Uday Janardhan Kulkarni Vs. Geo-chem Laboratories Pvt. Ltd. - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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 learned advocate for the petitioner takes strong objection to the procedure adopted by the labour court and relies on the judgment of this court in the case of rajiv b. we think it is better that tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. neither the jurisdiction of the high court under article 226 of the constitution nor the jurisdiction of this court under article 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from court to court for adjudication of peripheral issues, avoiding decision on issues more vital to them. after all tribunals like industrial tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so' decide is not to be stifled by all manner of preliminary objections and journey up and down. shah (supra). in my view, this has been the consistent practice which ought to have been adopted by the labour court in the present case as well.nishita mhatre, j.1. the petitioner has challenged the order passed by the labour court directing the parties to lead evidence on the preliminary issue as to whether the petitioner is a 'workman' as defined under section 2(s) of the industrial disputes act. the labour court has observed that other issues would be considered, only if the preliminary issue is answered in favour of the petitioner. the learned advocate for the petitioner takes strong objection to the procedure adopted by the labour court and relies on the judgment of this court in the case of rajiv b. gundewar v. crompton greaves ltd. 2000 iii llj (supp) 774 (bom), as also on the judgment of the supreme court in the case of d.p. maheshwari v. delhi administration : (1983)iillj425sc . he draws my attention to the judgment of the gujrath high court in the case of sarabhai m. chemicals ltd. v. rajnikant v. shah 2008 ii clr 472, and of this court in the case of bata india ltd. v. k.s. shinde in writ petition no. 4834 of 2008. he submits that by deciding only one issue at a time, the litigation would get protracted, which would lead to hardship for the workman.2. the learned advocate for the respondent submits that it is not an inflexible rule that all issues must be decided together. he points out that this is the view taken by a learned single judge of this court in the case of h.s. rawat v. voltas ltd. : (2005)illj448bom . he submits that in the facts and circumstances of the present case, it would be necessary for the petitioner to prove that he is a workman when the petitioner himself has, in his statement of claim, stated that he was a senior accounts officer. he submits that the facts in the present case do not warrant an answer to all issues from the tribunal or labour court and instead the issue regarding whether the petitioner is a workman or not should be decided first. the learned advocate concedes that evidence on all issues may be recorded but submits that if the tribunal concludes that the petitioner is not a workman, there would be no need to answer the other issues regarding termination of service of the petitioner.3. having heard the learned advocates on this issue, the judgment of d.p. maheshwari v. delhi administration, (supra), delivered by a bench of three hon'ble judges of the supreme court continues to hold the field even today. the supreme court has observed thus at p. 4261. ...there was a time when it was thought prudent and wise policy to decide preliminary issues first. but the time appears to have arrived for a reversal of that policy. we think it is better that tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. nor should high courts in the exercise of their jurisdiction under article 226 of the constitution stop proceedings before a tribunal so that a preliminary issue may be decided by them. neither the jurisdiction of the high court under article 226 of the constitution nor the jurisdiction of this court under article 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from court to court for adjudication of peripheral issues, avoiding decision on issues more vital to them. article 226 and article 136 are not meant to be used to break the resistance of workmen in this fashion. tribunals and courts who are requested to decide preliminary questions must therefore ask themselves whether such threshold part adjudication is really necessary and whether it will not lead to other woeful consequences. after all tribunals like industrial tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so' decide is not to be stifled by all manner of preliminary objections and journey up and down. it is also worthwhile remembering that the nature of the jurisdiction under, article 226 is supervisory and not appellate while that under article 136 is primarily supervisory but the court may exercise all necessary appellate powers to do substantial justice. in the exercise of such jurisdiction neither the high court nor this court is required to be too astute to interfere with the exercise of jurisdiction by special tribunals at interlocutory stages and on preliminary issues.4. in the case of r.b. gundewar v. crompton greaves (supra) the learned single judge of this court has observed thus at p. 776 of : (2000)iiillj774bom 7. so far as direction given by the industrial court to the labour court that the said court should frame all issues is concerned, the said direction cannot be faulted and is proper. the further direction given by the industrial court to first decide the issue of workman and if the finding on the said issue is in the negative, the labour court should not decide the remaining issues, cannot be countenanced and needs to be modified. piecemeal decision on the issues always results in protracting the litigation and to avoid that it is always advantageous that all issues are decided together. it is true that the question whether the complainant is workman or not is a vital issue but at the same time, the other issues regarding the legality and correctness of the termination of the complainant needs to be gone into by the labour court also because even if it is held by the labour court that the complainant is not workman, the other issues raised in the complaint are required to be decided because in case the said finding is not upheld ultimately by superior court, the matter may not be required to be remanded for decision on other issues if the other issues are decided by the labour court. the decision of all issues simultaneously shall definitely curtail unnecessary delay in final disposal of the matter. the finding recorded by the labour court on the question whether the complainant is workman or not is not final and obviously, therefore, to obviate the necessity of remand at later stage by the superior court on other issues in case the superior court does not agree with the labour court on its finding on the question whether the complainant is workman or not, it would be desirable that all issues are decided simultaneously including the question whether the complainant is workman or not.5. a similar view has been taken by the learned single judge of the gujrath high court in sarabhai m. chemicals ltd. v. rajnikant v. shah (supra). in my view, this has been the consistent practice which ought to have been adopted by the labour court in the present case as well. in the case h.s. rawat v. voltas ltd. (supra), the learned single judge has concluded that hearing of all issues together in labour matters is not an inflexible rule. however, these observations have been made in the facts and circumstances arising in that case. it appears that, in that case the labour court had passed an order dated november 19, 1998 that it would hear the issue as to whether the petitioner is a workman, as a preliminary issue. the petitioner did not challenge that order and the parties acted on the same. it was only when the petitioner was required to lead evidence in rebuttal that he applied that all issues should be decided together. apart from that, the order of the labour court dated november 19, 1998 directing that only preliminary issues would be decided was not challenged in the writ petition. in view of this, it was held that there was lack of due diligence on the part of the petitioner and the labour court was entitled to consider his conduct while coming to the conclusion whether one issue should be heard as a preliminary issue.6. it is true that the rule that the labour court/industrial tribunal should hear all issues-together is not immutable. however, the rule has been adopted as a matter of prudence in order to obviate dilatory tactics which may be adopted by the parties. procrastination would not benefit either party and certainly not the workman. it must be borne in mind that the industrial disputes act is a beneficial piece of legislation enacted to resolve disputes between employees and their workmen expeditiously. procedure which is contrary to this avowed object should be eschewed as far as possible. the apex court in d.p. maheshwari v. delhi administration, (supra) case has in 1983 observed that labour disputes must be resolved with alacrity in order to promote industrial peace. a decision on all issues together from the labour court/industrial tribunal is a step in that direction.7. the next submission of the learned advocate for the respondent company that the evidence would be led on all issues and only one issue should be decided, is unsustainable in view of the fact that it is necessary to expedite labour matters as observed in the case of r.b. gundewar v. crompton greaves ltd. (supra). the finding recorded by the labour court as to whether a person is a workman or not, is not final. the superior court, if it finds that the finding recorded is incorrect, would have to remand the matter to the labour court at a later stage, whereas if all the issues are decided together, the possibility of a remand could be a obviated if the superior court finds that the conclusion of the labour court that the person is not a workman is erroneous.8. in my view, therefore, the petitioner is justified in his submission that all issues, including the issue whether he is a workman, must be decided together. the order of the labour court is set aside. the labour court is directed to frame all the issues together and decide the reference by permitting parties to lead evidence on all issues. the court shall answer all issues together.9. writ petition disposed of accordingly.