Century Textile and Industries Ltd. Vs. Bhagirathmal D. Sharma and anr. - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - it is therefore necessary to examine the petitioners' case for approval of the action of dismissal of the respondent-employee on the touchstone of law laid down in the case of jaipur bank (supra). it would not be necessary to consider the findings recorded by the enquiry officer as well as the evidence leading to the said findings as the industrial tribunal has held the enquiry to be vitiated and a de novo enquiry was conducted before the tribunal into the charges. if it was the case of the respondent that any of the scrap dealers men were loading the unauthorised material in the truck, he could have immediately complained/reported to mr. the security jamadar in his depositions before the court clearly stated about the reluctance of insan ali to open the rear plank of the truck. the unauthorised material which was loaded in the truck clearly went to show that it was by design and not accidentally.b.h. marlapalle, j.1. this petition arises from the order passed by the industrial tribunal of maharashtra at thane on 10th march, 1995 in application (it) no. 4 of 1989. the petitioner employer had filed the said application under section 33(2)(b) of the industrial disputes act, 1947 (for short 'the act') seeking approval for the action of dismissal of the respondent-employee from service by way of punishment in the pending reference (it) no. 51 of 1982.2. the respondent was employed as an attendant in the bardana department (of scrapyard) of the petitioner-company and he was issued a charge-sheet on 17th february, 1987 for the acts of misconducts while on duty, under clause no. 24(d) and 24(m) of the model standing orders applicable to him i.e. theft, fraud or dishonesty in connection with the employer's business and gross negligence. it was alleged that truck no. mms-2411 had come to the factory for loading of scrap material and the respondent-employee who was responsible for the supervision of the loading of the said material conspired with the scrap dealer mr. insan ali and mr. d. b. waghmare, watchman on duty and loaded additional material namely bearings, m.s. pipe, copper tubes, brass valve and many other items as listed in the annexure to the charge-sheet. the said truck was checked by the security jamadar when it was going out of the factory gate at about 4.30 p.m. on 28th january, 1987 and it was found that much more material then what was required to be loaded as scrap the panchnama was drawn in the presence of the store-in-charge and security officer who submitted his report based on which disciplinary action was initiated against the respondent and mr. waghmare. joint enquiry was ordered against both the employees. mr. waghmare resigned from the service of the company and disciplinary proceedings were continued against the respondent. the enquiry officer submitted his findings on 2nd january, 1989 and the order of dismissal came to be passed on 28th august, 1989. the approval application under section 33(2)(b) of the act came to be filed on the same day before the industrial tribunal.3. by its order dated 3rd september, 1991, the tribunal held that the enquiry conducted into the charges levelled against the respondent was vitiated and the petitioner was directed to lead evidence to prove the charges and lead evidence de novo. consequently, the management exam d three witnesses i.e. omprakash joshi - cw no. 2, mr. jagat narayan jha cw no. 3 and mr. satish chandra laroiya cw no. 4. the respondent employee examined himself as dw no. 1. on perusal of the oral and documentary evidence, the tribunal concluded that there was no direct evidence against the respondent to hold that he had unloaded the additional material which was unauthorised. the tribunal also noted that the respondent was convicted by the j.m.f.c. ulhasnagar in criminal case no. 81 of 1987 and was sentenced to suffer imprisonment till the rising of the court and a fine of rs. 500/-. the tribunal reiterated that there was no direct evidence that the respondent-employee had engaged himself in commission of the alleged misconduct and therefore, as per the tribunal, though the procedural requirements were fulfilled by the company while making the application, the said application was required to be rejected as the charges were not proved.4. the scope and ambit of the powers under section 33(2)(b) of the act has been reiterated by the constitution bench in the case of jaipur zilla sahakari bhoomi vikas bank v. shri ram gopal sharma and ors. reported in : (2002)illj834sc in the following words:-whether an application is made under section 33(2)(b) proviso, the authority before which the proceedings is pending for approval of the action taken by the employer as to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied or not etc. it is therefore necessary to examine the petitioners' case for approval of the action of dismissal of the respondent-employee on the touchstone of law laid down in the case of jaipur bank (supra). it would not be necessary to consider the findings recorded by the enquiry officer as well as the evidence leading to the said findings as the industrial tribunal has held the enquiry to be vitiated and a de novo enquiry was conducted before the tribunal into the charges.it is necessary to examine whether the charges were prima facie proved, the action of the employer in awarding the punishment was bona fide and the employee was not sought to be victimised or there was no case of unfair labour practice at the hands of the employer.it is