Kansai Nerolac Paints Limited Vs. Paints Employees Union - Court Judgment

Excerpt:
labour and industry - wages - section 25-o of the industrial dispute act (act), 1947 - petitioner applied under section 25-o of said act for permission to close lower parel unit - application allowed by commissioner of labour - respondent union applied for review - commissioner declined to review and referred matter to industrial tribunal - industrial tribunal ordered that petitioners not entitled to effect closure of its lower parel establishment - hence, present petition - specified authority rejected application for review - whether specified authority could have referred matter to industrial tribunal for adjudication? - held, specified authority could not have referred this matter to tribunal in exercise of its power under section 25-(5) of act - reference to tribunal was not competent - petition succeeds. - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be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. - - (i) an employer who intends to close down an undertaking of an industrial establishment to which this chapter applies shall, in the prescribed manner, apply, for prior permission at least ninety days before the date on which the intended closure is to become effective, to the appropriate government, stating clearly the reasons for the intended closure or the undertaking and a copy of such application shall also be served simultaneously on the representatives of the workmen in the prescribed manner: 3. this contention is clearly supported by the judgment of the supreme court in the case of cable corporation of india (supra), interpreting section 25-n(6), which reads as follows: the order clearly says no to the application for review and yes to the reference under section 25-o(5) of the i.s.a. bobde, j.1. this writ petition is filed by the employer challenging the order dated may 5,2007 passed by the industrial tribunal, maharashtra, holding that the petitioners are not entitled to effect closure of its lower parel establishment and directing them to pay full wages to all the concerned workmen with effect from february 2, 2003. the petitioner had applied under section 25-o of the industrial dispute act (for short 'i.d. act') for permission to close its lower parel unit. that application was allowed on march 27, 2003 by the commissioner of labour. on april 15, 2003 the respondent union applied for review or reference of the permission of closure under section 25-o(5) of the i.d. act. on april 24, 2003, the commissioner labour who is the specified authority under section 25-o declined to review permission for closure and instead referred the matter to the industrial tribunal for adjudication. the question is whether by. declining to review, the specified authority has rejected the application for review. therefore, whether the specified authority could have thereafter referred the matter to the industrial tribunal for adjudication under section 25-o(5) of the i.d. act.2. mr. cama, the learned counsel for the petitioners submitted that the order of the industrial tribunal rejecting the petitioners application for closure is passed without authority of law since the order making the reference dated april 24, 2003 was itself without authority of law and incompetent. the learned counsel relies on section 25-o(5) of the act and the decision of the supreme court in cable corporation of india ltd. v. raditional commissioner of labour and ors. : (2008)iillj1057sc interpreting an identical scheme section 25(n) of the i.d. act. section 25-o(5) reads as follows:25-o. procedure for closing down an undertaking.- (i) an employer who intends to close down an undertaking of an industrial establishment to which this chapter applies shall, in the prescribed manner, apply, for prior permission at least ninety days before the date on which the intended closure is to become effective, to the appropriate government, stating clearly the reasons for the intended closure or the undertaking and a copy of such application shall also be served simultaneously on the representatives of the workmen in the prescribed manner: provided that nothing in this sub-section shall apply to an undertaking set up for the construction of buildings, bridges, roads, canals, dams or for other construction work.(2) ...(3) ...(4) ...(5) the appropriate government may, either on its own motion or on the application made by the employer or any workman, review its order granting or refusing to grant permission under sub-section (2) or refer the matter to a tribunal for adjudication.provided that where a reference has been made to a tribunal under this sub-section, it shall pass an award within a period of thirty days from the date of such reference.in short the submission on behalf of the petitioner is that specified authority could have on the respondents application either reviewed the order of the company granting or refusing to grant permission for closure or refer the matter to a tribunal for adjudication. it had no authority to reject the application for review and refer the matter to the tribunal for adjudication.3. this contention is clearly supported by the judgment of the supreme court in the case of cable corporation of india (supra), interpreting section 25-n(6), which reads as follows:25-n: conditions precedent to retrenchment of workmen. - (1) no workman employed in any industrial establishment to which this chapter applies, who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until:(a) ...(b) ...(2) ...(3) ...(4) ...(5) ...