Arora Combines Vs. Damaji Ganpat Mankar and anr. - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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 aforesaid case clearly stands on a different footing inasmuch as there was a specific direction for reinstatement passed by the labour court of which a stay had been sought by the employer.orderd.y. chandrachud, j.1. the motion has been filed in order to seek relief under section 17b of the industrial disputes act, 1947.2. by the award of the labour court dated 8th march, 2007 the following relief was granted to the workman:i. the 2nd party workman, mr. damaji ganpat mankar is entitled to get 75% of back wages from the date of dismissal till today.ii. the 2nd party workman is also entitled to get continuity of service w.e.f. 21.9.2000 till today with attendant benefits.iii. the 2nd party is also entitled to get 40% of wages from today till the date of retirement on superannuation by way of compensation instead of reinstatement. the 1st party if does not desire to pay compensation is at liberty to allow 2nd party to reinstate 2nd party/workman.3. in paragraph 41 of the award the labour court held that having regard to the conduct of the workman, it was not desirable that reinstatement should be granted. as the operative part of the award would show, the labour court granted (i) 75% of the back wages from the date of the dismissal until the date of the award; (ii) continuity of service and (iii) 40% of the back wages from the date of the award until the date of superannuation by way of compensation instead of reinstatement. liberty was granted to the employer if he did not desire to pay compensation to reinstate the workman. section 17b of the industrial disputes act provides that where in any case, a labour court or tribunal 'by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a high court or the supreme court,' the employer shall be liable to pay the workman, during the pendency of the proceedings, full wages last drawn by him, inclusive of any maintenance allowance. in other words, in order that section 17b should be brought into operation, the labour court or as the case may be, tribunal must by its award have directed reinstatement of a workman and there must be a proceeding by the employer against the award in the high court or the supreme court.4. in the present case, the labour court has expressly declined to grant relief of reinstatement. the labour court has furnished reasons for declining relief of reinstatement in paragraph 14 of the award. clause (iii) of the operative part of the award also makes it clear that the payment of 40% wages from the date of the award until superannuation was awarded as compensation instead of reinstatement. in these circumstances, the provisions of section 17b would not come into operation. this view of section 17b is consistent with the interpretation placed thereon in a judgment of a division bench of this court in rohidas b. duraphe v. mazgaon dock ltd. (appeal no. 105 of 2008 in notice of motion 382 of 2007 in wp 2803 of 2006) decided on 30th june, 2008. in that case, the labour court had granted compensation instead of reinstatement but had granted the employer liberty to allow the workman to report for work instead of paying compensation. by an order dated 27th june, 2007 the learned single judge had observed that the labour court had not passed an order of reinstatement and that section 17b would not apply. this view was upheld by the division bench in appeal. reliance was, however, sought to be placed on a judgment of hon'ble mr. justice a.m. khanwilkar dated 28th november, 2007 in china gate restaurant private limited v. kisan d. badei (notice of motion 414 of 2007 in writ petition 1132 of 2007). in the case which arose before the learned single judge the labour court had by its award expressly held that the workman 'is entitled to get reinstatement with full back wages and continuity of service'. however, liberty was granted to the employer, if he did not want to reinstate the workman, to pay full back wages from 20th june, 2002 till the date of the award with consequential benefits and to pay compensation of rs. 2.50 lacs instead of reinstatement. in holding that section 17b would apply, the learned single judge observed that 'going by the direction issued by the labour court, there is no doubt that the award in the first place declares that the respondent workman is entitled for an order of reinstatement with full back wages'. the learned single judge also noted that the employer had as a matter of fact not even deposited rs. 2.50 lacs as directed, in court, nor had the employer paid full back wages. this view was affirmed by the division bench in appeal on 12th august, 2008 (appeal 18 of 2008). the division bench also noted that 'there is an order of reinstatement which has been challenged by the appellant by filing the writ petition' and that the employer had also applied for stay of the order of reinstatement. in a special leave petition filed by the employer before the supreme court, special leave petition (civil) 23144 of 2008, the supreme court by its order dated 3rd november, 2008 granted relief in terms of section 17b, but directed that the amount of rs. 2.50 lacs which shall be deposited in court may not be paid to the workman. the aforesaid case clearly stands on a different footing inasmuch as there was a specific direction for reinstatement passed by the labour court of which a stay had been sought by the employer.5. in the present case as already noted there is no order of reinstatement by the labour court and in fact for the reasons indicated in the award, the labour court declined to allow the plea for reinstatement. in these circumstances, section 17b of the industrial disputes act, 1947 can have no application. the motion is accordingly dismissed.

Judgment:
ORDER

D.Y. Chandrachud, J.