therefore necessary to consider the evidence of the petitioner company through its witnesses and the oral testimony of the respondent so as to examine whether the charges were reasonably proved.5. there is no dispute that the respondent was on duty on 28th january, 1987 in the general shift and he was responsible for the scrap yard section of bardana department which was under mr. omprakash joshi, cw no. 3 who was working as a sr. stores officer, mr. insan ali, the scrap dealer had brought truck no. mms-2411 along with 5-6 loaders, a driver and cleaner to take away the scrap as was authorised in terms of the sale note. the general shift duty hours were from 8.15 a.m. to 5.00 p.m. and the truck entered the security gate between 9.30 to 10.00 a.m along with mr. insan ali and his gang. mr. waghmare, watchman was assigned the duty to accompany the truck for loading of the authorised scrap material under the supervision of the respondent and accordingly, the respondent employee and mr. waghmare were present till the truck was loaded by about 4.00 p.m. at the same time between 00.15 to 1.00 p.m there was a lunch break. in his deposition, mr. omprakash joshi describes the duty of the respondent in the following words :-his duty was to receive scrap from various departments and with the help of workers make lots of the scrap received to segregate them and to keep them lot wise for sale purpose. he has to supervise the sale of the scrap material too when the trucks are coming to the factory for loading. when the lots were ready, he was giving us quantity of the materials for calling the tenders for various scrap materials including scrap material of metal godown no. 140 where metal and ball-bearings and other previous metal which were kept under lock and key and during duty hours, the key of the same godown was always with him from 8.15 to 5 p.m.... when the material was being loaded, the opponent had to ensure that goods mentioned in the same lot must be loaded in the truck. he had to remain present there physically to see that no unauthorised goods are being loaded in the truck. the opponent is required to accompany the loaded truck to the weighing bridge and they bring the slip of payment in the office of the store officer. there is no dispute that the excess and unauthorised material as found in the truck was as listed in the annexure to the charge-sheet and the respondent employee admitted in his depositions before the tribunal that the work of loading was going on in his presence. however, he denied the charges only by stating in the cross-examination that it was not his duty to remain present and to supervise that proper material should be loaded in the lorry. this was an utterly false plea taken by the respondent, if regards he had to his duties as a stores attendant, in bardana department of the company.6. the security jamadar mr. jagat narayan jha pointed out the procedure to be followed for the loading of trucks and scrap materials in the following words in his deposition before the tribunal.when the vehicle comes for collecting scrap material, we take entry of the empty vehicle and its weight is done. when the vehicle reaches the yard, the memo is sent to the security for checking the material to be loaded in the vehicle. the store attendants points out that the watchman as to which material should be loaded. on the basis of the sale note, the lots prepared for the loading are known to the attendant of bardana department. regarding the instance of 28th january, 1987 he stated that the truck of mr. insan ali had come for collecting the scrap as per the memo received, mr. waghmare, watchman was sent to the scrap yard along with the truck and loaded vehicle came to the gate between 4.00 to 4.30; the watchman on the gate inspected the vehicle and mr. insan ali was asked to open the rear plank of the truck but mr. insan ali refused to do so. however, after sometime, the driver opened the plank and the security jamadar described the extra material noticed by him in the truck as under :-i saw m.s. pipes kept in the truck. inside the m.s. pipe, there was a stainless steel pipe. when i asked insan ali as to how the stainless steel pipe was loaded, though it was not mentioned in the challan, he told me that by mistake, his labours must have loaded it. on further verification, it was found that three more pipes were inside the m.s.pipes. i told him that it cannot happen by mistake and intention of theft appears from the fact that they were kept inside the m.s. pipes. then i climbed in the truck. i found a tank kept just behind the driver's cabin and it was steel coated. there were so many gunny bags inside the tank. after this, the security jamadar unloaded the truck in presence of mr. joshi and mr. loraia and sizable quantity of unauthorised material was noticed over and above the scrap material mentioned in the sale note.7. the security officer cw no. 4 had ordered personal search of mr. waghmare the watchman and a chit with the telephone number of mr. insan ali was found in his pocket. in his report exhibit c-28, the security officer had noted that on investigations, he gathered that mr. waghmare was to meet mr. insan ali at the instance of the respondent after duty hours. it has also come in his evidence that the value of the unauthorised material was in the range of rs. 10,000/- to rs. 12,000/-.8. though the respondent was acquitted by the sessions court, after the impugned order was passed by the tribunal, that itself would not influence the findings into the charge-sheet issued by the petitioner. the respondent was the store attendant