B. Patel and Co. and Vs. State of Gujarat

B. Patel and Co. and ;mangal Construction Co. vs State of Gujarat

Disposition Application rejected Court Gujarat Decided Mar 13, 2006

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Citation: sooperkanoon.com/749856
Court: Gujarat High Court
Judge: P.B. Majmudar, J.
Decided On: Mar 13, 2006
Case Number: Civil Revision Application Nos. 1541 to 1546 of 1996
Subject: Arbitration
Disposition: Application rejected

Case Summary

AI-generated summary - not the official court judgment text.

- INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either...

Key legal issue: Arbitration
Outcome / disposition: Application rejected
Acts & sections: Arbitration Act, 1940; Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992 - Sections 8 and 21; Arbitration and Conciliation Act, 1996 - Sections 85(2); Arbitration (Protocol...

Parties & Advocates

Appellant / Petitioner

B. Patel and Co. and ;mangal Construction Co.

Advocate Ramnandan Singh, Adv. in Civil Revision Application Nos. 1541 and 1542 of 1996 and; R.R. Shah, Adv. i

Respondent

State of Gujarat

Advocate P.B. Sheth, Assistant Govt. Pleader

Legal References

Acts: Arbitration Act, 1940; Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992 - Sections 8 and 21; Arbitration and Conciliation Act, 1996 - Sections 85(2); Arbitration (Protocol and Convention) Act, 1936; Foreign Awards (Recognition and Enforcement) Act, 1961; Code of Civil Procedure (CPC) , 1908 - Sections 2 and 115
Cases Referred: Sardar Construction Co. v. State of Gujarat
Reported In: (2006)3GLR2513

Excerpt

.....as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. a full time worker usually works in a week for 40 hours or more depending on the award or agreement. if a person falls under the definition of workman under section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the i.d. act, and he will be entitled to all the benefits under the said act. a perusal of section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the i.d. act. however, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. the control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under section 2 (s) of the i.d. act. sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. depending on his requirement, the employer may employ..........in the present case, the arbitration proceedings in relation to the dispute were pending before the court, and hence, the high court has rightly transferred these proceedings to the tribunal. under section 8 of the said act on reference to the tribunal, the tribunal has to make an award which shall be deemed to be a decree within the meaning of section 2 of the civil procedure code, 1908 and it shall be executed accordingly.6. in the case of v. laxmikant and co. v. state of gujarat and anr. 2000 (2) glr 1441, a division bench of this court has held as under in para 9:9. from the above discussion, it is clear that according to the learned single judge, even if the award was passed by tribunal under 1940 act, till such an award became rule of the court or decree, the proceedings could be said to be pending, xxx xxx.considering the aforesaid aspect of the matter, the submissions of learned advocate for the applicant to the effect that the ratio of the judgment of the apex court in the case of if. p. state sugar corporation. ltd. v. jain construction co. (supra) would apply to the present cases cannot be accepted, as no such saving clause is available under the gujarat public works contracts disputes arbitration tribunal act, 1992. the point in issue, in view of the judgment of the supreme court in the case of sardar construction co. v. state of gujarat 1999 (3) scc 144, is already been concluded. the proceedings pending before the civil court for enforcement of the award are also required to be transferred to the tribunal in view of section 21 of the gujarat public works contracts disputes arbitration tribunal act, 1992.7. under the circumstances, it cannot be said that the learned civil judge has committed any error of law or of jurisdiction which is required to be corrected by this court in these revision applications. the proceedings pending before the civil court shall now be transferred to the tribunal and the tribunal shall decide the same in accordance.....

Full Judgment

P.B. Majmudar, J.

1. Since common point is involved in all these matters, with the consent of parties, all these matters are taken together for final hearing.

2. In all these matters, arbitration proceedings commenced under the provisions of Arbitration Act, 1940. The Arbitrator gave his award and for the purpose of execution, the same applications were submitted under the provisions of the Arbitration Act, 1940 for enforcing the said award being Misc. Civil Application Nos. 10, 9, 3, 6, 4 and 5 of 1994 before Civil Judge, S.D., Mirzapur (upon transfer to Civil Judge, S. D., Gandhinagar re-numbered as 33, 32, 37, 40, 38 and 39 of 1995 respectively). At the stage when the applications were pending before the Civil Court, the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992 came into force. In that view of the matter, an application was given by the State before the trial Court in each of the above matter for transferring the said proceedings to the Tribunal constituted under Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992. The learned Civil Judge, S.D., Gandhinagar accepted the said applications given by the State and passed an order under Section 21 of the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992 transferring the aforesaid cases to the Tribunal. It is against that order that the petitioners herein have approached this Court by invoking the provisions of Section 115 of the Civil Procedure Code contending that the Civil Court is competent to decide the application for execution of the award and the Civil Court is competent to make the award of the Arbitrator as a rule of the Court.