(6) the appropriate government or the specified authority may, either on its motion or on the application made by the employer or any workman, review its order granting or refusing to grant permission under sub-section (3) or refer the matter or, as the case may be, cause it to be referred, to a tribunal for adjudication.provided that where a reference has been made to a tribunal under this sub-section, it shall pass an award within a period of thirty days from the date of such reference.4. in the case before the supreme court both the application for review and the application for reference has been rejected. however, the high court had directed that a reference be made. the supreme court' reversed the order of the high court holding that the appropriate government could either review the matter or refer the matter to the tribunal. it could not do both. the supreme court in paragraph 15 observed as follows:15. a plain reading of the provision makes the position clear that two courses are open. power is conferred on the appropriate government to either on its own motion or'; on an application made, review its order or refer the matter to the tribunal. whether one or the other of the courses could be adopted depends on the fact of each case, the surrounding circumstances and several other relevant factors.there is no reason why section 25-o(5) should not be construed similarly. in the present case, it is clear that the respondents union applied for a review of the order granting permission for closure and in the alternative prayed for a reference of the dispute to the specified authority. the specified authority considered the application and declined a review in the following words:.i am also of the opinion that the applicant union has not made out a case for review of the order dated march 27,2003.instead it referred the matter under section 25-o(5) of the act, in the following words:.hereby referred under section 25-o(5) of the said act to the industrial tribunal, mumbai consisting of smt. s.v. ayarekar.5. ms. doshi, learned counsel for the respondent submitted that the order of the specified authority cannot be construed as an order rejecting the respondents application for review but is liable to be construed only as an order giving reasons why the authority decided to refer the matter under section 25o-o(5) of i.d. act. it is not possible to construe the order in the manner suggested by the learned counsel for the respondents. the order clearly says no to the application for review and yes to the reference under section 25-o(5) of the i.d. act.6. at this juncture, it may be noted that the respondents had not disputed before the tribunal that commissioner of labour decided the review application on merits and declined to call back his order of granting permission to close down the lower parel unit.7. it was next contended on behalf of the respondent that if the order is to be construed as an order rejecting the review, the respondents would be entitled in law to challenge that order and might still challenge that order. the respondents are certainly free to take such steps as may be advised in regard to the order but as a fact today there is no challenge to the order and therefore this submission does not merit any consideration.8. the learned counsel for the respondent next contended that the order dated april 24, 2003 allegedly declining review cannot be said to be in accordance with the law. the learned counsel relied on the judgment of the supreme court in orissa textile & steel ltd. v. state of orissa and ors. 2002 i llj 858 in paragraph 16, the supreme court observed as follows:.as submitted by the learned attorney general, in a review the appropriate government would have to make an enquiry into all necessary/acts, particularly into the genuineness and adequacy of the reasons stated by the employer. an opportunity of being heard would have to be given to the employer, workmen and all interested persons. the order on review would have to be in writing giving reasons.in any case its validity has not been questioned by the respondent and it is not necessary to deal with this question. it must be noted that the learned counsel for the respondent urged this court to decide the entire controversy in the matter and not merely the competence of the tribunal to go into the reference. it is obviously not necessary to do so, if the reference is found to be incompetent. it was pointed out on behalf of the respondent that the petitioners have further purported to effect the closure to their undertaking lower parel unit after the closure in dispute under section 25-ffa of the i.d. act and therefore the validity of the entire order of the tribunal should be decided in this matter. the subsequent closure is not in issue in these proceedings.9. mr. cama, the learned counsel for the petitioners submitted that the subsequent closure has been effected without prejudice to the rights under the earlier permission. however, it appears that there is no reason why the entire controversy should be decided if it is seen that the reference was not competent.10. in this view of the matter, i am of opinion that the specified authority could not have referred the matter to the tribunal in exercise of its power under section 25-(5) of the i.d. act, having rejected the application for review. the power of the specified authority to deal with and decide an application made to it under section 25-(o) stood exhausted on the rejection of the review application and a reference to the tribunal thereafter was not competent.11. in this view of the matter, the petition succeeds. rule is made absolute in terms of prayer clause (a), which reads as follows:(a) that this honourable court be pleased to issue a writ of certiorari or a writ in the nature of certiorari of any other writ, order or direction under article 226 of the constitution of india, calling for the records and proceedings of reference (it) no. 37/2003 from the office of the trial court and after examining the legality, validity and/or propriety of the impugned award dated may 5, 2007 and after hearing all the parties to the petition, quash and set aside the impugned award dated may 5, 2007, which is annexed at exhibit 'r' hereto;12. at the request of the learned counsel for the respondents, the petitioners shall not withdraw the bank guarantee furnished by them for a period of six weeks from today.