing usual formalities on proper identification and receipt after presentation of a copy of the certified copy of this order, provided the said amount of Rs. 45,000/- has been deposited by the petitioner of this case, Sunil Kumar Samanta in compliance with the order dated 15th May, 2008 passed by this Court and except receipt of said Rs. 45,000/-, from the Deputy Commissioner had it been deposited by the petitioner, then the balance amount, or alternatively had it not been deposited, then the entire dues as computed in the case under reference, shall be realised by the opposite party no. 1, Bishnupada Ghosh on taking lawful course as available within the Act and usual rules. 9. Let a copy of this order be communicated to the learned 2nd Labour Court, Kolkata, West Bengal for information in connection with Computation Case no. 4 of 2001. 10. Urgent Photostat certified copy of this order, if applied for, be supplied on priority basis.