Ghateshwar (Ghatadi) Seva Sastha, a Registered Public Trust Under Bombay Public Trusts, Act, Through Its Chairman Shri Kisanji S/O Sadashio Giradkar Vs. Shri Hemant S/O Vinayakrao Purohitr, - Court Judgment

Excerpt:
- section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - (2) the names of the employees in aided schools, whose services stand terminated in accordance with sub-rule (1) on account of de-recognition and who are not directly responsible for such de-recognition, shall be taken on a waiting list by the education officer in the case of primary and secondary schools or by the deputy director in the case of higher secondary schools and junior college of education, and same shall be recommended by him to the managements of newly opened aided schools or of the existing aided schools which are allowed to open additional divisions or classes for consideration. ..6. it is well settled that the interpretation which furthers the policy and object of the act i.a.b. chaudhari, j.1. being aggrieved by the judgments and orders, dated 29.4.2000, passed by the presiding officer, school tribunal, nagpur in seven appeals preferred by seven employees, holding termination of service effected by the petitioner illegal and directing the management to pay compensation equal to salary of 24 months and costs of rs. 2000/-of each appeal in exercise of power under section 11(f) of the maharashtra employees of private schools (conditions of service) regulation act, 1977 (hereinafter referred to as 'act'), these writ petitions were filed in this court.2. in support of the writ petitions, learned counsel for the petitioner argued that the tribunal has found fault with the action of the petitioner -management in making/offering payment of three months' salary in lieu of three months' notice as contemplated by rule 25a of the maharashtra employees of private schools (conditions of service), rules, 1981 (hereinafter referred as to as 'rules') only on the ground that the said rule provides for notice of three months but does not provide for salary of three months in lieu thereof. according to learned counsel for the petitioner, this is the only point on which termination of service of these employees have been held to be illegal and consequently, the tribunal awarded compensation equal to the salary of 24 months. according to him, giving notice of three months does not yield any monetary benefit to the employee on the date of issuance of such notice while making payment of three months' salary at a time on the date of issuance of notice of termination in lieu of three months' notice results into lump sum payment of salary of three months to employee and therefore, by no means it could be inferred that the petitioner -management committed any illegality. according to him though there is no provision for payment of three months' salary in lieu of three months' notice in rule 25a of the m.e.p.s. rules that by itself will not make the termination illegal. for this purpose, he relied on the decision of the supreme court in the case of pramod jha and ors....versus...state of bihar and ors. reported in 2004 (supp.) bom.c.r. 721. he then argued that in the alternative the school tribunal could not have exercised its power under section 11(2)(f) of the act and without prejudice to the first contention, recourse to section 11(2)(e) of the act could at the most be taken in ordering compensation.3. per contra, advocate shri joshi holding for advocate shri mardikar for respondents -employees argued that the tribunal has rightly held that in the absence of any provision of making payment of salary for three months, the petitioner management could not have done so, it could have only given a notice of three months and the object of giving such notice is to give sufficient period to the employee to search out another employment. he also filed common short note of written argument repeating the said contention and supporting the judgment of the tribunal.4. heard learned counsel for the rival parties. it is not in dispute that by the order made by the competent authority the school in which the employees were working was closed down and that is why the employees were required to face termination. it is also not in dispute that the petitioner -management had sent demand drafts of salary of three months to all these employees simultaneously with the termination order issued to them.5. rule 25a of the maharashtra employees of private schools (conditions of service) rules, 1981 reads thus:25a. termination of service on account of abolition of posts : (1) the services of permanent employee may be terminated by the management on account of abolition of posts due to closure of the school after giving him advance intimation of three months to the effect that in the event of closure of the school, his services shall automatically stand terminated. in the case of closure of school due to de-recognition, such advance intimation of three months shall be given by the management to the permanent employees after receipt of a show cause notice from the deputy director.explanation : for the purpose of this sub-rule, the expression, 'closure of the school' shall include,(i) voluntary closure by the management of the entire school if it is imparting instruction through one medium or a part of the school comprising one or more media of instruction if it is imparting instruction through more than one medium; and(ii) closure of the school due to de-recognition by the department. (2) the names of the employees in aided schools, whose services stand terminated in accordance with sub-rule (1) on account of de-recognition and who are not directly responsible for such de-recognition, shall be taken on a waiting list by the education officer in the case of primary and secondary schools or by the deputy director in the case of higher secondary schools and junior college of education, and same shall be recommended by him to the managements of newly opened aided schools or of the existing aided schools which are allowed to open additional divisions or classes for consideration.perusal of the above said rule shows that three months' advance intimation or advance notice is required to be given to employee in the eventuality of closure of school. this rule does not speak of payment of salary of three months in lieu of such three months' notice. but then it cannot be forgotten that by receiving salary of three months in lump sum simultaneously with the termination order such employee is in fact benefited since he gets the three months' salary in lump sum instead of getting the same spread over the period of three months. the observations made by the hon'ble supreme court in paragraph no. 10 of the said supreme court judgment, cited by learned counsel for petitioner are quoted as under:10. ...the underlying object of section 25f is twofold. firstly, a retrenched employee must have one month's time available at his disposal to search for alternate employment, and so, either he should be given one month's notice of the proposed termination or he should be paid wages for the notice period. secondly, the workman must be paid retrenchment compensation at the time of retrenchment, or before, so that once having been retrenched there should be no need for him to go to his employer demanding retrenchment compensation and the compensation so paid is not only a reward earned for his previous services rendered to the employer but is also a sustenance to the worker for the period which may be spent in searching for another employment....6. it is well settled that the interpretation which furthers the policy and object of the act i.e. more beneficial to the employee has to be preferred. in my opinion, therefore, making payment of three months' salary at a time in lump sum simultaneously with the termination order rather than giving him notice of three months and paying salary spread over three months would be more beneficial to the employee. no purpose would be served by interpreting that the management should give three months' notice and should not pay salary of three months in lieu of three months' notice. for the above reasons, therefore, disagreeing with the view taken by the tribunal that in the absence of provision for payment of three months' salary, the petitioner could not endeavour to pay the same, i hold that making payment of three months' salary would further the purpose and object underlying the provision. in paragraph no. 8 of the judgment of the tribunal, there is a finding of fact recorded by the tribunal that the employees did not receive salary in lieu of notice. this appears to be incorrect because the petitioner- management had sent demand drafts of salary of three months to the employees and report of the concerned clerk who attempted to serve the same on them was not disputed before the tribunal. the fact of offer of three months' salary has also not been disputed before me by the learned counsel for the employees. for all the reasons, therefore, i hold that the termination that was effected by the petitioner -management giving advance salary of three months in lieu of three months' notice was legal, correct and proper. in the result, i make the following order.order(i) writ petitions are allowed.(ii) the impugned judgments and orders, dated 29.4.2000, made by the presiding officer, school tribunal, nagpur in appeal nos. stn/95 of 1996, stn/97 of 1996, stn/92 of 1996, stn/91 of 1996, stn/96 of 1996, stn/93 of 1996 and stn/94 of 1996 are quashed and set aside. the appeals preferred by the respondents -employees stand dismissed. rule is made absolute in the above terms. to costs.no order as