SooperKanoon Citation | sooperkanoon.com/749569 |
Subject | Arbitration |
Court | Gujarat High Court |
Decided On | Oct-05-2007 |
Case Number | Spl. Civil Appln. No. 4542 of 2006 |
Judge | K.A. Puj, J. |
Reported in | AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525 |
Acts | Arbitration and Conciliation Act, 1996 - Sections 34 and 34(3); Limitation Act, 1963 - Sections 4, 5, 12, 14 and 29(2); Constitution of India - Articles 226 and 227 |
Appellant | State of Gujarat thr' Executive Engineer |
Respondent | Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. |
Appellant Advocate | Niraj Soni, Assistant Govt. Pleader |
Respondent Advocate | K.G. Sukhwani, Adv. |
Disposition | Petition allowed |
Cases Referred | Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. |
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p style="text-align: justify;">K.A. Puj, J.</p><p style="text-align: justify;">1. The petitioner has filed this petition under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p style="text-align: justify;">2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p style="text-align: justify;">3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p style="text-align: justify;">4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p style="text-align: justify;">5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p style="text-align: justify;">6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p style="text-align: justify;">7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p style="text-align: justify;">8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> was applicable in the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p style="text-align: justify;">9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p style="text-align: justify;">10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p style="text-align: justify;">11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p style="text-align: justify;">12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p style="text-align: justify;">13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p style="text-align: justify;">14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p style="text-align: justify;">The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'state-gujarat-thr-executive-engineer-vs-construction-baroda', 'args' => array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) ) $title_for_layout = 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p>K.A. Puj, J.</p><p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ) $casename_url = 'state-gujarat-thr-executive-engineer-vs-construction-baroda' $args = array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) $url = 'https://sooperkanoon.com/case/amp/749569/state-gujarat-thr-executive-engineer-vs-construction-baroda' $ctype = ' High Court' $caseref = 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.<br>'include - APP/View/Case/amp.ctp, line 120 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 120]- industrial disputes act, 1947. section 2(s): [m.s. shah, sharad d. dave & k.s. jhaveri,jj] workman part time employees held, part time employees are not excluded from the definition of workman in section 2(s) merely on the ground that they are part time employees. the ex abundante cautela use of the words either whole time or part time by the legislature in the definition of working journalist in the working journalists and other newspaper employees (conditions of service and miscellaneous provisions) act, 1955, does not mean that the definition of workman in the prior act i.e. industrial disputes act, 1947 intended to exclude part-time employees from the definition of workman. the expression part time has nothing to do with the nature of appointment, but it only regulates the.....Code Contextecho "<div class='table-bordered'><b>Excerpt:</b><br/>";
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p style="text-align: justify;">K.A. Puj, J.</p><p style="text-align: justify;">1. The petitioner has filed this petition under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p style="text-align: justify;">2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p style="text-align: justify;">3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p style="text-align: justify;">4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p style="text-align: justify;">5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p style="text-align: justify;">6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p style="text-align: justify;">7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p style="text-align: justify;">8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> was applicable in the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p style="text-align: justify;">9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p style="text-align: justify;">10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p style="text-align: justify;">11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p style="text-align: justify;">12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p style="text-align: justify;">13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p style="text-align: justify;">14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p style="text-align: justify;">The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'state-gujarat-thr-executive-engineer-vs-construction-baroda', 'args' => array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) ) $title_for_layout = 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p>K.A. Puj, J.</p><p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ) $casename_url = 'state-gujarat-thr-executive-engineer-vs-construction-baroda' $args = array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) $url = 'https://sooperkanoon.com/case/amp/749569/state-gujarat-thr-executive-engineer-vs-construction-baroda' $ctype = ' High Court' $caseref = 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.<br>'include - APP/View/Case/amp.ctp, line 120 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p style="text-align: justify;">K.A. Puj, J.</p><p style="text-align: justify;">1. The petitioner has filed this petition under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p style="text-align: justify;">2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p style="text-align: justify;">3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p style="text-align: justify;">4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p style="text-align: justify;">5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p style="text-align: justify;">6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p style="text-align: justify;">7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p style="text-align: justify;">8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> was applicable in the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p style="text-align: justify;">9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p style="text-align: justify;">10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p style="text-align: justify;">11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p style="text-align: justify;">12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p style="text-align: justify;">13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p style="text-align: justify;">14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p style="text-align: justify;">The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'state-gujarat-thr-executive-engineer-vs-construction-baroda', 'args' => array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) ) $title_for_layout = 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p>K.A. Puj, J.</p><p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ) $casename_url = 'state-gujarat-thr-executive-engineer-vs-construction-baroda' $args = array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) $url = 'https://sooperkanoon.com/case/amp/749569/state-gujarat-thr-executive-engineer-vs-construction-baroda' $ctype = ' High Court' $caseref = 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.<br>'include - APP/View/Case/amp.ctp, line 123 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 123]orderk.a. puj, j.1. the petitioner has filed this petition under articles 226 and 227 of the constitution of india challenging the order passed by the learned additional district judge, vadodara below an application exh. 17 in misc. application (arbitration) no. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide exh. 16 were ordered 10 be rejected and ordered to be filed.2. it is the ease of the petitioner that the state of gujarat invited the tenders pertaining to the work of providing and connecting the hume steel pipes. an agreement between the parties was entered into on 14-7-1992. the work order was issued to the present respondent no. 1. the respondent no. 1 was required to complete the work within the prescribed time period. because of the failure on.....Code Context}
