Petroleum Employees Union Vs. Chief Labour Commissioner 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - the petitioner-union filed this petition and obtained interim order as a result of which the process of secret ballot is not completed and the petitioner-union continues to enjoy the status of recognized union.1. the petitioner-trade union by this petition challenges the process initiated for verification of the membership of the trade union operating in the establishment to find out which trade union commands support of the majority of the workers. the case of the petitioner-trade union in nutshell is that they had given their consent for carrying out process of verification of membership of trade union by secret ballot pursuant to the judgment of this court in writ petition no. 1785 of 1997 dated 5th may, 1998 (oil and natural gas commission karmachari sanghatana v. ministry of petroleum) and as now by its judgment in the case {air india employees guild v. air india ltd.) reported in : 2007(1) bom.c.r. (f.b.) 529, the full bench of this court has overruled the judgment of the division bench in writ petition no. 1785 of 1997 dated 5th may, 1998, now the process of verification of membership of the trade union by secret ballot system cannot be carried out. in our opinion, the petition cannot be entertained for various reasons. firstly, the case of the petitioner that it had given its consent for verification of the membership of the trade union by system of secret ballot after the order dated 5th may, 1998 was made in writ petition no. 1785 of 1997, is false. perusal of the minutes of the meeting held with the presiding and the general secretaries of the recognised unions in oil and natural gas corporation dated 13th july, 1996 shows that the president of the petitioner association participated in that meeting. the relevant portion of the resolution no. 2 reads thus:the method of recognition by secret ballot was agreed upon by all the recognized unions except representative of ongc employees union, tripura who were of the view that it may not be possible to conduct free and fair elections in view of the prevailing law and order situation at agartala.then the resolution recites thus:after detailed discussions, it was agreed as under:(i)....(ii) verification of trade unions would be done through secret ballot in accordance with the procedure issued by the ministry of labour, government of india.it is, thus, clear from this document that the consent was given by the petitioner-trade union for secret ballot system even before the writ petition no. 1785 of 1997 was filed in this court. perusal of the judgment in writ petition no. 1785 of 1997 shows that the petition was filed not by the petitioner-union but by the respondent no. 10 trade union and the petitioner- trade union was respondent no. 6 in that petition claiming that the process of verification of the membership of the trade union should be decided by system of secret ballot. strangely it appears that though the petitioner-trade union had given its consent in the year 1996 as it is evident from the resolution quoted above, the petition was opposed by the petitioner-union. the division bench, however, relying on the judgment of the supreme court in the case [food corporation of india staff union v. food corporation of india and ors.] : 1995 dgls (soft) 236 : a.i.r. 1995 s.c. 1344, upheld the contention of the trade union which was petitioners in the petition and directed that the process of verification of membership should be carried out by the system of secret ballot. it is pertinent to be noted here that oil and natural gas commission had already adopted as a matter of policy the system of verification of membership of trade union by secret ballot. perusal of the manual for recognition of trade union placed before us shows that there is clear statement made to that effect which reads as under:the adoption of the process of secret ballot, for ascertaining the majority character of a union before conferring/changing the recognition to a union is now the policy of ongc the guidelines issued by the corporate ir in this connection in december, 1998, have also been incorporated in this chapter.it is, thus, clear that the system of secret ballot has been adopted by ongc as a matter of policy. in the petition, there is no challenge to the policy. in our opinion, unless the policy adopted by ongc is challenged and an order is sought for setting aside that policy, the process of secret ballot initiated pursuant to the policy decision cannot be set aside.2. so far as the reliance placed on the judgment of the full bench is concerned, in our opinion, merely because the full bench has said that the law laid down by the division bench in the above referred judgment is overruled, will not take away the binding effect of the writ issued by the division bench. the judgment of the division bench will continue to bind the parties to the writ petition though the law on the basis of which that writ was issued has been subsequently found to be erroneous by the full bench. it is further to be noted here that the full bench in paragraph (6) of its judgment has held that the directions issued by the supreme court in the case food corporation of india referred to above, are not relevant because they are based on the consent of the parties, and therefore, according to the full bench, the judgment of the supreme court in the case food corporation of india does not lay down any law. what is to be seen here is that even according to the full bench if the system of secret ballot is introduced because of the consent of the trade unions involved, then that system can go on, unless the policy decision which was taken by the corporation on the basis of the consent given by the parties is set aside by the appropriate court of law. in the present case as noted above, the petitioner-union had itself given its consent, in the year 1996 and also subsequently, for adoption of the secret ballot system and therefore, in our opinion, what is said by the supreme court in the judgment in the case food corporation of india referred to above will be relevant in this case and not that is said by the full bench in its judgment in the air india employees guild referred to above. what is further pertinent to be noted is that the petitioner-union was recognized as majority union by the employer pursuant to the secret ballot held in the year 2004 for a term of two years. that term of two years is over and therefore, the process of secret ballot was initiated again. the petitioner-union filed this petition and obtained interim order as a result of which the process of secret ballot is not completed and the petitioner-union continues to enjoy the status of recognized union. in our opinion, this conduct of the petitioner-union disentitles it to any relief at the hands of this court in its extraordinary jurisdiction. if it was genuinely felt by the petitioner-union that the system of secret ballot is invalid, it first should have given up its status as recognized union and then should have filed this petition. the conduct of the petitioner of enjoying the status of recognized union which is secured by it by following the same system and then challenging it and preventing further verification of membership, in our opinion, disentitles the petitioner to any relief. the petition, in our opinion, therefore, deserves to be rejected. it is accordingly rejected.3. at this stage, a request is made that the process of holding the verification should be stayed. in our opinion, that will not be proper because the petitioner is enjoying the status of recognized union though the term is over long back. the process has also been completed, only the ballots have to be opened now. the request is rejected.parties to act on the copy of this order duly authenticated by the associate/private secretary of this court.