Vijaykumar Tukaram Kasale Vs. State of Maharashtra 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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.hardas p.v., j.1. rule. rule made returnable forthwith. with the consent of the learned counsel for the parties this petition is heard finally at the stage of admission.2. such of the facts as are necessary for the decision of this writ petition, may briefly be stated thus:on 7.1.1991 the petitioner came to be appointed as a junior lecturer in the savitribai phule high school and junior college at nalgir, dist-latur. it appears that approval came to be granted to the petitioner on year to year basis but the services of the petitioner came to be terminated on 12.6.1999 as the respondent refused to grant approval to the appointment of the petitioner for the reasons which are not germane at this moment. petitioner being aggrieved by this termination filed an appeal before the school tribunal at aurangabad. the school tribunal by its judgment and order dated 14.7.2003 allowed the appeal and directed reinstatement of the petitioner with full backwages. the petitioner consequently came to be reinstated. on the proposal of the management seeking approval to the appointment of the petitioner, approval came to be granted to the petitioner on his reinstatement, by order dated 29.10.2003. the approval was the permanent approval and for full time on the condition that the approval was being granted pursuant to the judgment and order of the school tribunal. the approval, however, came to be granted from 28.7.2003 i.e. the date on which the petitioner came to be reinstated.3. mr. mukul kulkarni, learned counsel for the petitioner has urged before us that the appointment of the petitioner had been approved on year to year basis by the respondents. the fact situation as it was existing at the time of termination of the petitioner, particularly, in respect of the workload, was existing even in october, 2003 when the approval came to be granted to the appointment of the petitioner pursuant to the reinstatment and, therefore, there is no reason as to why the respondents have not granted approval to the appointment of the petitioner w.e.f. the date of his termination as the tribunal has directed his reinstatment by quashing the order of termination. mr. marlapalle, learned counsel for the management, on instructions states that the management would pay the backwages of the petitioner as ordered to be paid by the school tribunal. mr. tambe, learned a.g.p. for the respondents states that on account of absence of adequate workload, the approval to the appointment of the petitioner has been granted from the date of his reinstatement and not from the date of his termination.4. the fact situation as it existed at the time of termination of the petitioner also existed at the time when the approval came to be granted to the petitioner pursuant to his reinstatement. this aspect of the matter is not denied by the respondents. if that be the case, we see no reason whatsoever in not granting approval to the appointment of the petitioner w.e.f. the date of his termination. since reinstatment has been ordered by the school tribunal by quashing the termination order, the petitioner is deemed to be in continuous service and, therefore, in the light of qualification which the petitioner was possessing the approval also need to be continuous. the management has already shouldered its responsibility to pay the backwages and, therefore, the state exchequer is not likely to be burdened for the payment of backwages in the event the approval is granted from the date of the termination of the petitioner.5. in the light of that, therefore, this petition succeeds. this petition is allowed. it is directed that necessary orders be issued by the respondents for granting approval to the petitioner w.e.f. 12.6.1999 instead of granting approval w.e.f. 28.7.2003. other conditions incorporated in the order of approval dated 29.10.2003 remain unaltered. we accept the statement of the respondent management that the entire burden of backwages would be born by the respondent management. mr. marlapalle, learned counsel for the management submits that the management would not submit any proposal to the respondent authorities seeking reimbursement of the payment of the dackwages to the petitioner.8. rule is thus made absolute on the terms indicated above with no order as to costs.