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p style="text-align: justify;">K.A. Puj, J.</p><p style="text-align: justify;">1. The petitioner has filed this petition under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p style="text-align: justify;">2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p style="text-align: justify;">3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p style="text-align: justify;">4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p style="text-align: justify;">5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p style="text-align: justify;">6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p style="text-align: justify;">7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p style="text-align: justify;">8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> was applicable in the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p style="text-align: justify;">9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p style="text-align: justify;">10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p style="text-align: justify;">11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p style="text-align: justify;">12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p style="text-align: justify;">13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p style="text-align: justify;">14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p style="text-align: justify;">The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'state-gujarat-thr-executive-engineer-vs-construction-baroda', 'args' => array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) ) $title_for_layout = 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p>K.A. Puj, J.</p><p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. 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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p style="text-align: justify;">K.A. Puj, J.</p><p style="text-align: justify;">1. The petitioner has filed this petition under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p style="text-align: justify;">2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p style="text-align: justify;">3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p style="text-align: justify;">4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p style="text-align: justify;">5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p style="text-align: justify;">6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p style="text-align: justify;">7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p style="text-align: justify;">8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> was applicable in the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p style="text-align: justify;">9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p style="text-align: justify;">10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p style="text-align: justify;">11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p style="text-align: justify;">12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p style="text-align: justify;">13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p style="text-align: justify;">14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p style="text-align: justify;">The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'state-gujarat-thr-executive-engineer-vs-construction-baroda', 'args' => array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) ) $title_for_layout = 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p>K.A. Puj, J.</p><p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ) $casename_url = 'state-gujarat-thr-executive-engineer-vs-construction-baroda' $args = array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) $url = 'https://sooperkanoon.com/case/amp/749569/state-gujarat-thr-executive-engineer-vs-construction-baroda' $ctype = ' High Court' $caseref = 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.<br>' $content = array( (int) 0 => 'ORDER<p>K.A. Puj, J.', (int) 1 => '<p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.', (int) 2 => '<p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.', (int) 3 => '<p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.', (int) 4 => '<p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.', (int) 5 => '<p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.', (int) 6 => '<p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.', (int) 7 => '<p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.', (int) 8 => '<p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.', (int) 9 => '<p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.', (int) 10 => '<p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.', (int) 11 => '<p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.', (int) 12 => '<p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.', (int) 13 => '<p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.', (int) 14 => '<p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.', (int) 15 => '<p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p>', (int) 16 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 17 $i = (int) 0include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
K.A. Puj, J.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p style="text-align: justify;">K.A. Puj, J.</p><p style="text-align: justify;">1. The petitioner has filed this petition under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p style="text-align: justify;">2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p style="text-align: justify;">3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p style="text-align: justify;">4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p style="text-align: justify;">5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p style="text-align: justify;">6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p style="text-align: justify;">7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p style="text-align: justify;">8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> was applicable in the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p style="text-align: justify;">9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p style="text-align: justify;">10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p style="text-align: justify;">11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p style="text-align: justify;">12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p style="text-align: justify;">13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p style="text-align: justify;">14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p style="text-align: justify;">The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'state-gujarat-thr-executive-engineer-vs-construction-baroda', 'args' => array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) ) $title_for_layout = 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p>K.A. Puj, J.</p><p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ) $casename_url = 'state-gujarat-thr-executive-engineer-vs-construction-baroda' $args = array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) $url = 'https://sooperkanoon.com/case/amp/749569/state-gujarat-thr-executive-engineer-vs-construction-baroda' $ctype = ' High Court' $caseref = 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.<br>' $content = array( (int) 0 => 'ORDER<p>K.A. Puj, J.', (int) 1 => '<p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.', (int) 2 => '<p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.', (int) 3 => '<p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.', (int) 4 => '<p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.', (int) 5 => '<p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.', (int) 6 => '<p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.', (int) 7 => '<p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.', (int) 8 => '<p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.', (int) 9 => '<p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.', (int) 10 => '<p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.', (int) 11 => '<p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.', (int) 12 => '<p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.', (int) 13 => '<p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.', (int) 14 => '<p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.', (int) 15 => '<p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p>', (int) 16 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 17 $i = (int) 1include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
1. The petitioner has filed this petition under Articles 226 and 227 of the Constitution of India challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p style="text-align: justify;">K.A. Puj, J.</p><p style="text-align: justify;">1. The petitioner has filed this petition under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p style="text-align: justify;">2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p style="text-align: justify;">3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p style="text-align: justify;">4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p style="text-align: justify;">5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p style="text-align: justify;">6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p style="text-align: justify;">7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p style="text-align: justify;">8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> was applicable in the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p style="text-align: justify;">9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p style="text-align: justify;">10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p style="text-align: justify;">11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p style="text-align: justify;">12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p style="text-align: justify;">13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p style="text-align: justify;">14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p style="text-align: justify;">The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'state-gujarat-thr-executive-engineer-vs-construction-baroda', 'args' => array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) ) $title_for_layout = 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p>K.A. Puj, J.</p><p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ) $casename_url = 'state-gujarat-thr-executive-engineer-vs-construction-baroda' $args = array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) $url = 'https://sooperkanoon.com/case/amp/749569/state-gujarat-thr-executive-engineer-vs-construction-baroda' $ctype = ' High Court' $caseref = 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.<br>' $content = array( (int) 0 => 'ORDER<p>K.A. Puj, J.', (int) 1 => '<p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.', (int) 2 => '<p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.', (int) 3 => '<p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.', (int) 4 => '<p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.', (int) 5 => '<p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.', (int) 6 => '<p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.', (int) 7 => '<p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.', (int) 8 => '<p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.', (int) 9 => '<p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.', (int) 10 => '<p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.', (int) 11 => '<p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.', (int) 12 => '<p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.', (int) 13 => '<p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.', (int) 14 => '<p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.', (int) 15 => '<p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p>', (int) 16 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 17 $i = (int) 2include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p style="text-align: justify;">K.A. Puj, J.