The Tata Power Co. Ltd. (Erstwhile Tata Electric Companies Comprising of the Tata Hydraulic Electric Power Supply Co. Ltd., the Andhra Valley Power Supply Co Ltd. and the Tata Power Company Ltd.) Vs. K.T. Mane, - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - clearly it does. 12. both the labour court and industrial court failed to appreciate the correct legal position and manifestly erred in holding that the action of the employer in dismissing the workman had to be set aside for want of a departmental inquiry. udai narayan pandey 2006 llr 214, the workman clearly failed to discharge the initial burden of establishing that he was not gainfully employed by placing adequate material on the record.d.y. chandrachud, j.1. rule,2. counsel appearing on behalf of the respondent waives service. with the consent of the counsel and at their request taken up for hearing and final disposal.3. the first respondent was employed with the petitioner. during the course of his employment, the first respondent was charged of the commission of offences under section 302 and 498a of the penal code. by a judgment dated 24th december 1997, the first respondent was acquitted of the charge under section 302 of the penal code on the ground that the benefit of doubt should be given to him. he was, however, convicted of offences under sections 498a and 306 of the penal code. the first respondent was in custody since 22nd december 1993. he was directed to be released on the sentence undergone on 5th february 1998. the petitioner issued a notice to show cause to the first respondent in pursuance of an application received by the first respondent on 14th january 1998, furnishing a copy of the judgment of the sessions court. the notice alleged that, the first respondent was convicted of a grave criminal offence involving moral turpitude and he was called upon to show cause as to why he should not be dismissed from service under clause 32(xxii) of the certified standing orders read with clause 33(1). by his reply dated 12th february 1998 the first respondent admitted that he was prosecuted in c.r. no. 447/93 for offences under section 302, 498a and 306 of the penal code and that he had been convicted by the sessions judge. the relevant part of the reply of the first respondent reads as follows:in the said case, the ld. sessions judge by her judgment and order dated 24.12.1997, found my client guilty for the offence under section 498a and 306 of indian penal code and sentenced him for the period which he has already undergone as an under trial prisoner. the ld. judge while sentencing my client observed that since my client was in custody since 23.12.1993, the period of detention was sufficient sentence to meet the needs of justice.4. on 23rd february 1998 the first respondent was dismissed from service. the first respondent moved the labour court in an application under sections 78 and 79 of the bombay industrial rules act 1946. since no departmental inquiry had been held, the employer sought an opportunity to lead evidence in support of the action of dismissal. the labour court having granted that opportunity, the petitioner adduced evidence in support of the charge of misconduct of its senior executive engineer. the witness, during the course of his cross-examination denied the suggestion that the conviction was not on a charge of misconduct involving moral turpitude. in paragraph 4 of the affidavit of examination, the witness stated thus:i say that in fact the applicant was convicted under section 498a and 306 of i.p.c., i.e. abetment of suicide of his wife and cruelty by him to his wife respectively, and according to the opponent company, such serious and grave criminal offences committed by the complainant results into moral turpitude.5. the labour court by its judgment dated 5th february 1999 allowed the application and directed the petitioner to reinstate the first respondent with full back wages and continuity of service. the labour court held that the management only relied upon the decision of the criminal court and was not justified in not holding a departmental inquiry. the judgment was confirmed in appeal by the industrial court on 5th may 2009. the industrial court held that though the management issued a notice to show cause to the workman calling upon him to explain why he should not be dismissed from service under clause 32(xxii) read with clause 33(1) of the certified standing orders, there was no provision in the standing orders for dispensing with an inquiry.6. counsel appearing on behalf of the petitioner submitted that the judgment of the industrial court is erroneous and is contrary to the settled position in law. firstly, it was submitted that there was no occasion for the management to hold a departmental inquiry once the fact of the conviction of the employee by the sessions court was admitted. in such a case the holding of a regular departmental inquiry would be superfluous. secondly, the conviction, in the present case is on a charge involving moral turpitude which falls within the purview of standing order 32(xxii). thirdly, in any event, the management availed of the opportunity to lead evidence in support of the charge of misconduct since no departmental inquiry had been held, in terms of the judgment of the supreme court in workmen of firestone tyre and rubber co. v. management : 1973 vol 1 llj 278. fourthly, in so far as the grant of full back wages is concerned, no evidence whatsoever was led by the workmen to the effect that he was not gainfully employed.7. on the other hand, it was urged on behalf of the first respondent that the certified standing orders did not contain any provision for dispensing with the inquiry and hence the holding of a regular departmental inquiry was obligatory. secondly, it was urged that, the workman had made a statement to the effect that he was not gainfully employed.8. clause 32(xxii) of the certified standing orders interalia defines a misconduct to arise where an employee is convicted in any court of law for any criminal offence involving moral turpitude. clause 33(1) of the certified standing orders provides as follows:33(1) an employee guilty of misconduct may bea) warned or censured, orb) subject to and in accordance with the provisions of the payment of wages act 1936 fined orc) by an order in writing signed by the station superintendent, suspended for a period not exceeding four days or dismissed without notice;9. in the present case, the first respondent was convicted by the sessions court of offences under sections 498a and 306 of the penal code. the first respondent was in custody since 22nd december 1993 and was directed to be released on the sentence undergone. the management issued a notice to the workmen on 5th february 1998, recording that from the judgment of the sessions court, it was evident that the first respondent has been convicted of the offence of abetting suicide and of cruelty which was an offence of a serious and grave nature involving moral turpitude. the workman was called upon to show cause as to why he should not be dismissed from service. the fact of the conviction