Bank of Maharashtra Vs. Bank of Maharashtra Karmachari Sangh - Court Judgment

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labour and industrial - promotion - workman charge-sheeted and enquiry held against him - warning given to him - workman not promoted to post of special assistant - workman raised industrial dispute contending that his junior was promoted - respondent union referred dispute for adjudication to industrial tribunal - industrial tribunal allowed reference by directing petitioner bank to promote workman - petitioner bank directed to pay special allowance to workman -present appeal challenging award - held, impugned award directing petitioner to promote workman upheld - direction to pay him special allowance modified - petition partly allowed - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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. - the 1983 settlement clearly provides that an employee who is disqualified since a departmental enquiry was initiated against him, cannot be offered the post of special assistant for a period of six months in case he is punished for a minor' misconduct.nishita mhatre, j.1. the petitioner bank has taken exception to the award dated december 7, 1995 passed by the central government industrial tribunal no. 2 in reference (ida) no. cgit-2/31 of 1991. by this award, the tribunal has allowed the reference and has held that the action of the petitioner bank in promoting the juniors of c.b. bahaddarpurkar (hereinafter referred to as the workman) is not justified. the petitioner bank has been directed to pay special allowance to the workman from august 1, 1984 to november, 1991 within two months from the date of the award. costs of rs. 300/- has also been awarded.2. a settlement was arrived at between the petitioner bank and the union representing the employees of the bank in various cases on july 8,1978. it was with respect to filling in the posts of special assistants. clause 9 of the settlement provides that, the groupwise seniority list should be prepared of all candidates as on december 31, of each year. the settlement of 1978 was then replaced by a settlement dated august 24, 1983. by the 1983 settlement, clause 5 disqualifies those employees who were charge-sheeted or who have been punished after a departmental enquiry from; being offered the post of special assistant. clause 5 reads as under:5.(a) in case of an employee who is charge-sheeted, he/she shall not be offered the post of special assistant till such time the enquiry on the charge-sheet is over.(b) in case of an employee against whom a departmental enquiry was instituted and is punished he/she shall not be offered the post of special assistant for a period of 6 months in case he/she is punished for minor misconduct. in case of an employee who is punished for major misconduct and is awarded a punishment other than dismissal or discharge he/she shall not be offered the' post of special assistant during the period when he/she is undergoing the punishment.clause 6 of this settlement provides that if an employee who is otherwise eligible is not offered the post of special assistant in terms of clause 5, then a candidate junior to him may be appointed to the post for a temporary period. however, that candidate is required to be informed that his appointment to the promotional post is temporary and would be withdrawn in case the original candidate, who was disqualified, regains qualification under clause 5. a subsequent settlement of 1988 disqualifies the candidate for promotion to the post of special assistant for one year if the candidate has been awarded punishment pursuant to the departmental enquiry.3. bearing in mind these clauses of the aforesaid settlements, it would be necessary to advert to the facts in the present case which are undisputed.4. the workman was charge-sheeted and an enquiry was held against him. the charge-sheet is dated may 3, 1978. the departmental enquiry initiated against the workman resulted in him being punished with a warning on april 14, 1984. the order was communicated to the workman on april 25, 1984. the workman was not promoted to the post of special assistant in accordance with the settlement of 1983. therefore he raised an industrial dispute contending that his junior had been promoted as a special assistant, contrary to the provisions of the settlement in vogue. as the company did not pay heed to the demand of the workman to promote him, the respondent union sought a reference for adjudication of the dispute on behalf of the workman. the dispute was referred for adjudication to the central government industrial tribunal.5. parties filed their pleadings before the court. the petitioner bank contended in its written statement that since the workman was charge-sheeted on may 3, 1978, it was the 1978 settlement which governs him and not the 1983 settlement. it was further contended that, assuming the 1983 settlement governed the employee, he would be entitled to be considered for promotion only in the year 1985 because the warning letter had been issued on april 25,1984. it was contended that under the 1978 settlement, the list of candidates eligible for promotion was to be finalised by december 31 of each year and hence the workman's name could have been included only in the list for 1985 as he would be eligible on december 31, 1984 to be included in the list of 1985. it is then pleaded that, in any event, a subsequent settlement of 1988 disqualifies the workman from getting any relief with respect to promotion as a special assistant for a period of one year after being issued a letter of warning. it is also pleaded that from 1985 to 1989 there was no vacancy for the workman to be promoted as a special assistant.6. the industrial tribunal has upheld the contention of the respondent union and has allowed the reference by directing the petitioner bank to promote the workman w.e.f. august 1,7. mr. damle has submitted that the tribunal had erred in interpreting the settlement in the manner it has done. he submits that since the employee was charge-sheeted on may 3, 1978, he would be governed by the settlement of 1978 and not the 1983 settlement and, therefore, the petitioner bank had rightly ignored the claim of the workman. the settlement of 1978 stipulated that the seniority should be drawn up with respect to the employees who are eligible for being promoted to the post of special assistant as on december 31, of each year, points out the learned advocate. he submits that since the workman was not eligible for being promoted in 1984, his name was not included in the list of january 1, 1984.8. the first submission of the learned advocate for the petitioner bank that 1978 settlement governs the workman and that, therefore, he would not be entitled to be included in the list of employees who are eligible to be appointed as special assistant as on january 1, 1984 cannot be accepted. the workman would be governed not only by the 1978 but also of 1983 settlement. the 1983 settlement clearly provides that an employee who is disqualified since a departmental enquiry was initiated against him, cannot be offered the post of special assistant for a period of six months in case he is punished for a minor' misconduct. in the present case, the workman was warned and, therefore, obviously he was punished for a minor misconduct. the warning letter was issued on april 14, 1984 and for six months thereafter the workman was not eligible for being considered for appointment to the post of special assistant. however, thereafter he would be entitled to be posted as a special assistant in view of the terms of clause 6 of the settlement. clause 6 reads as under:clause 6. temporary posting of special assistant. an employee who is otherwise eligible but is not offered post of special assistant in terms of clause no. 5 mentioned above, in such an eventuality the post remaining vacant shall be filled by the next eligible candidate from the concerned group. such a posting shall be on purely temporary basis. as and when the original candidate who was earlier disqualified, qualifies for the posting as special assistant he/she shall be offered the post of special assistant and the employee working in his/her place on temporary basis shall be withdrawn and shall be posted back at his original place of working.thus, on august 1, 1984 when his junior mr. joshi was appointed to the post on august 1, 1984 the workman was not eligible for being considered for promotion to the post of special assistant. under clause 6, mr. joshi ought to have been informed that he was liable to be posted back in his original post once the workman had qualified for being posted as a special assistant. in the present case, there is no dispute that the petitioner has not complied with clause 6 of the settlement of 1983. therefore, the continuation of mr. joshi in the place of the workman beyond october 25,1984 was unjustified as held by the industrial tribunal. the six months' period subsequent to imposition of the punishment ended on october 25,1984, admittedly.9. the industrial tribunal has however committed an error by directing the bank to pay special allowance to the workman from august 1,1984.1n terms of clause 5 of 1983 settlement he was eligible for promotion only in october, 1984 and not before that. in view of this situation, while the award with regard to the unjustified promotion of the junior employee, superseding the claim of the workman mr. c.b. bahaddarpurkar, is upheld, the direction to pay him the special allowance from august 1,1984 is modified. the workman shall be entitled to the special allowance from october 25,1984.10. accordingly the award is modified as aforesaid. rule made absolute partly. no costs.