</p><p style="text-align: justify;">1. The petitioner has filed this petition under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p style="text-align: justify;">2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p style="text-align: justify;">3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p style="text-align: justify;">4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p style="text-align: justify;">5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p style="text-align: justify;">6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p style="text-align: justify;">7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p style="text-align: justify;">8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> was applicable in the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p style="text-align: justify;">9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p style="text-align: justify;">10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p style="text-align: justify;">11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p style="text-align: justify;">12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p style="text-align: justify;">13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p style="text-align: justify;">14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p style="text-align: justify;">The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'state-gujarat-thr-executive-engineer-vs-construction-baroda', 'args' => array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) ) $title_for_layout = 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p>K.A. Puj, J.</p><p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ) $casename_url = 'state-gujarat-thr-executive-engineer-vs-construction-baroda' $args = array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) $url = 'https://sooperkanoon.com/case/amp/749569/state-gujarat-thr-executive-engineer-vs-construction-baroda' $ctype = ' High Court' $caseref = 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.<br>' $content = array( (int) 0 => 'ORDER<p>K.A. Puj, J.', (int) 1 => '<p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.', (int) 2 => '<p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.', (int) 3 => '<p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.', (int) 4 => '<p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.', (int) 5 => '<p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.', (int) 6 => '<p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.', (int) 7 => '<p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.', (int) 8 => '<p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.', (int) 9 => '<p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.', (int) 10 => '<p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.', (int) 11 => '<p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.', (int) 12 => '<p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.', (int) 13 => '<p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.', (int) 14 => '<p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.', (int) 15 => '<p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p>', (int) 16 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 17 $i = (int) 3include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the Arbitration and Conciliation Act, 1996. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p style="text-align: justify;">K.A. Puj, J.</p><p style="text-align: justify;">1. The petitioner has filed this petition under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p style="text-align: justify;">2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p style="text-align: justify;">3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p style="text-align: justify;">4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p style="text-align: justify;">5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p style="text-align: justify;">6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p style="text-align: justify;">7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p style="text-align: justify;">8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> was applicable in the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p style="text-align: justify;">9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p style="text-align: justify;">10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p style="text-align: justify;">11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p style="text-align: justify;">12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p style="text-align: justify;">13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p style="text-align: justify;">14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p style="text-align: justify;">The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'state-gujarat-thr-executive-engineer-vs-construction-baroda', 'args' => array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) ) $title_for_layout = 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p>K.A. Puj, J.</p><p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ) $casename_url = 'state-gujarat-thr-executive-engineer-vs-construction-baroda' $args = array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) $url = 'https://sooperkanoon.com/case/amp/749569/state-gujarat-thr-executive-engineer-vs-construction-baroda' $ctype = ' High Court' $caseref = 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.<br>' $content = array( (int) 0 => 'ORDER<p>K.A. Puj, J.', (int) 1 => '<p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.', (int) 2 => '<p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.', (int) 3 => '<p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.', (int) 4 => '<p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.', (int) 5 => '<p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.', (int) 6 => '<p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.', (int) 7 => '<p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.', (int) 8 => '<p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.', (int) 9 => '<p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.', (int) 10 => '<p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.', (int) 11 => '<p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.', (int) 12 => '<p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.', (int) 13 => '<p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.', (int) 14 => '<p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.', (int) 15 => '<p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p>', (int) 16 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 17 $i = (int) 4include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p style="text-align: justify;">K.A. Puj, J.</p><p style="text-align: justify;">1. The petitioner has filed this petition under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p style="text-align: justify;">2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p style="text-align: justify;">3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p style="text-align: justify;">4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p style="text-align: justify;">5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p style="text-align: justify;">6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p style="text-align: justify;">7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p style="text-align: justify;">8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> was applicable in the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p style="text-align: justify;">9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p style="text-align: justify;">10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p style="text-align: justify;">11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p style="text-align: justify;">12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p style="text-align: justify;">13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p style="text-align: justify;">14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p style="text-align: justify;">The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'state-gujarat-thr-executive-engineer-vs-construction-baroda', 'args' => array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) ) $title_for_layout = 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p>K.A. Puj, J.</p><p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ) $casename_url = 'state-gujarat-thr-executive-engineer-vs-construction-baroda' $args = array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) $url = 'https://sooperkanoon.com/case/amp/749569/state-gujarat-thr-executive-engineer-vs-construction-baroda' $ctype = ' High Court' $caseref = 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.<br>' $content = array( (int) 0 => 'ORDER<p>K.A. Puj, J.', (int) 1 => '<p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.', (int) 2 => '<p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.', (int) 3 => '<p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.', (int) 4 => '<p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.', (int) 5 => '<p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.', (int) 6 => '<p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.', (int) 7 => '<p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.', (int) 8 => '<p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.', (int) 9 => '<p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.', (int) 10 => '<p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.', (int) 11 => '<p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.', (int) 12 => '<p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.', (int) 13 => '<p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.', (int) 14 => '<p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.', (int) 15 => '<p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p>', (int) 16 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 17 $i = (int) 5include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p style="text-align: justify;">K.A. Puj, J.