and of the sentence could not have been and was, therefore, not disputed in the reply dated 12th february 1998. the entire tenor of the reply related to circumstances which led to the events which culminated in the charge sheet that was lodged against the first respondent. the management thereupon proceeded to dismiss him from service.10. rules of natural justice have to be observed and a disciplinary inquiry has to be held where allegations involving misconduct are denied by a workman. the misconduct under clause 32(xii) of the certified standing orders arises, where an employee is convicted in a court of law for a criminal offence involving moral turpitude. the conviction of a workman of an offence involving moral turpitude constitutes the act of misconduct. even if, a departmental inquiry were to be held, it would lie beyond the province of the inquiry to inquire into allegations which led to the conviction in the first place. once there is a conviction by a court of law and the conviction is of a criminal offence involving moral turpitude, the charge of misconduct stands established. in a case such as the present, where the workman had been convicted by a court of competent jurisdiction of a criminal offence involving moral turpitude and that is what constitutes a misconduct under the standing orders, the holding of a departmental inquiry would be entirely superfluous. the law does not contemplate observing the forms of a meaningless formality. as a matter of fact, in his reply to the notice to show cause, the first respondent did not dispute, as he could not have disputed, the factum of the conviction or the nature of the charge. it cannot have been suggested that the conviction under section 498a and 306 of the penal code does not involve an offence of moral turpitude. clearly it does.11. as far back as in 1968 the supreme court held in the central bank of india ltd. v. k. banerjee 1968 lab ic 219 sc that the rules of natural justice have to be observed in the conduct of a domestic enquiry against a workman and if the allegations are denied the burden of proving the truth of those allegations will be on the management. but, if the workmen 'admits his guilt, to insist upon the management to let in evidence about the allegations will, only be an empty formality'. where the misconduct as in the present case is under certified standing order 32(xxii), the admission of the workman is not in regard to the allegations which led to the charge of having committed a criminal offence, but of the factum of his conviction. whether or not the charge involves moral turpitude is a matter, which has to be independently assessed and as already noted earlier, it cannot be even suggested that the charge in the present case did not involve moral turpitude.12. both the labour court and industrial court failed to appreciate the correct legal position and manifestly erred in holding that the action of the employer in dismissing the workman had to be set aside for want of a departmental inquiry. in any event, the judgment of the supreme court in firestone (supra), contemplates that the industrial court has jurisdiction to consider the evidence placed before it for the first time in justification of the action taken, if no inquiry has been held or after the inquiry conducted by the employer is found to be defective. it cannot be even urged that the workman was not aware of the allegation of misconduct against him by the management, since the notice to show cause dated 5th february 2008 spells out the charge of misconduct under clause 32(xxii) read with clause 33(1) of the certified standing orders. the management availed of the opportunity to substantiate the charge under clause 32(xxii) by leading evidence before the labour court. the judgment of the sessions court was produced and relied upon. the witness for the management deposed that the offence in the case was of a grave nature involving moral turpitude and he denied any allegations to the contrary.13. on behalf of the first respondent reliance was sought to be placed on the judgment of the supreme court in workmen of hindustan steel ltd. v. hindustan steel ltd. 1985 (1) clr 193 (sc) in that case, the management had passed an order on 24th august 1970, merely stating that it was not expedient to employ the workman an assistant in the durgapur steel plant. the supreme court observed that some inquiry was started. however, what prompted the employer to close the inquiry, could not be gathered from the order. from the material on record, it emerged that a secret report had been sent to the disciplinary authority and a complaint had been lodged by the wife of the employee. the supreme court noted that, if the wife filed a report with the police making an allegation against the workman, she would have to be examined in the criminal case and could have been conveniently called before the inquiry officer. the reasons for dispensing with the inquiry did not spell out what was the nature of the misconduct alleged to have been committed by the workman and what led the general manager to dispense with the inquiry. it was in this factual background, that the supreme court held that no case had been made out for dispensing with the inquiry. in fact, the following observations of the supreme court would indicate that in a case such as the present, where the penalty of dismissal has been imposed upon a conviction on a criminal charge involving moral turpitude, the inquiry would be superfluous. 'where the penalty of dismissal, removal or reduction in rank is to be imposed on the ground of a conduct which has led to his conviction on a criminal charge, obviously, the enquiry will be superfluous or a repeat performance because a judicial tribunal has held the charges proved.'14. hence, both the labour court and industrial court erred in granting reinstatement. the orders passed by the courts below are unsustainable and will have to be interfered with in the exercise of jurisdiction under article 226 to prevent a miscarriage of justice.15. in the view which has been taken as aforesaid, the award of back wages is also unsustainable. in any event, in terms of the law laid down by the supreme court in kendriya vidyalaya sangathan and anr. v. s. c. sharma : 2005 2 llj 153 and in u.p. state brassware corpn ltd v. udai narayan pandey 2006 llr 214, the workman clearly failed to discharge the initial burden of establishing that he was not gainfully employed by placing adequate material on the record.16. for these reasons, the writ petition would have to be allowed. rule is made absolute in terms of prayer clause (a) by setting aside the judgment of the industrial court dated 5th may 2009 in appeal i. c. no. 18 of 2009 in application br no. 26/99. the application filed by the workman shall accordingly stand dismissed. the court is informed that during the course of the proceedings that the petitioner had deposited rs. 1,71,679/before the labour court. upon the expiry of a period of 6 weeks from today, the petitioner would be at liberty to withdraw the amount deposited together with the interest accrued thereon, if any.