Voltas Limited Vs. Umed Singh Bajetha 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - 1 failed to plead that* the petitioner employed less than 50 persons in the establishment where he was employed. the test would be who would fail if no evidence is led. it is well settled that allegation which is not pleaded, even if there is evidence in support of it, cannot be examined because the other side has no notice of it and if entertained it would tantamount to granting an unfair advantage to the first mentioned party.s.a. bobde, j.1. the petitioner has challenged the judgment of the industrial court under section 28, item 9 of schedule iv of the maharashtra recognition of trade unions & prevention of unfair labour practices act, 1971, hereinafter referred to as 'mrtu & pulp act'. by the impugned judgment, the industrial court has allowed the respondent no. 1's complaint and held that the petitioner is liable to pay full wages to the complainant for the period of his suspension with effect from april 12,2000 after adjusting the payment already made and credit his p.f. account.2. the dispute between the parties arose out of disciplinary proceedings initiated by the petitioner against the respondent no. 1. for the period of suspension, the petitioner paid full wages to the respondent no. 1. later on, the petitioner realised that it had paid more than the respondent no. 1 was entitled to. according to the petitioner, the respondent no. 1 was entitled only to payment in accordance with the industrial employment (standing orders) act. hence, the petitioner initiated recovery proceedings for the amount. the respondent no. 1, therefore, approached the industrial court. in the complaint before the industrial court, the respondent no. 1 failed to plead that* the petitioner employed less than 50 persons in the establishment where he was employed. this pleading was relevant under section 38-b of the bombay shops and establishments act, 1948, which reads as follows:38-5. application of industrial employment (standing orders) act to establishments.- the provisions of the industrial employment (standing orders) act, 1946, in its application to the state of maharashtra (hereinafter in this section referred to as 'the said act'), and the rules and standing orders (including model standing orders) made thereunder from time to time, shall, mutatis mutandis, apply to all establishments wherein fifty or more employees are employed and to which this act applies, as if they were industrial establishment within the meaning of the said act.even though there was no such pleading, the learned industrial court has held that the petitioner employed less then 50 persons in the establishment where the respondent no. 1 was employed. the industrial court has observed that it was not disputed that at the relevant time, the number of employees employed were less than 50. eventually, merely stating that it was not disputed during the course of arguments that less than 50 employees were employed, the industrial court has held that section 38-b applies since there were less than 50 employees. while doing so, the industrial court has completely lost sight of the fact that this fact not having been asserted at all in the complaint, there was no question of the other side not disputing such a fact.3. mr. singh, the learned counsel for the petitioner, relied on the following observations of the supreme court in shankar v. britannia biscuit co. : (1979)iillj194sc :37. if such be the duties and functions of the industrial tribunal or the labour court, any party appearing before it must make a claim or demur the claim of the other side and when there is a burden upon it to prove or establish the fact so as to invite a decision in its favour, it has to lead evidence. the quasi-judicial tribunal is not required to advise the party either about its rights or what it should do or omit to do. obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. the test would be who would fail if no evidence is led. it must seek an opportunity to lead evidence and lead evidence. a contention to substantiate which evidence is necessary has to be pleaded. if there is no pleading raising a contention there is no question of substantiating such a non-existing contention by evidence. it is well settled that allegation which is not pleaded, even if there is evidence in support of it, cannot be examined because the other side has no notice of it and if entertained it would tantamount to granting an unfair advantage to the first mentioned party. we are not unmindful of the fact that pleadings before such bodies have not to be read strictly, but it is equally true that the pleadings must be such as to give sufficient notice to the other party of the case it is called upon to meet. this view expressed in tin printers (pvt.) ltd. v. industrial tribunal , commends to us. the rules of fair play demand that where a party seeks to establish a contention which is proved would be sufficient to deny relief to the opposite side, such a contention has to be specifically pleaded and then proved. but if; there is no pleading there is no question of' proving something which is not pleaded. this is very elementary.32. can it for a moment be suggested that this elementary principle does not inform-industrial adjudication? the answer must be an emphatic 'no'.in view of the aforesaid decision, it is clear that the finding of the industrial court; arrived at without pleadings and evidence is not sustainable.4. mr. ganguli, the learned counsel for the respondent no. 1, however, submitted that, in fact, the parties were alive to the issue whether the number of persons employed were less than 50 or more than 50. he pointed out that the respondent no. 1 even applied for production of documents which would have established whether there were less than 50 workmen in the employment or not. to that application, the petitioner replied that they were not able to place the documents. there is no dispute about the application and the reply. it does appear that the question whether there were 50 or less workmen and whether, therefore, section 38-b of the bombay shops and establishments act makes the industrial employment (standing orders) act applicable was raised before the industrial court.5. in the circumstances, having regard to the fact that the respondent no. 1 was an illiterate workman, i consider it in the interest of justice to give an opportunity to the respondent no. 1 to properly plead and raise the question before the industrial court.6. in the circumstances, the petition is allowed. the impugned judgment of the industrial court is hereby set aside and the matter is remanded back to the industrial court for a fresh decision, in accordance with law, after affording an opportunity to both the parties to amend their pleadings and lead such additional evidence as may be advised. the industrial court shall decide the matter uninfluenced by any observations in this judgment on the merits of the case. the industrial court shall decide the matter not later than six months from the date the parties appear before it. the parties are directed to appear before the industrial court on september 12, 2008.7. the rule is made absolute in the aforesaid terms. no order as to costs.