</p><p style="text-align: justify;">1. The petitioner has filed this petition under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p style="text-align: justify;">2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p style="text-align: justify;">3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p style="text-align: justify;">4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p style="text-align: justify;">5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p style="text-align: justify;">6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p style="text-align: justify;">7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p style="text-align: justify;">8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> was applicable in the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p style="text-align: justify;">9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p style="text-align: justify;">10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p style="text-align: justify;">11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p style="text-align: justify;">12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p style="text-align: justify;">13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p style="text-align: justify;">14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p style="text-align: justify;">The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'state-gujarat-thr-executive-engineer-vs-construction-baroda', 'args' => array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) ) $title_for_layout = 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p>K.A. Puj, J.</p><p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ) $casename_url = 'state-gujarat-thr-executive-engineer-vs-construction-baroda' $args = array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) $url = 'https://sooperkanoon.com/case/amp/749569/state-gujarat-thr-executive-engineer-vs-construction-baroda' $ctype = ' High Court' $caseref = 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.<br>' $content = array( (int) 0 => 'ORDER<p>K.A. Puj, J.', (int) 1 => '<p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.', (int) 2 => '<p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.', (int) 3 => '<p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.', (int) 4 => '<p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.', (int) 5 => '<p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.', (int) 6 => '<p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.', (int) 7 => '<p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.', (int) 8 => '<p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.', (int) 9 => '<p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.', (int) 10 => '<p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.', (int) 11 => '<p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.', (int) 12 => '<p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.', (int) 13 => '<p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.', (int) 14 => '<p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.', (int) 15 => '<p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p>', (int) 16 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 17 $i = (int) 6include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p style="text-align: justify;">K.A. Puj, J.</p><p style="text-align: justify;">1. The petitioner has filed this petition under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p style="text-align: justify;">2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p style="text-align: justify;">3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p style="text-align: justify;">4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p style="text-align: justify;">5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p style="text-align: justify;">6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p style="text-align: justify;">7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p style="text-align: justify;">8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> was applicable in the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p style="text-align: justify;">9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p style="text-align: justify;">10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p style="text-align: justify;">11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p style="text-align: justify;">12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p style="text-align: justify;">13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p style="text-align: justify;">14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p style="text-align: justify;">The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'state-gujarat-thr-executive-engineer-vs-construction-baroda', 'args' => array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) ) $title_for_layout = 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p>K.A. Puj, J.</p><p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ) $casename_url = 'state-gujarat-thr-executive-engineer-vs-construction-baroda' $args = array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) $url = 'https://sooperkanoon.com/case/amp/749569/state-gujarat-thr-executive-engineer-vs-construction-baroda' $ctype = ' High Court' $caseref = 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.<br>' $content = array( (int) 0 => 'ORDER<p>K.A. Puj, J.', (int) 1 => '<p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.', (int) 2 => '<p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.', (int) 3 => '<p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.', (int) 4 => '<p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.', (int) 5 => '<p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.', (int) 6 => '<p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.', (int) 7 => '<p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.', (int) 8 => '<p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.', (int) 9 => '<p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.', (int) 10 => '<p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.', (int) 11 => '<p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.', (int) 12 => '<p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.', (int) 13 => '<p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.', (int) 14 => '<p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.', (int) 15 => '<p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p>', (int) 16 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 17 $i = (int) 7include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p style="text-align: justify;">K.A. Puj, J.</p><p style="text-align: justify;">1. The petitioner has filed this petition under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p style="text-align: justify;">2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p style="text-align: justify;">3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p style="text-align: justify;">4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p style="text-align: justify;">5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p style="text-align: justify;">6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p style="text-align: justify;">7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p style="text-align: justify;">8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> was applicable in the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p style="text-align: justify;">9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p style="text-align: justify;">10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p style="text-align: justify;">11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p style="text-align: justify;">12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p style="text-align: justify;">13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p style="text-align: justify;">14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p style="text-align: justify;">The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'state-gujarat-thr-executive-engineer-vs-construction-baroda', 'args' => array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) ) $title_for_layout = 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p>K.A. Puj, J.</p><p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ) $casename_url = 'state-gujarat-thr-executive-engineer-vs-construction-baroda' $args = array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) $url = 'https://sooperkanoon.com/case/amp/749569/state-gujarat-thr-executive-engineer-vs-construction-baroda' $ctype = ' High Court' $caseref = 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.<br>' $content = array( (int) 0 => 'ORDER<p>K.A. Puj, J.', (int) 1 => '<p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.', (int) 2 => '<p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.', (int) 3 => '<p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.', (int) 4 => '<p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.', (int) 5 => '<p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.', (int) 6 => '<p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.', (int) 7 => '<p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.', (int) 8 => '<p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.', (int) 9 => '<p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.', (int) 10 => '<p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.', (int) 11 => '<p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.', (int) 12 => '<p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.', (int) 13 => '<p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.', (int) 14 => '<p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.', (int) 15 => '<p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p>', (int) 16 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 17 $i = (int) 8include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the Arbitration and Conciliation Act, 1996 and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the Arbitration and Conciliation Act, 1996 in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the Limitation Act, 1963 was applicable in the Arbitration and Conciliation Act, 1996 and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the Arbitration and Conciliation Act, 1996 and decide the same on merit after affording opportunity to the other party.