responsible for the bardana section. it was his duty to ensure that the scrap material was loaded in the truck by the labourers of the scrap dealer strictly as per the sale note. the respondent was present throughout when the truck was loaded except the lunch hours and it has come on record that during the lunch break, the truck was not loaded. after the truck was loaded at about 4.30 p.m. he took it to the first weigh bridge then to the other scrap yard and brought it back to the 2nd weigh bridge. gate slips at exhibit.c-14 and c-15 were prepared by him and placed before mr. joshi, the sr. store officer. they were signed by mr. joshi. the unauthorised material found in the truck was not from any other scrap yard than the bardana department and obviously, the said truck had gone to the bardana department for getting loaded as per the sale note and had come back to the security gate at about 4.30 p.m. after it was cleared by the respondent. if it was the case of the respondent that any of the scrap dealers men were loading the unauthorised material in the truck, he could have immediately complained/reported to mr. joshi and in fact, at the first instance, he could have forbidden them from doing so. the rules of evidence are not strictly applicable to the departmental enquiries which are conducted into the charges of misconduct. the guilt of the charge-sheeted employee is required to be gathered from the preponderance of evidence. mr. waghmare and the respondent - both were the employees of the petitioner company but at the same time, the respondent was given the responsibility of loading the scrap dealers truck strictly as per the sale note and he allowed unauthorised material to go into the truck and but for the security check at the exit, the said material could have escaped. the security jamadar in his depositions before the court clearly stated about the reluctance of insan ali to open the rear plank of the truck. the unauthorised material which was loaded in the truck clearly went to show that it was by design and not accidentally. the respondent was a party to the said design and therefore, the management was justified in coming to the conclusion that he connived with the scrap dealer to load unauthorised material. this was nothing short of theft of the company's property. it is not the case of the respondent-employee that he was an office bearer of the union and he was sought to be targeted or victimised in some way or the other because of his union activities. the tribunal fell in manifest error in holding that the respondent-workman was not guilty on the ground that there was no direct evidence. it was not necessary to prove before the tribunal that the respondent workman had loaded the unauthorised material by his own hands and somebody had seen him while doing so. the company proved that the unauthorised material was allowed to be loaded in connivance and with specific intentions to cause loss to the company. this evidence as recorded before the tribunal prima facie proved the charges levelled against the respondent vide the charge-sheet dated 17th february, 1987 and therefore, the impugned order of the tribunal rejecting the approval application is unsustainable and deserves to set aside under the powers of superintendence under article 227 of the constitution.9. however, while admitting this petition by the order dated 18th february, 1997, this court refused the prayer for interim relief, possibly on the ground that the respondent was already re-instated pursuant to the letter dated 20th april, 1995 addressed to him by the petitioner. there is no dispute that the respondent has been in employment after the impugned order was passed and he is due to retire on 30th september, 2005 i.e. within few days. as the approval application was rejected by the impugned order dated 10th march, 1995, the order of dismissal would be deemed to have not been passed and the employee would be deemed to have continued in service without any interruption from the date of the dismissal order, as per the law laid down in jaipur bank (supra). in the instant case, the order passed by the tribunal rejecting the approval application has been held to be unsustainable and warrants interference under article 227 of the constitution of india. in the peculiar facts of this case, his dismissal cannot be taken backwards and when he is due for retirement on reaching the age of superannuation towards the end of this month. the learned counsel for the petitioner states that he was not paid the wages for the intervening period and therefore, he has filed complaint ulp no. 376 of 1996 for the recovery of wages and the complaint is still pending. the company has deposited half of the wages in the industrial court and the respondent has already withdrawn the same. he would not be entitled for any wages as prayed in the pending complaint. at the same time, no recoveries would be made from him having regards to his impending retirement soon on reaching the age of superannuation on 30th september, 2005.10. in the premises, the petition succeeds and the same is hereby allowed partly. the impugned order passed by the industrial tribunal is hereby quashed and set aside, save and except the clarification set out hereinabove and it is made clear that there would not be any recovery from his salary for the period he was reinstated and continued till his retirement. the amount withdrawn by him from the industrial court need not be recovered. the petitioner may apply for the dismissal of the said complaint.11. rule is made absolute in the above terms but without any order as to costs.