Getwell Board and Paper (Pvt.) Ltd. Vs. FakruddIn S. Lokhandwala 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - like the executing court in execution proceedings governed by the code of civil procedure, the labour court under section 33-c(2) would be competent to interpret the award on which the claim is based, and it would also be open to it to consider the plea that the award sought to be enforced is a nullity. the ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under section 33-c(2) of the act. it is only when the entitlement has been earlier adjudicated or recognized by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the labour court power under section 33-c(2) like that of the executing court's power to interpret the decree for the purpose of its execution.d.g. karnik, j 1. heard counsel.2. by this petition the petitioner challenges the judgment and order, dated 2 march, 2005, passed by respondent no. 2, the labour court, mumbai, awarding the respondent no. 1 a sum of rs. 14,10,000 by allowing his application under section 33-c(2) of the industrial disputes act (for short the act).3. according to respondent no. 1 (for short the respondent), his services were terminated by the petitioner in may, 1989. the petitioner disputed this and contended that the services of the respondent were not terminated but he abandoned the service in may, 1999. the respondent approached the labour commissioner for conciliation. in the conciliation proceedings he did not press the claim for reinstatement in service but claimed rs. 2 lakhs as arrears of commission allegedly payable to him. the conciliation officer recorded that the respondent had refused to join the duties but had claimed rs.2 lakhs as commission and therefore the matter could not be settled. the conciliation officer has accordingly directed the respondent to approach the appropriate court for resolution of the dispute. the respondent thereafter filed an application under section 33-c(2) of the act claiming rs. 16,60,000 as arrears of commission due and payable to him for the period from 1990 to 1999. by its judgment and order, dated 2nd march, 2005, the labour court directed the petitioner to pay the respondent a sum of rs. 14,10,000 by way of commission. that judgment is impugned in this petition.4. learned counsel for the petitioner submitted that the respondent himself had initially approached the labour commissioner (conciliation officer) for reinstatement. before the conciliation officer the respondent refused to rejoin the service which was offered by the petitioner but demanded a sum of rs.2 lakhs by way of arrears of commission. he was therefore advised to approach the appropriate court. thereafter the respondent made a huge claim of rs. 14,16,000 by way of commission, inconsistent with his claim before the conciliation officer where he had firstly claimed reinstatement, then claimed rs.2 lakhs by way of commission. thus the case of respondent was inconsistent and the labour court ought not to have granted any relief to the petitioner.5. counsel for the petitioner further submitted that the claim made by respondent of rs. 16,60,000 was untenable. the petitioner had never agreed to pay any commission to the respondent. the fact that the respondent was making. a claim of commission for the period from the year 1990 to 1999 shows that no commission was never paid to him during this particular period, that is during the entire period of employment. he further submitted mat the petitioner had denied the claim of the respondent and he was not entitled to make a claim in an application under section 33-c(2) of the act. according to him section 33-c(2) of the act applies only in respect of claims which were admitted or adjudicated upon in the past. in this connection he relies upon the decisions of the supreme court in bombay gas company v. gopal bhiva and ors. : 1963 (7) flr 304(sc), municipal corporation of delhi v. ganesh razak and anr. 1995 (1) lln 402, and state of uttar pradesh and anr. v. brijpal singh : 2005 (107) flr 604(sc).6. in bombay gas company (vide supra), the supreme court held that the proceedings contemplated by section 33-c(2) are analogous to execution proceedings and in those proceedings it is open to the labour court to compute in terms of money the benefit claimed by an industrial employee, while interpreting the award. in para 7 of the judgment the supreme court observed:the proceedings contemplated by section 33-c(2) are, in many cases, analogous to execution proceedings, and the labour court which is called upon to compute in terms of money the benefit claimed by an industrial employee is, in such cases, in the position of an executing court; like the executing court in execution proceedings governed by the code of civil procedure, the labour court under section 33-c(2) would be competent to interpret the award on which the claim is based, and it would also be open to it to consider the plea that the award sought to be enforced is a nullity.7. in municipal corporation 1995 (1) lln 402 (vide supra) the supreme court held that the labour court had no jurisdiction to adjudicate upon and decide the workmen's entitlement and then proceed to compute the benefit so adjudicated. it is only when the entitlement has been earlier adjudicated or recognized by the employer then for the purpose of implementation or enforcement thereof application can be made under section 33-c(2). in para. 12, at page 407 of its judgment the supreme court held as follows:.the ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under section 33-c(2) of the act. the labour court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under section 33-c(2) of the act. it is only when the entitlement has been earlier adjudicated or recognized by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the labour court power under section 33-c(2) like that of the executing court's power to interpret the decree for the purpose of its execution.8. in state of uttar pradesh and anr. v. brijpal singh : 2005 (107) flr 604 (sc), (vide supra), the supreme court observed in para. 6, at page 607, of its decision, as follows:.this court in the case of punjab beverages (private), ltd., chandigarh v, suresh chand : 1978 (36) flr 383 (sc), held that a proceeding under section 33-c(2) is a proceeding in the nature of execution proceeding in which the labour court calculates the amount of money due to a workman from the employer, or, if the workman is entitled to any benefit which is capable being computed in terms of money, proceeds to compute the benefit in terms of money. proceeding further, this court held that the right to the money which is sought to be calculated or to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the industrial workman, and his employer....9. it is thus clear that where the right to claim made by an industrial employee is disputed the labour court would not be entitled to adjudicate upon the same. when the right to a claim is crystallized either by an earlier award or is admitted by an employer but is not paid the labour court would get jurisdiction to pass an order under section 33-c(2). similarly where any benefit which can be computed in terms of money has already been adjudicated upon or is admitted by an employer the labour court can compute the value. where the right claimed is disputed the claim must be established by the industrial employee in an appropriate proceeding earlier. section 33-c(2) can be used for the purpose of computing the previously adjudicated or admitted claim.10. in the present case the claim of the employee was denied by the employer. initially he claimed reinstatement, then commission of rs. 2 lakhs and then rs. 16,60,000. the claim was never admitted by the employer and was disputed. the labour court could not have grantee the claim in an application under section 33-c(2) of the act. the labour court lacked jurisdiction to entertain such a claim and pass an order. for these reasons the petition is allowed. rule is made absolute in terms of prayer clause (a) with costs.