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p style="text-align: justify;">K.A. Puj, J.</p><p style="text-align: justify;">1. The petitioner has filed this petition under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p style="text-align: justify;">2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p style="text-align: justify;">3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p style="text-align: justify;">4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p style="text-align: justify;">5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p style="text-align: justify;">6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p style="text-align: justify;">7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p style="text-align: justify;">8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> was applicable in the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p style="text-align: justify;">9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p style="text-align: justify;">10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p style="text-align: justify;">11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p style="text-align: justify;">12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p style="text-align: justify;">13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p style="text-align: justify;">14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p style="text-align: justify;">The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'state-gujarat-thr-executive-engineer-vs-construction-baroda', 'args' => array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) ) $title_for_layout = 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p>K.A. Puj, J.</p><p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ) $casename_url = 'state-gujarat-thr-executive-engineer-vs-construction-baroda' $args = array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) $url = 'https://sooperkanoon.com/case/amp/749569/state-gujarat-thr-executive-engineer-vs-construction-baroda' $ctype = ' High Court' $caseref = 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.<br>' $content = array( (int) 0 => 'ORDER<p>K.A. Puj, J.', (int) 1 => '<p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.', (int) 2 => '<p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.', (int) 3 => '<p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.', (int) 4 => '<p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.', (int) 5 => '<p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.', (int) 6 => '<p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.', (int) 7 => '<p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.', (int) 8 => '<p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.', (int) 9 => '<p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.', (int) 10 => '<p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.', (int) 11 => '<p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.', (int) 12 => '<p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.', (int) 13 => '<p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.', (int) 14 => '<p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.', (int) 15 => '<p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p>', (int) 16 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 17 $i = (int) 9include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p style="text-align: justify;">K.A. Puj, J.</p><p style="text-align: justify;">1. The petitioner has filed this petition under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p style="text-align: justify;">2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p style="text-align: justify;">3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p style="text-align: justify;">4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p style="text-align: justify;">5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p style="text-align: justify;">6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p style="text-align: justify;">7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p style="text-align: justify;">8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> was applicable in the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p style="text-align: justify;">9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p style="text-align: justify;">10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p style="text-align: justify;">11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p style="text-align: justify;">12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p style="text-align: justify;">13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p style="text-align: justify;">14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p style="text-align: justify;">The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'state-gujarat-thr-executive-engineer-vs-construction-baroda', 'args' => array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) ) $title_for_layout = 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p>K.A. Puj, J.</p><p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ) $casename_url = 'state-gujarat-thr-executive-engineer-vs-construction-baroda' $args = array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) $url = 'https://sooperkanoon.com/case/amp/749569/state-gujarat-thr-executive-engineer-vs-construction-baroda' $ctype = ' High Court' $caseref = 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.<br>' $content = array( (int) 0 => 'ORDER<p>K.A. Puj, J.', (int) 1 => '<p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.', (int) 2 => '<p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.', (int) 3 => '<p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.', (int) 4 => '<p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.', (int) 5 => '<p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.', (int) 6 => '<p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.', (int) 7 => '<p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.', (int) 8 => '<p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.', (int) 9 => '<p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.', (int) 10 => '<p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.', (int) 11 => '<p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.', (int) 12 => '<p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.', (int) 13 => '<p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.', (int) 14 => '<p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.', (int) 15 => '<p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p>', (int) 16 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 17 $i = (int) 10include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p style="text-align: justify;">K.A. Puj, J.</p><p style="text-align: justify;">1. The petitioner has filed this petition under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p style="text-align: justify;">2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p style="text-align: justify;">3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p style="text-align: justify;">4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p style="text-align: justify;">5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p style="text-align: justify;">6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p style="text-align: justify;">7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p style="text-align: justify;">8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> was applicable in the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p style="text-align: justify;">9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p style="text-align: justify;">10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p style="text-align: justify;">11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p style="text-align: justify;">12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p style="text-align: justify;">13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p style="text-align: justify;">14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p style="text-align: justify;">The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'state-gujarat-thr-executive-engineer-vs-construction-baroda', 'args' => array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) ) $title_for_layout = 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p>K.A. Puj, J.</p><p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ) $casename_url = 'state-gujarat-thr-executive-engineer-vs-construction-baroda' $args = array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) $url = 'https://sooperkanoon.com/case/amp/749569/state-gujarat-thr-executive-engineer-vs-construction-baroda' $ctype = ' High Court' $caseref = 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.<br>' $content = array( (int) 0 => 'ORDER<p>K.A. Puj, J.', (int) 1 => '<p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.', (int) 2 => '<p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.', (int) 3 => '<p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.', (int) 4 => '<p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.', (int) 5 => '<p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.', (int) 6 => '<p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.', (int) 7 => '<p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.', (int) 8 => '<p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.', (int) 9 => '<p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.', (int) 10 => '<p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.', (int) 11 => '<p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.', (int) 12 => '<p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.', (int) 13 => '<p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.', (int) 14 => '<p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.', (int) 15 => '<p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p>', (int) 16 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 17 $i = (int) 11include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p style="text-align: justify;">K.A. Puj, J.