LupIn Laboratories Ltd. and ors. Vs. J.P. Gaikwad and ors. - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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.p.r. borkar, j.1. these two writ petitions are challenging the orders passed by the presiding officer, labour court, aurangabad in reference (i.d.a.) no. 207/1989 decided on november 16,1995 whereby the learned presiding officer directed the first party (i) i.e. the manager, lupin laboratories limited, midc, chikalthana (hereinafter referred to as' lupin laboratories ltd.') to reinstate the second party i.e. jayashri popat gaikwad (hereinafter referred to as 'jayashri gaikwad') within a period of one month from the date of publication of the award and directed party no. 1 (ii), the director, indtek consultant, aurangabad (hereinafter referred to as indtek consultant) to pay party no. 2 jayashri gaikwad full back wages with continuity of service till the date of award within a month, in addition to pay her rs. 500/- towards special compensation.2. the two writ petitions are filed because lupin laboratories ltd. was directed to reinstate jayashri gaikwad and indtek consultant was directed to pay back wages with continuity of service and special compensation.3. both these petitions raise same questions of law and facts.4. it is case of the petitioners that lupin laboratories ltd. is a company manufacturing pharmaceuticals having manufacturing unit at aurangabad. indtek consultants are independent contractor providing security services and (security) personnel on contract at the factory of lupin laboratories ltd. at the relevant time. it is not disputed that jayashri gaikwad was employed as a lady searcher and was deployed and posted at the factory. it is case of both the petitioners lupin laboratories ltd. and indtek consultants that jayashri gaikwad was employed as a lady searcher by indtek consultants and was deployed and posted at the factory of lupin laboratories ltd., and as such jayashri gaikwad was the employee of indtek consultants and not of lupin laboratories ltd.5. it is not disputed that the services of jayashri gaikwad were terminated by indtek consultants with effect from november 24, 1988 and therefore jayashri gaikwad raised industrial dispute challenging the termination of her services demanding reinstatement. reference was made to the labour court, aurangabad under section 10(1) and section 12(5) read with section 2(a) of the industrial disputes act, 1947.6. jayashri gaikwad filed statement of claim before the labour court. lupin laboratories ltd. and indtek consultants also filed their written statement. the written statements filed by lupin laboratories ltd. and indtek consultants are consistent with each other. both have stated that jayashri gaikwad was employed by indtek consultants and not by lupin laboratories ltd. indtek consultants even offered to reinstate jayashri gaikwad during conciliation proceedings, but she refused to accept the offer. she insisted that she is the employee of lupin laboratories ltd.7. in the abovesaid circumstances the obvious question which arises for the consideration of the labour court is - which of the two, namely, lupin laboratories ltd. and indtek consultants, is the employer of jayashri gaikwad. instead of framing such question and answering it in unambiguous words, following four issues were framed by the labour court.1) whether the domestic enquiry against the iind party was fair & proper?2) whether the findings recorded by the domestic tribunal could be doubted as perverse?3) whether the order of termination is legal & proper?4) whether the iind party is entitled to reinstatement, continuity of service and back wages?it answered first two issues as redundant and answered remaining two issues in favour of jayashri gaikwad. ultimately, the presiding officer, labour court has passed the following order.(1) the reference is allowed.(2) the 1st party (i) namely lupin laboratories ltd. midc, chikalthana, aurangabad is hereby directed to reinstate the iind party lady workman by name jayashri popat gaikwad, aurangabad, with it, within a period of one month from the date of publishing of this award. and the party no one (ii) by name indtek consultant, to pay her full backwages with continuity of services till the date of award within a month, in addition to pay her rs. 500/- towards a special compensation.(3) the costs of the litigation should be sustained by all the litigants at their own.8. on the face of it the order is wrong. the judgment does not answer the main question raised by both the petitioners or even by jayashri gaikwad. the order passed itself is inconsistent and contradictory. the labour court has directed lupin laboratories limited to reinstate jayashri gaikwad; whereas it has asked indtek consultants to pay back wages with continuity of service and special compensation, without even realising that these two are independent entities, one claiming to be a contractor of other. it is case of lupin laboratories ltd. which case is accepted by indtek consultants that indtek consultants is the agency providing security services and security personnel and it had provided services of jayashri gaikwad personnel. in the facts and circumstances of the case, there is no way other than to set aside the order of the labour court and to remand the case back to the labour court, aurangabad for framing proper issue as to who is employer of jayashri gaikwad and then to decide it. it is stated by the advocates before me that most of the evidence is already there, but some additional evidence they may think of adducing in view of interim events. in view of the fact that the matter is pending from 1989, it is necessary to expedite the hearing. in the circumstances the following order is passed.(i) both the writ petitions are allowed.(ii) the order passed by the labour court, aurangabad on november 16, 1995 in reference (i.d.a.) no. 207/1989 is hereby set aside. the labour court is directed to take the matter on the file once again, frame necessary issues, give opportunity to the parties to lead additional evidence and then decide the matter afresh, on or before october 31,2008.(iii) the record and proceedings be sent to the trial court forthwith.(iv) the parties are directed to appear before the labour court on july 14, 2008.