1. The Motion has been filed in order to seek relief under Section 17B of the Industrial Disputes Act, 1947.

2. By the award of the Labour Court dated 8th March, 2007 the following relief was granted to the workman:

i. The 2nd party workman, Mr. Damaji Ganpat Mankar is entitled to get 75% of back wages from the date of dismissal till today.

ii. The 2nd party workman is also entitled to get continuity of service w.e.f. 21.9.2000 till today with attendant benefits.

iii. The 2nd party is also entitled to get 40% of wages from today till the date of retirement on superannuation by way of compensation instead of reinstatement. The 1st party if does not desire to pay compensation is at liberty to allow 2nd party to reinstate 2nd party/workman.

3. In paragraph 41 of the award the Labour Court held that having regard to the conduct of the workman, it was not desirable that reinstatement should be granted. As the operative part of the award would show, the Labour Court granted (i) 75% of the back wages from the date of the dismissal until the date of the award; (ii) continuity of service and (iii) 40% of the back wages from the date of the award until the date of superannuation by way of compensation instead of reinstatement. Liberty was granted to the employer if he did not desire to pay compensation to reinstate the workman. Section 17B of the Industrial Disputes Act provides that where in any case, a Labour Court or Tribunal 'by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court,' the employer shall be liable to pay the workman, during the pendency of the proceedings, full wages last drawn by him, inclusive of any maintenance allowance. In other words, in order that Section 17B should be brought into operation, the Labour Court or as the case may be, Tribunal must by its award have directed reinstatement of a workman and there must be a proceeding by the employer against the award in the High Court or the Supreme Court.

4. In the present case, the Labour Court has expressly declined to grant relief of reinstatement. The Labour Court has furnished reasons for declining relief of reinstatement in paragraph 14 of the award. Clause (iii) of the operative part of the award also makes it clear that the payment of 40% wages from the date of the award until superannuation was awarded as compensation instead of reinstatement. In these circumstances, the provisions of Section 17B would not come into operation. This view of Section 17B is consistent with the interpretation placed thereon in a judgment of a Division Bench of this Court in Rohidas B. Duraphe v. Mazgaon Dock Ltd. (Appeal No. 105 of 2008 in Notice of Motion 382 of 2007 in WP 2803 of 2006) decided on 30th June, 2008. In that case, the Labour Court had granted compensation instead of reinstatement but had granted the employer liberty to allow the workman to report for work instead of paying compensation. By an order dated 27th June, 2007 the Learned Single Judge had observed that the Labour Court had not passed an order of reinstatement and that Section 17B would not apply. This view was upheld by the Division Bench in appeal. Reliance was, however, sought to be placed on a judgment of Hon'ble Mr. Justice A.M. Khanwilkar dated 28th November, 2007 in China Gate Restaurant Private Limited v. Kisan D. Badei (Notice of Motion 414 of 2007 in Writ Petition 1132 of 2007). In the case which arose before the learned Single Judge the Labour Court had by its award expressly held that the workman 'is entitled to get reinstatement with full back wages and continuity of service'. However, liberty was granted to the employer, if he did not want to reinstate the workman, to pay full back wages from 20th June, 2002 till the date of the award with consequential benefits and to pay compensation of Rs. 2.50 lacs instead of reinstatement. In holding that Section 17B would apply, the Learned Single Judge observed that 'going by the direction issued by the Labour Court, there is no doubt that the award in the first place declares that the Respondent workman is entitled for an order of reinstatement with full back wages'. The Learned Single Judge also noted that the employer had as a matter of fact not even deposited Rs. 2.50 lacs as directed, in Court, nor had the employer paid full back wages. This view was affirmed by the Division Bench in appeal on 12th August, 2008 (Appeal 18 of 2008). The Division Bench also noted that 'there is an order of reinstatement which has been challenged by the appellant by filing the writ petition' and that the employer had also applied for stay of the order of reinstatement. In a Special Leave Petition filed by the employer before the Supreme Court, Special Leave Petition (Civil) 23144 of 2008, the Supreme Court by its order dated 3rd November, 2008 granted relief in terms of Section 17B, but directed that the amount of Rs. 2.50 lacs which shall be deposited in Court may not be paid to the workman. The aforesaid case clearly stands on a different footing inasmuch as there was a specific direction for reinstatement passed by the Labour Court of which a stay had been sought by the employer.

5. In the present case as already noted there is no order of reinstatement by the Labour Court and in fact for the reasons indicated in the award, the Labour Court declined to allow the plea for reinstatement. In these circumstances, Section 17B of the Industrial Disputes Act, 1947 can have no application. The Motion is accordingly dismissed.