</p><p style="text-align: justify;">1. The petitioner has filed this petition under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p style="text-align: justify;">2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p style="text-align: justify;">3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p style="text-align: justify;">4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p style="text-align: justify;">5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p style="text-align: justify;">6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p style="text-align: justify;">7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p style="text-align: justify;">8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> was applicable in the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p style="text-align: justify;">9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p style="text-align: justify;">10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p style="text-align: justify;">11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p style="text-align: justify;">12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p style="text-align: justify;">13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p style="text-align: justify;">14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p style="text-align: justify;">The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'state-gujarat-thr-executive-engineer-vs-construction-baroda', 'args' => array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) ) $title_for_layout = 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p>K.A. Puj, J.</p><p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ) $casename_url = 'state-gujarat-thr-executive-engineer-vs-construction-baroda' $args = array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) $url = 'https://sooperkanoon.com/case/amp/749569/state-gujarat-thr-executive-engineer-vs-construction-baroda' $ctype = ' High Court' $caseref = 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.<br>' $content = array( (int) 0 => 'ORDER<p>K.A. Puj, J.', (int) 1 => '<p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.', (int) 2 => '<p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.', (int) 3 => '<p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.', (int) 4 => '<p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.', (int) 5 => '<p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.', (int) 6 => '<p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.', (int) 7 => '<p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.', (int) 8 => '<p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.', (int) 9 => '<p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.', (int) 10 => '<p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.', (int) 11 => '<p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.', (int) 12 => '<p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.', (int) 13 => '<p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.', (int) 14 => '<p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.', (int) 15 => '<p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p>', (int) 16 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 17 $i = (int) 12include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p style="text-align: justify;">K.A. Puj, J.</p><p style="text-align: justify;">1. The petitioner has filed this petition under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p style="text-align: justify;">2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p style="text-align: justify;">3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p style="text-align: justify;">4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p style="text-align: justify;">5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p style="text-align: justify;">6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p style="text-align: justify;">7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p style="text-align: justify;">8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> was applicable in the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p style="text-align: justify;">9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p style="text-align: justify;">10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p style="text-align: justify;">11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p style="text-align: justify;">12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p style="text-align: justify;">13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p style="text-align: justify;">14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p style="text-align: justify;">The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'state-gujarat-thr-executive-engineer-vs-construction-baroda', 'args' => array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) ) $title_for_layout = 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p>K.A. Puj, J.</p><p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ) $casename_url = 'state-gujarat-thr-executive-engineer-vs-construction-baroda' $args = array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) $url = 'https://sooperkanoon.com/case/amp/749569/state-gujarat-thr-executive-engineer-vs-construction-baroda' $ctype = ' High Court' $caseref = 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.<br>' $content = array( (int) 0 => 'ORDER<p>K.A. Puj, J.', (int) 1 => '<p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.', (int) 2 => '<p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.', (int) 3 => '<p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.', (int) 4 => '<p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.', (int) 5 => '<p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.', (int) 6 => '<p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.', (int) 7 => '<p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.', (int) 8 => '<p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.', (int) 9 => '<p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.', (int) 10 => '<p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.', (int) 11 => '<p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.', (int) 12 => '<p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.', (int) 13 => '<p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.', (int) 14 => '<p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.', (int) 15 => '<p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p>', (int) 16 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 17 $i = (int) 13include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p style="text-align: justify;">K.A. Puj, J.</p><p style="text-align: justify;">1. The petitioner has filed this petition under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p style="text-align: justify;">2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p style="text-align: justify;">3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p style="text-align: justify;">4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p style="text-align: justify;">5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p style="text-align: justify;">6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p style="text-align: justify;">7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p style="text-align: justify;">8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> was applicable in the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p style="text-align: justify;">9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p style="text-align: justify;">10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p style="text-align: justify;">11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p style="text-align: justify;">12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p style="text-align: justify;">13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p style="text-align: justify;">14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p style="text-align: justify;">The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'state-gujarat-thr-executive-engineer-vs-construction-baroda', 'args' => array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) ) $title_for_layout = 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p>K.A. Puj, J.</p><p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ) $casename_url = 'state-gujarat-thr-executive-engineer-vs-construction-baroda' $args = array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) $url = 'https://sooperkanoon.com/case/amp/749569/state-gujarat-thr-executive-engineer-vs-construction-baroda' $ctype = ' High Court' $caseref = 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.<br>' $content = array( (int) 0 => 'ORDER<p>K.A. Puj, J.', (int) 1 => '<p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.', (int) 2 => '<p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.', (int) 3 => '<p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.', (int) 4 => '<p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.', (int) 5 => '<p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.', (int) 6 => '<p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.', (int) 7 => '<p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.', (int) 8 => '<p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.', (int) 9 => '<p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.', (int) 10 => '<p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.', (int) 11 => '<p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.', (int) 12 => '<p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.', (int) 13 => '<p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.', (int) 14 => '<p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.', (int) 15 => '<p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p>', (int) 16 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 17 $i = (int) 14include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p style="text-align: justify;">K.A. Puj, J.