Lily Babu Vs. Municipal Commissioner and ors. - Court Judgment

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labour and industrial - date of birth - section 28 of maharashtra recognition of trade unions and prevention of unfair labour practices act, 1971 - apart from affidavit of petitioner and certificate said to have been issued by notary no proof in regard to date of birth was produced - there is also no explanation as to why two birth certificates were produced one disclosing name of person whose birth was recorded and other disclosing name 'a. lily' - there is also no evidence produced by petitioner to show that name 'a lily' in said birth register is name of petitioner herself - name of petitioner is 'lily babu' - there is nothing on record to disclose that two names refers to one and same person - in view of above no fault can be found with impugned order rejecting claim of petitioner for change in date of birth. - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be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. - however, the petitioner was in fact born on 8-12-1945 and therefore based on circular dated 10-3-1986 the petitioner requested the respondent-corporation to make necessary changes in her service records in relation to the date of birth of the petitioner but the same was illegally refused by the respondents and further the petitioner was served with the retirement memo dated 1-10-1996 stating that she would stand retired with effect from 1-10-1996. the refusal to carry out the necessary corrections in the service records pertaining to the date of birth of the petitioner inspite of documentary evidence having been produced in support of the claim of the petitioner in that regard is totally in violation of the circular of the corporation dated 10-3-1986, and therefore it clearly amounts to unfair labour practices being adopted towards the petitioner by the corporation and ignoring the same the complaint having been rejected, according to the petitioner, the impugned judgment warrants int however, the said circular clearly laid down a cut off date to enable the employees to seek corrections in relation to their birth dates and accordingly the applications were required to be submitted latest by 15-9-1986. undisputedly, the petitioner joined the services of the corporation on 1-8-1977, yet the petitioner did not chose to file any application for correction of her date of birth on or before 15-9-1986. the application was filed as late as 22-2-1994 i.khandeparkar r.m.s., j.1. heard the learned advocates for the parties. perused the records.2. the petitioner challenges the order dated 16-4-2001, passed by the industrial court, mumbai, rejecting complaint (ulp) no. 44 of 1998 filed by the petitioner. the grievance of the petitioner is that though initially she had disclosed her date of birth to be 22-9-1938 on the basis of the school leaving certificate. however, the petitioner was in fact born on 8-12-1945 and therefore based on circular dated 10-3-1986 the petitioner requested the respondent-corporation to make necessary changes in her service records in relation to the date of birth of the petitioner but the same was illegally refused by the respondents and further the petitioner was served with the retirement memo dated 1-10-1996 stating that she would stand retired with effect from 1-10-1996. the refusal to carry out the necessary corrections in the service records pertaining to the date of birth of the petitioner inspite of documentary evidence having been produced in support of the claim of the petitioner in that regard is totally in violation of the circular of the corporation dated 10-3-1986, and therefore it clearly amounts to unfair labour practices being adopted towards the petitioner by the corporation and ignoring the same the complaint having been rejected, according to the petitioner, the impugned judgment warrants interference by this court.3. while assailing the impugned order, the learned advocate appearing for the petitioner, submitted that though the rejection of the application for correction of the birth date of the petitioner was on the ground that the application was not in consonance with the circular dated 10-3-1986 and though the corporation had never raised any doubt regarding the genuineness of the birth certificate submitted by the petitioner, the industrial court erred in going into the issue regarding the genuineness of the birth certificate and thereby rejecting the complaint of the petitioner on that count. according to the learned advocate, therefore, the industrial court has acted illegally and the rejection of the complaint cannot be sustained in the facts and circumstances of the case.4. perusal of the records disclose that undoubtedly there was a circular dated 10-3-1986, issued by the corporation, permitting the employees of the corporation to produce evidence regarding the correct date of birth of its employees and to seek necessary correction, if any, in their service records in relation to their birth dates based on cogent evidence. however, the said circular clearly laid down a cut off date to enable the employees to seek corrections in relation to their birth dates and accordingly the applications were required to be submitted latest by 15-9-1986. undisputedly, the petitioner joined the services of the corporation on 1-8-1977, yet the petitioner did not chose to file any application for correction of her date of birth on or before 15-9-1986. the application was filed as late as 22-2-1994 i.e., hardly two years prior to the date of her retirement in terms of the date of birth of the petitioner disclosed by her at the time of joining the services of the corporation. the corporation rejected the application as the same was not in accordance with the said circular dated 10-3-1986. it is not the case of the petitioner that apart from the said circular there was any other provision which entitled the petitioner to seek change in the birth date of the petitioner in the service records of the corporation. there is also no explanation on record as to why the application for change in the date of birth was submitted as late as in the year 1994, hardly two years prior to the date of retirement based on the date of birth disclosed by the petitioner at the time of entering in the services of the corporation.5. undoubtedly, the industrial court has considered the aspect of genuineness of the birth certificate produced by the petitioner along with her application. however, the rejection of the complaint has not been solely on the ground of doubt about the genuineness of the said certificate. the industrial court has also considered the other aspects of the matter, including the ground on which the application was rejected by the corporation and has found no fault with the decision of the corporation in that regard as the same does not disclose any illegality.6. it was also sought to be contended that similar application filed by one dr. irani was entertained much after the expiry of the cut off date disclosed in the circular dated 10-3-1986. the industrial court while dealing with the said contention has observed that the delay in respect of the application by dr. irani was condoned taking into consideration the circumstances in which the delay had occurred in filing the application by dr. irani and considering the same it has held that there is not an iota of evidence to show any discrimination shown to the petitioner while rejecting her application. it is pertinent to note that initially the date of birth of the petitioner was recorded in the service records of the petitioner with the corporation based on the school leaving certificate produced by the petitioner herself at the time of her joining the services. though two documents, called birth certificates, stated to have been issued by the registering authority of the government of tamil nadu were produced, it is apparent from the records, and indeed the industrial court has analysed those materials in detail, and the same disclose that one of the birth certificates did not disclose the name of the person whose birth was recorded while the other certificate disclosed the name 'a. lilly'. in one certificate details regarding the sex of the person born, name of the father/mother and the permanent address has been recorded in tamil while in the other certificate the same has been recorded in english language. however, as regards the date of birth, the registration number and the date of registration does not make any difference and while the second certificate was issued on 26-8-1994, the other was issued on 5-10-2000. it appears that it was sought to be contended before the industrial court that the date of birth and the date of registration was as per the malabar era and not as per the christian era. however, apart from the affidavit of the petitioner and the certificate said to have been issued by the notary from tamil nadu, no proof of whatsoever nature in that regard was produced. that apart, there is no explanation as to why two birth certificates were produced, one disclosing the name of the person whose birth was recorded and the other disclosing the name 'a.lilly'. there is also no evidence produced by the petitioner to show that the name 'a.lilly' in the said birth register is the name of the petitioner herself. undisputedly, the name of the petitioner is 'lilly babu'. there is nothing on record to disclose that 'lily babu' and 'a. lilly' refers to one and the same person. being so, no fault can be found with the impugned order rejecting the claim of the petitioner that by rejecting the application of the petitioner for change in the date of birth, the corporation had indulged itself in unfair labour practice towards the petitioner and for the same reason no fault can be found with the impugned order dismissing the compliant filed by the petitioner.7. as there is neither any illegality committed by the industrial court in dismissing the application, nor the impugned order discloses any finding contrary to the materials on record, nor it discloses any arbitrary exercise of jurisdiction, there is no justification for interference therein in writ jurisdiction and hence the petition fails and is dismissed with no order as to costs. the rule is discharged.