Executive Engineer, Med. Proj. Dvn. and anr. Vs. Member, Industrial Court 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - this court went through the entire record as well as the impugned orders. that is not the spirit of the policy or the legislative intention in incorporating certain provisions in the maharashtra project affected persons rehabilitation act, 1986. if such a course is permitted, the very object of the said legislation would be defeated. it is a trite law that in matters of welfare legislation, especially involving labour, the terms of contracts and the provisions of law should be liberally construed in favour of the weak. 21 on 4-6-1996 the respondents have failed to produce the demanded documents. 9. the above findings of facts recorded by the courts below are based on the evidence oral as well as documentary and preponderance of probabilities.a.b. chaudhari, j.1. rule returnable forthwith. heard finally by consent of the parties.by these two writ petitions, the petitioners have challenged common judgment and order dated 21-1-2002, passed by the judge, labour court, nagpur and confirmed in revision on 14-1-2004 by the industrial court, nagpur.2. the respondent no.2 in both these writ petitions filed complaints i.e. complaint (ulp) nos. 30/1990 and 31/1990 in the labour court at nagpur, alleging therein that they were appointed initially on 14-7-1985. they worked under the petitioners until they were orally terminated w.e.f. 27-10-1989. according to them no seniority list was published as required by rule 81 of the industrial disputes (bombay) rules, 1957 before the termination nor the procedure required by section 25-f and 25-g of the industrial disputes act, 1947 was followed and on the contrary juniors to them were retained in the employment. according to them the work was available even at the time of termination of their services and, therefore, the termination was made for patently false reasons. they then averred that both of them were the projected affected persons and were appointed by the petitioners in that category of employment and as such their services could not have been terminated, they being in the said category. as per policy decision of the government in lieu of the land taken from them, they are required to be provided employment on permanent basis. they then alleged that the officers of the petitioners realizing this position even issued a letter dated 17-3-1989 for continuing their services. the petitioners filed their reply to the application under section 30(2) of the act which was subsequently adopted as written statement. it was stated that the complainants were engaged on daily wages and were terminated w.e.f. 2-11-1989 due to completion of project work. they did not complete 240 days of continuous service. the petitioners, however, admitted that the complainants being project affected persons were entitled to employment on priority basis and in accordance with the provisions of section 6(b) and (c) of the maharashtra project affected persons rehabilitation act, 1986. the petitioners then denied the claim of the complainants. the learned labour court after hearing the parties allowed the complaints and set aside the termination orders and directed their reinstatement with continuity of service with full back wages w.e.f. 27-10-1989. the petitioners challenged the said judgment of the labour court before the industrial court by filing revision but the same was partly allowed by the industrial court only insofar as the claim of award of back wages is concerned and reduced the same to 25%, but the order of reinstatement was maintained. hence, these writ petitions.3. since mr. j.t. gilda, the learned counsel for the petitioners remained absent and this court had refused adjournment under a separate order. this court heard learned a.g.p. for respondent no. l and learned counsel for respondent no. 2 in both these writ petitions. this court went through the entire record as well as the impugned orders. now in view of the admitted position that the respondents complainants were projected affected persons whose lands were taken by the government for project and that they were appointed in that category, having once appointed them, they could not have been terminated. even assuming that the work was not available in a particular project that could not be a ground for terminating their services and on the contrary in that case they were required to be absorbed in some other project or establishment. having lost their lands forever, the petitioners cannot be allowed to make a show of appointing them for three years and thereafter ask them to go away. that is not the spirit of the policy or the legislative intention in incorporating certain provisions in the maharashtra project affected persons rehabilitation act, 1986. if such a course is permitted, the very object of the said legislation would be defeated. the provisions of section 6(a)(b) and (c) of the said act read thus;section 6(a) to carry out such work for providing the necessary civic amenities in a new gaothan or the extension of an existing gaothan, as the case may be, established for rehabilitation of affected persons, as may