</p><p style="text-align: justify;">1. The petitioner has filed this petition under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p style="text-align: justify;">2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p style="text-align: justify;">3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p style="text-align: justify;">4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p style="text-align: justify;">5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p style="text-align: justify;">6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p style="text-align: justify;">7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p style="text-align: justify;">8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> was applicable in the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p style="text-align: justify;">9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p style="text-align: justify;">10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p style="text-align: justify;">11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p style="text-align: justify;">12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p style="text-align: justify;">13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p style="text-align: justify;">14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p style="text-align: justify;">The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'state-gujarat-thr-executive-engineer-vs-construction-baroda', 'args' => array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) ) $title_for_layout = 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p>K.A. Puj, J.</p><p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ) $casename_url = 'state-gujarat-thr-executive-engineer-vs-construction-baroda' $args = array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) $url = 'https://sooperkanoon.com/case/amp/749569/state-gujarat-thr-executive-engineer-vs-construction-baroda' $ctype = ' High Court' $caseref = 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.<br>' $content = array( (int) 0 => 'ORDER<p>K.A. Puj, J.', (int) 1 => '<p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.', (int) 2 => '<p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.', (int) 3 => '<p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.', (int) 4 => '<p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.', (int) 5 => '<p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.', (int) 6 => '<p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.', (int) 7 => '<p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.', (int) 8 => '<p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.', (int) 9 => '<p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.', (int) 10 => '<p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.', (int) 11 => '<p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.', (int) 12 => '<p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.', (int) 13 => '<p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.', (int) 14 => '<p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.', (int) 15 => '<p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p>', (int) 16 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 17 $i = (int) 15include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
The petition is accordingly allowed. Rule is made absolute without any order as to costs.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p style="text-align: justify;">K.A. Puj, J.</p><p style="text-align: justify;">1. The petitioner has filed this petition under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p style="text-align: justify;">2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p style="text-align: justify;">3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p style="text-align: justify;">4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p style="text-align: justify;">5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p style="text-align: justify;">6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p style="text-align: justify;">7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p style="text-align: justify;">8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> was applicable in the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p style="text-align: justify;">9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p style="text-align: justify;">10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p style="text-align: justify;">11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p style="text-align: justify;">12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p style="text-align: justify;">13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p style="text-align: justify;">14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p style="text-align: justify;">The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'state-gujarat-thr-executive-engineer-vs-construction-baroda', 'args' => array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) ) $title_for_layout = 'State of Gujarat Thr Executive Engineer Vs Spun Pipe and Construction Co Baroda Pvt Ltd 05 10 2007 Gujhc - Citation 749569 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '749569', 'acts' => '<a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Sections 34 and 34(3); <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 4, 5, 12, 14 and 29(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Spl. Civil Appln. No. 4542 of 2006', 'appellant' => 'State of Gujarat thr' Executive Engineer', 'authreffered' => '', 'casename' => 'State of Gujarat thr' Executive Engineer Vs. Spun Pipe and Construction Co. (Baroda) Pvt. Ltd. (05.10.2007 - GUJHC)', 'casenote' => ' - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. - Because of the failure on the part of the respondent No. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. 12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. 14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex.', 'caseanalysis' => null, 'casesref' => 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.;', 'citingcases' => '', 'counselplain' => ' Niraj Soni, Assistant Govt. Pleader', 'counseldef' => ' K.G. Sukhwani, Adv.', 'court' => 'Gujarat', 'court_type' => 'HC', 'decidedon' => '2007-10-05', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' K.A. Puj, J.', 'judgement' => 'ORDER<p>K.A. Puj, J.</p><p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.</p><p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.</p><p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.</p><p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.</p><p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.</p><p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.</p><p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.</p><p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.</p><p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.</p><p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.</p><p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.</p><p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.</p><p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.</p><p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.</p><p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR2008Guj29; 2008(1)ARBLR624(Gujarat); (2008)1GLR525', 'ratiodecidendi' => '', 'respondent' => 'Spun Pipe and Construction Co. (Baroda) Pvt. Ltd.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ) $casename_url = 'state-gujarat-thr-executive-engineer-vs-construction-baroda' $args = array( (int) 0 => '749569', (int) 1 => 'state-gujarat-thr-executive-engineer-vs-construction-baroda' ) $url = 'https://sooperkanoon.com/case/amp/749569/state-gujarat-thr-executive-engineer-vs-construction-baroda' $ctype = ' High Court' $caseref = 'Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr.<br>' $content = array( (int) 0 => 'ORDER<p>K.A. Puj, J.', (int) 1 => '<p>1. The petitioner has filed this petition under Articles 226 and 227 of the <a>Constitution of India</a> challenging the order passed by the learned Additional District Judge, Vadodara below an application Exh. 17 in Misc. Application (Arbitration) No. 148 of 2002 on 6 10-2005, whereby further objections filed by the petitioner vide Exh. 16 were ordered 10 be rejected and ordered to be filed.', (int) 2 => '<p>2. It is the ease of the petitioner that the State of Gujarat invited the tenders pertaining to the work of providing and connecting the Hume Steel Pipes. An agreement between the parties was entered into on 14-7-1992. The work order was issued to the present respondent No. 1. The respondent No. 1 was required to complete the work within the prescribed time period. Because of the failure on the part of the respondent No. 1 90% work was completed and 10% work was to be completed in February, 1995. The respondent No. 1 carried out work of Rs. 99,98,054/- and the tender cost was fixed at Rs. 1,01.53,000/-. Payment thereof had already been made lay the State Government through various running account bills. The respondent No. 1 submitted the final bill in the year 1995 wherein they have claimed an amount of Rs. 51,000/- as dues along with nine points, towards various dues on 21-1-1995. The total final bill as per say of the respondent came to Rs. 9.94 lacs. The respondent. No. 1 sent reminders for Rs. 9.94 lacs. On 28-9-1996 the respondent No. 1 gave notice for Rs. 1 crore approximately without giving any details towards those claims and without producing any evidence to. support the claim. The said claim was made after the expiry period of one and half years of submitting the final bill. The respondent No. 1 preferred an arbitration proceeding and Mr. R.O. Parikh was appointed as sole Arbitrator who passed an award on 16 5-2002 in favour of the respondent No. 1.', (int) 3 => '<p>3. Being aggrieved and dissatisfied with the award passed by the sole Arbitrator on 16-5-2002, the petitioner preferred Civil Misc. Application (Arbitration) No. 148 of 2002 before the District Court. Vadodara. The said application was preferred within the prescribed time limit as per the provision contained in Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a>. At the time of filing of the objections, the