National Aviation Company of India Ltd. Vs. Amit Kumar S/O Nibal Chand - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - 195/- is completely unsustainable because the tribunal has failed to appreciate that the respondent was not entitled to payment of the special allowance of rs. clearly, before the tribunal the respondent did not lead any evidence to establish that he was entitled to rs. clearly if the respondent had pleaded that he was not paid full wages because he was not paid the special allowance to which he was entitled, burden was upon him to establish that he was entitled to special allowance and yet was not paid that allowance.s.a. bobde, j.1. this is a writ petition by the employer challenging the order of the national industrial tribunal, mumbai, dated august 19, 2004 rejecting their application under section 33(2)(b) of the industrial disputes act, 1947.2. the petitioner-employer sought approval of its order dated june 24, 2002 whereby respondent-workman was removed from service. the workman was served with charge sheet dated april 4/may 1, 1996 for allegedly unauthorisedly opening the short haul operations department (s.h.o.d.) office with a view td disposal of the old vehicles of the office. according to the charge sheet he was apprehended in the process of removing one jeep with the help of two other persons. he had already removed six vehicles, i.e. two maruti 800, one ambassador car, one matador and two jeeps. since the dispute pertaining to conditions of service of workmen of indian airlines was pending before the national tribunal, the petitioner applied under section 33(2)(b) for removing the respondent in pursuance of an enquiry. this application was contested by the workman. the tribunal dismissed this application on the ground that the petitioner had not paid full wages for one month to the workman as required by proviso to section 33(2)(b) of the i.d. act. the tribunal is of opinion that it would have given an opportunity to prove its case afresh on the issue of perversity and violation of principles of natural justice, if this shortfall was not there. hence the question whether the respondent was paid full wages for one month as required by section 33(2) assumes significance.3. mr. dixit, the learned counsel for the petitioner submitted that the special allowance of rs. 195/-, which has admittedly not been paid to the respondent, cannot be treated as wages. however, there is no merit in this contention in view of the definition of wages under section 2rr of the i.d. act, which reads as follows:2rr. 'wages' means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment, and includes-(i) such allowances (including dearness allowance) as the workman is for the time being entitled to;(ii) the value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of foodgrains or other articles;(iii) any travelling concession;((iv) any commission payable on the, promotion of sales or business or both;) but does not include-(a) any bonus(b) any contribution paid or payable by the? employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force;(c) any gratuity payable on the termination of his service;it was next contended on behalf of the petitioner that finding of the tribunal that the respondent was not paid a special allowance of rs. 195/- is completely unsustainable because the tribunal has failed to appreciate that the respondent was not entitled to payment of the special allowance of rs. 195/-. according to the petitioner special allowance of rs. 195/- was payable only to such employees in certain categories who had been granted special allowance of rs. 45/- per month under an earlier settlement dated april 11, 1996, and the respondent was not one of them.4. the special allowance to which the respondent claims entitlement is admittedly allowance provided for in the memorandum of settlement between indian airlines limited and the air corporation employees union; dated february 9, 2001, which reads as follows:special allowance of rs. 45/- per month paid to workmen in the applicable categories shall be increased to rs. 195/- per month with effect from january 1, 1996. this allowance will not be counted as pay for any purpose, whatseover.it is obvious that only workmen who are entitled to a special allowance of rs. 45/-became entitled to the allowance of rs. 195/- by way of an increase.5. therefore, any person claiming that he was not paid rs. 195/- though entitled to must establish that he was entitled to rs. 45/- per month under the earlier settlement. clearly, before the tribunal the respondent did not lead any evidence to establish that he was entitled to rs. 195/- with effect from january 1, 1996. however, the tribunal held that he was not paid the mandatory one month's wages merely because it was established that he was not paid the special allowance of rs. 195/-. the tribunal has rendered this finding inspite of an admission by the respondent that he was not paid rs. 45/- per month. apparently, the tribunal merely considered the settlement and came to the conclusion that item no. (iv)(4) granted a special allowance and every allowance was therefore to be treated as wages.6. as to whether the respondent - workman was at all entitled to the special allowance of rs. 195/- because he had never been paid rs. 45/- under the earlier settlement, the tribunal ignored the issue by observing that the petitioner has not led any evidence to show that the respondent was not entitled to special allowance. apparently, the tribunal cast a negative burden on the petitioner to show that it had not done something. clearly if the respondent had pleaded that he was not paid full wages because he was not paid the special allowance to which he was entitled, burden was upon him to establish that he was entitled to special allowance and yet was not paid that allowance.7. mr. singh, the learned counsel for the respondent however relied on a decision of the supreme court in the case of bharat electronics limited v. industrial tribunal, karnataka, bangalore and anr. : (1990)iillj32sc , where the supreme court observed as follows at p. 38 of llj:18. ...but at the same time it needs to be clarified that it is for the management to establish, when questioned, that the sum paid to the workman under section 33(2)(b) represented full wages of the month following the date of discharge or dismissal, as conceived of in the provision and as interpreted by us in entwining the ratios in bennett coleman case (supra) and dilbagh rai jarry case and adding something ourselves thereto.8. the observations do not apply to the present case. in the present case the management has established by evidence that it had paid what according to it was a full wages. it was workman who had pleaded that he has not been paid something to which he was entitled. in the circumstances the burden was on him to establish that he was entitled to that which has not been paid to him.9. in this view of the matter, i am of the view that the petition must succeed. the impugned order is therefore set aside. the matter is remanded back to the national tribunal to decide the entire matter afresh except the question whether the respondent has been paid wages for one month. all other questions are left open before the tribunal. pending decision of the tribunal, the petitioner shall pay to the respondent a sum of rs. 10,955/- per month as last drawn wages under section 17-b of the i.d. act. rule made absolute in the above terms.