3. On behalf of the petitioners learned Advocates Mr. R.N. Singh and Mr. R.R. Shah submitted that since the award was already declared by the Arbirator before the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992 came into force, the Civil Court was competent to proceed with the said proceeding as it was required to pass only final order by making the award of the Arbitrator a rule of the Court. Messrs. R.N. Singh and R.R. Shah relied upon the decision of the Apex Court in the case of U.P. State Sugar Corporation. Ltd. v. Jain Construction Co. : AIR 2004 SC4335 , wherein while interpreting the provisions of Arbitration and Conciliation Act, 1996, the Apex Court found that the application for appointment of arbitrator filed and the arbitral proceedings were set in motion prior to commencement of the 1996 Act, the provisions of the 1940 Act would apply and the provisions of the 1996 Act would not be applicable in such cases. In this behalf, the Apex Court referred to Section 85(2)(a) of the 1996 Act, which reads as under:

85. Repeal and savings : (1) The Arbitration (Protocol and Convention) Act, 1936 (VI of 1937), the Arbitration Act, 1940 (X of 1940) and the Foreign Awards (Recognition and Enforcement) Act, 1961 (XLV of 1961) are hereby repealed.

(2) Notwithstanding such repeal,

(a) The provisions of the said enactment shall apply in relation to arbitral proceedings which commenced before this Act came into force unless otherwise agreed by the parties, but this Act shall apply in relation to arbitral proceedings which commenced on or after this Act comes into force;

(b) all rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this Act, be deemed respectively to have been made or issued under this Act.

Considering the said aspect, the Supreme Court in the aforesaid judgment held that the proceeding under the Old Act were maintainable as proceedings commenced before the 1996 Act came into force.

4. However, so far as Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992 is concerned, Section 21 provides for as under:

21. The provisions of the Arbitration Act, shall insofar as they are inconsistent with the provisions of this Act, cease to apply to any dispute arising from a works contract and all arbitration proceeding in relation to such dispute before an arbitrator, umpire, Court or authority shall stand transferred to the Tribunal.

5. In the case of Sardar Construction Co. v. State of Gujarat : [1999]1SCR233 , the Supreme Court considered Section 21 of Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992 and has held as under:

the award in the present, though given prior to 1-1-1994 which is the date of commencement of the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992, had not obtained finality at the time when the said Act came into force. Under Section 21 of the said Act, the provisions of the Arbitration Act shall, insofar as they are inconsistent with the provisions of the Act, cease to apply to any dispute arising from a works contract and all arbitration proceeding in relation to such dispute before an arbitrator, umpire, Court or authority shall stand transferred to the Tribunal. In the present case, the arbitration proceedings in relation to the dispute were pending before the Court, and hence, the High Court has rightly transferred these proceedings to the Tribunal. Under Section 8 of the said Act on reference to the Tribunal, the Tribunal has to make an award which shall be deemed to be a decree within the meaning of Section 2 of the Civil Procedure Code, 1908 and it shall be executed accordingly.

6. In the case of V. Laxmikant and Co. v. State of Gujarat and Anr. 2000 (2) GLR 1441, a Division Bench of this Court has held as under in Para 9:

9. From the above discussion, it is clear that according to the learned single Judge, even if the award was passed by Tribunal under 1940 Act, till such an award became rule of the Court or decree, the proceedings could be said to be pending, xxx xxx.

Considering the aforesaid aspect of the matter, the submissions of learned Advocate for the applicant to the effect that the ratio of the judgment of the Apex Court in the case of if. P. State Sugar Corporation. Ltd. v. Jain Construction Co. (supra) would apply to the present cases cannot be accepted, as no such saving clause is available under the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992. The point in issue, in view of the judgment of the Supreme Court in the case of Sardar Construction Co. v. State of Gujarat 1999 (3) SCC 144, is already been concluded. The proceedings pending before the Civil Court for enforcement of the award are also required to be transferred to the Tribunal in view of Section 21 of the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992.

7. Under the circumstances, it cannot be said that the learned Civil Judge has committed any error of law or of jurisdiction which is required to be corrected by this Court in these Revision Applications. The proceedings pending before the Civil Court shall now be transferred to the Tribunal and the Tribunal shall decide the same in accordance with law keeping in mind Section 8 of the Act which shall be deemed to be a decree meaning of Section 2 of the Civil Procedure Code.

8. All these Revision Applications are rejected. Rule is discharged. Interim Relief stands vacated forthwith. No order as to costs.

9. Considering the fact that the proceedings are very old, the Tribunal may dispose of the cases as early as possible, and in any event, within a period of six months from the date of receipt of the writ of this Court.

Same Court & Year Gujarat · 2006 Same Parties B. Patel and Co. and ;mangal Construction Co. vs State of Guj... Same Subject Arbitration Same Judge P.B. Majmudar, J. Acts & Sections Arbitration Act, 1940; Gujarat Public Works Contracts Dispute...

Arbitration