be entrusted to it by the state government or the commissioner or the collector;(b) to take measures for the speedy rehabilitation of the affected persons under the overall supervision and guidance of the collector;(c) subject to any reservations validly made, to give highest priority in class iii and class iv category of service on the project establishment to at least one person from the family of the affected person, if such person is eligible for such employment according to the recruitment rules for such posts.4. in view of the above provisions and in view of the admitted fact that the complainants were appointed in that category, i do not think the petitioners could have at all endeavoured to terminate their services. doing so would be violating the mandate of law. the reduction of back wages to 25% by the industrial court in this peculiar situation is in my opinion absolutely uncalled for, but i cannot modify the said revisional order as there is no petition from the respondent complainants before me. the lands of the respondents complainants were acquired by the government for project and in terms of the said legislation they were also appointed but then they were suddenly asked to go. it is not the case of the petitioners that the lands which were acquired by the government and which were their source of income were returned to them. the said legislation is a welfare legislation and is a sort of compassion being shown to the person whose land is taken by the government for project depriving him of his source of livelihood. this compassion shown by the government is in the form of legislation and the petitioners cannot be allowed to defeat the will of the legislature. in shri ram krishna dalmiya and ors. v. shri justice s.r. tendolkar and ors. reported in : [1959]1scr279 , the constitution bench said thus;that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds.in the case of indian bank v. k. usha and anr. reported in : [1998]1scr358 , the hon'ble supreme court in paragraph no. 14 held thus ;14. in this connection we must also have to keep in view the settled legal position that while construing any scheme in connection with the question of providing compassionate appointments to the heirs of deceased employee who was the breadwinner and whose exit had left his heirs in the lurch and in precarious and vulnerable economic position a construction which fructifies such a welfare measure has to be preferred as compared to another construction which stultifies such a benevolent welfare measure. in this connection learned senior counsel for the respondents was right when she relied upon a decision of this court in the case of workmen v. binny ltd. in that case a bench of three learned judges of this court speaking through khalid, j., had to consider the provisions of a scheme of amalgamation of companies concerned under the orders of the high court. while interpreting the scheme of amalgamation which had an impact on the question of welfare of employees, the following observations were made in para 9 at p. 330 of the report:.it is a trite law that in matters of welfare legislation, especially involving labour, the terms of contracts and the provisions of law should be liberally construed in favour of the weak.5. further in the case of u.p. drugs and pharmaceuticals co. ltd. v. ramanuj yadav and ors. reported in : (2003)iiillj1064sc , the hon'ble apex court in paragraph no. 10 held thus;10...the approach to be borne in mind while interpreting the welfare legislation is illustrated in surendra kumar verma v. central govt. industrial tribunal-cum-labour court where this court has observed that semantic luxuries are misplaced in the interpretation of 'bread-and-butter' statutes. welfare statutes must, of necessity, receive a broad interpretation. where legislation is designed to give relief against certain kinds of mischief, the court is not to make inroads by making etymological excursions.6. now on the above aspects regarding employment as a project affected person, in the light of above provisions, there is a finding of fact recorded by the labour court in paragraph nos. 32 and 34 of its judgment on the basis of certificates exh.32 and 22 that the respondents were appointed as such. the said finding of is neither perverse nor incorrect. in my opinion, therefore, without going to the other aspects of the matter on this very ground the termination of the services of complainants was required to be declared as unfair labour practice being in undue haste and for patently false reasons.7. now coming to the very first ground taken in the petition and considering the judgment of the supreme court in the case of state of gujarat and ors. v. pratamsingh narsinh parmar reported in : (2001)illj1118sc , it is seen that the petitioner did not at all take stand that it is not 'industry' in the reply written statement and thus no dispute arose whether petitioner is an industry or not. had the petitioners raised a serious dispute by elaborating the pleadings in defence as to how and why it is not industry, then in that case a positive assertion in the positive facts were requested to be placed before the court by the complainant. paragraph 