petitioner reserved right for filing detailed objections in future. The respondent No. 1 has not filed his reply. On 18-10-2003, the petitioner filed further detailed objections for clarifying certain details before the District Court, Vadodara at Ex. 16.', (int) 4 => '<p>4. On 15-11-2003 the respondent No. I filed preliminary objection at Ex. 17 whereby the respondent No. 1 had taken objection that the further objection cannot be filed as the time limit for filing objections under Section 34(3) of the Act has already been over. The learned District Judge, Vadodara has allowed the said application vide his order dated 6-10-2005 and held that the further objections filed by the petitioner vide Ex. 16 are not within the prescribed period of time.', (int) 5 => '<p>5. It is this order of learned Additional District Judge, Vadodara which is under challenge in the present petition.', (int) 6 => '<p>6. This Court has admitted the petition and rule was issued on 13-3-2006 and notice as to interim relief was also issued on the same date. On 26-4-2006 the Court has passed an order directing the registry to fix the matter for final hearing in the first week of July, 2006 and during the pendency of the petition, further proceeding in connection with Civil Misc. Application No. 148 of 2002 pending before the District Court was ordered to be stayed.', (int) 7 => '<p>7. Mr. Niraj Soni, learned Assistant Government Pleader appearing for the petitioner has submitted that the order passed by the learned Additional District Judge, Vadodara below an Application Ex. 17 is absolutely unjust, illegal and arbitrary. It is further submitted that the learned Additional District Judge has misread and misconstrued the provisions of law. The learned Judge has failed to appreciate that provisions contained under Section 34(3) of the Act are applicable only to the filing of objection petition against the order/award of the Arbitrator which does not apply to the details provided subsequently by any of the party. He has further submitted that the petitioner has already filed his objection within a prescribed time limit as per Section 34(3) of the Act. It is further submitted that from bare reading of the Section, it becomes very clear that nowhere it is stated that the further details/further objections cannot be filed thereafter. He has further submitted that non-acceptance of application Ex. 16 would adversely affect the case of the petitioner and hence in the interest of justice, it should have been taken into consideration before deciding the award/order passed by the Arbitrator on its own merits.', (int) 8 => '<p>8. In support of his submission Mr. Soni has relied on the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. J.A. Infra Structure (P) Ltd. reported in (2006) 8 Supreme Court Cases 21, wherein the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and to decide the same on merit after, affording opportunity to the respondent. In that case, the Insurance Company filed Arbitration Petition under Section 34 of the <a>Arbitration and Conciliation Act, 1996</a> in the High Court of Judicature at Bombay and the said petition was dismissed for want of jurisdiction and the Insurance Company thereafter filed fresh petition under Section 34 of the Act before the District Court, Nagpur along with application under Section 14 of the Limitation Act on 17-1-2005, The District Court, Nagpur dismissed the application filed by the appellant Insurance Company under Section 14 of the Limitation Act and consequently, the application filed under Section 34 of the Act also stood dismissed. Aggrieved against the order passed by the District Court, the appellant again filed a writ petition before the High Court of Bombay at Nagpur Bench which was also dismissed on 21-12-2005. Aggrieved by the said judgment dated 21-12-2005, the appellant preferred the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court following its own judgment in the case of Western Builders, reported in : AIR2006SC2525 held that Section 14 of the <a>Limitation Act, 1963</a> was applicable in the <a>Arbitration and Conciliation Act, 1996</a> and that the view taken by the Court below excluding the applicability of Section 14 in the said proceeding was not correct. Therefore, the order passed by the High Court was set aside and the matter was remitted back to the District Court to decide the objections under Section 34(3) of the <a>Arbitration and Conciliation Act, 1996</a> and decide the same on merit after affording opportunity to the other party.', (int) 9 => '<p>9. Based on the aforesaid judgment, Mr. Soni strongly urged that here in the present case, the petitioner has filed original objections in time and leave was prayed for to file detailed objections later on. The petitioner was under the bona fide belief that the petitioner could file the further objection since no objection was raised by other side. When the said objections were filed later on which cannot be thrown on the ground that the provisions contained under Section 34(3) of the Act would not permit to file such objections.', (int) 10 => '<p>10. Mr. Sukhwani, learned advocate appearing for the respondent on the. other hand has strongly urged that no interference is called for in the order passed by the learned Additional District Judge, Vadodara. He has further submitted that the law does not permit the petitioner to file detailed objections once the time limit prescribed under Section 34(3) of the Act has elapsed. The petitioner has filed objection on 14-8-2002 i.e. within a period of 3 months. Thereafter, grace period of 30 days is permissible and hence beyond the period of 120 days no further objections can be filed. Since the learned Additional District Judge decided the matter keeping in mind the provisions contained in Section 34(3) of the Act, the petitioner does> not deserve any relief from this Court and the petition is required to be dismissed on this ground.', (int) 11 => '<p>11. In support of his submission, Mr. Sukhwani relied on the decision of Hon'ble Supreme Court in the case of Union of India v. Popular Construction Co. reported in 2001 (3) RAJ 163 (SC) : AIR 2001 SC 4010 and Bombay High Court decisions in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited reported in 2001 (4) RAJ 215 (Bom) and Esteem Mercantile Pvt. Ltd. v. K. H. Parekh and Anr. reported in 2002 (1) RAJ 551 (Bom). Based on these judgments he has submitted that the further objections cannot be filed after the expiry of period of 120 days as prescribed under Section 34(3) of the Act.', (int) 12 => '<p>12. After having heard learned advocates for the respective parties and after having gone through the order passed by the learned Additional District Judge, Vadodara as well as the pleadings raised before the Court and the authorities cited, the Court is of the view that the provisions contained in Section 34(3) of the Act have not been properly dealt with by the learned Additional District Judge. These provisions are applicable only to filing of the original objections against the award. Admittedly in the present case the petitioner has filed the objections in time i.e. within a period of 3 months. While filing the original objections, the petitioner has prayed for leave to file further objections. At that point of time, the respondent has not raised any objection nor the Court has refused to grant such leave. When further objections were filed by the petitioner vide Exh. 16, the respondent No. 1 filed application Exh. 17 raising preliminary objection. Since the leave was prayed for by the petitioner to file further objection and it was neither objected nor expressly rejected, the respondents cannot raise such objection subsequently. In this view of the matter, the ratio laid down by the Hon'ble Supreme Court in the Case of Union of India v. Popular Construction Co. (Supra) will straightway be applicable to the facts of the present case and in any case the Hon'ble Supreme Court has quashed and set aside the order and directed the District Court to decide the objections on merit.', (int) 13 => '<p>13. As far as the decisions cited by Mr. Sukhwani are concerned, the first decision is in respect of filing of the original objection and the Court took the view that where the legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of 60 days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the special inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded. The Court further observed that as far as language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). The Court, therefore, took the view that this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result. Admittedly, this decision is not applicable as the petitioner has filed the objections well within the time and the question with regard to filing of further objections did not arise before the Hon'ble Supreme Court. So far as decisions of Bombay High Court in the case of Vastu Invest & Holdings Private Limited v. Gujarat Lease Financing Limited and in the case of Esteem Mercantile Pvt. Ltd. v. K.H. Parekh and Anr. (Supra) are concerned, these decisions are in respect of seeking an amendment in the objections filed. Here, in the present case, the petitioner has not sought any amendment and hence these decisions are not applicable to the facts of the present case.', (int) 14 => '<p>14. Considering the overall view of the matter and further considering the well recognized principle of law, equity and justice, the Court is of the view that the further objections filed by the petitioner vide application Ex. 16 are required to be taken into consideration. The Court is therefore of the view that the impugned order passed by the learned Additional District Judge, Vadodara is not sustainable and it is therefore quashed and set aside. The learned Additional District Judge, Vadodara is hereby directed to consider further objections raised by the petitioner vide application Ex. 16 and decide the: same along with the original application on their own merit.', (int) 15 => '<p>The petition is accordingly allowed. Rule is made absolute without any order as to costs.<p>', (int) 16 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 17 $i = (int) 16include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109