5 of the said judgment opens with the sentence if a dispute arises as to whether a particular establishment or part of it wherein an appointment has been made is an industry or not, it would be for the person concerned who claims the same to be an industry, to give positive facts for coming to the conclusion that it constitutes 'an industry'. that apart in that case a writ petition was directly filed by the employer in the high court while the proceedings in the instant case were instituted before labour court where a full dressed trial took place. the petitioner did not even lead evidence to that effect nor any issue arose or was framed. hence, the decision of the supreme court in the case of parmar has no applicability.8. it appears from the ground raised that the complainants did not complete 240 days of continuous service and that they did not discharge burden of proving that they were employed for 240 days in one year of continuous service. now that is a factual aspect which should not detain me since finding of fact has been recorded by the courts below concurrently that they completed 240 days, but even then i feel it necessary to quote certain paragraphs from the impugned judgments.the labour court has recorded finding of fact about it in paragraph nos. 23 and 24 of its judgment, which read as under;23. the record of the complaint (ulpa) no. 30/90 exh.21 crystal clear indicate that the complainant had requested for issuance of direction to produce muster roll against the respondents for the period 1-7-1985 to 31-12-1985. in spite of this direction vide order below exh.21 on 4-6-1996 the respondents have failed to produce the demanded documents. had those documents been produced the position could have been crystal clear. further, the respondents have not even cared to reply the application exh.21. therefore, an adverse inference can be safely drawn that it is because the complainants had served the respondents continuously for 240 days. the respondents did not produce muster roll for the period 1-7-1985 to 31-12-1985, because, it would go against their defence it been produced.24. the witness of the respondents in cross-examination at exh.37 submits that he had no authority to depose on behalf of the respondents. if it is this position, his evidence cannot be believed and relied upon. similarly, he admits that he was not in katol sub-division between july, 1985 to february, 1989. therefore, he cannot tell whether the complainants were engaged in katol sub-division between july, 85 to february, 89. therefore, he cannot tell whether the complainants were engaged in katol sub-division on this count also his evidence cannot be accepted.the following extract from paragraph nos. 7 and 8 of the order of the industrial court would also be relevant.7...the respondents have filed the extract of 1989 only. no other earlier extract is filed. therefore, the complainant allegation that they worked more than 240 days in the preceding year has to be accepted.8. the employer has come with a case that the complainants voluntarily left the job. there is no cogent and clinching material on record to prove abandonment. if that is accepted that will be a ground for consideration of claim of back-wages. but that does not absolve the liability of the respondents to comply with the legal provisions.9. the above findings of facts recorded by the courts below are based on the evidence oral as well as documentary and preponderance of probabilities. there is no reason for me in the writ jurisdiction to re-examine the same over and again. these findings are, therefore, confirmed.10. that i have already held that the respondent complainants being the project affected persons could not have been deprived of employment with the petitioners in such an undue haste and without understanding the nature of their employment under a beneficial legislation. the fact however remains that they have been without employment from 1989 till this date and shockingly enough the industrial court has reduced the amount of their back wages to 25%.11. this case does not fall in the categories mentioned by the hon'ble supreme court in the case of j.k. synthetics ltd. v. k.p. agrawal and anr. reported in : (2007)iillj128sc , where the back wages could either be denied or reduced. on the contrary, this is a patent case where there is gross injustice and violation of a beneficial legislation by government department itself. instead of accepting the judgment of the courts below, the petitioners have been litigating and the respondents complainants have been deprived of their livelihood for over 18 years. i, therefore, find that this is a fit case for imposing compensatory costs on the petitioners so that the respondent complainants who have been deprived of 75% back wages without any justification can be slightly compensated. hence, the following order.12. both these writ petitions are dismissed with costs of rs. 20,000/- each to be paid to the respondents complainants within a period of six weeks from today.13. the petitioners to reinstate the respondents complainants and to comply with the orders of the courts below within a period of six weeks from today.rule accordingly.