Full Judgment Text
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PETITIONER:
THE ENGINEERING MAZDOOR SABHA REPRESENTING WORKMEN EMPLOYED
Vs.
RESPONDENT:
THE HIND CYCLES LTD., BOMBAY(And Connected Appeal)
DATE OF JUDGMENT:
18/10/1962
BENCH:
GAJENDRAGADKAR, P.B.
BENCH:
GAJENDRAGADKAR, P.B.
SINHA, BHUVNESHWAR P.(CJ)
WANCHOO, K.N.
GUPTA, K.C. DAS
SHAH, J.C.
CITATION:
1963 AIR 874 1963 SCR Supl. (1) 625
CITATOR INFO :
RF 1964 SC1140 (13)
R 1965 SC1595 (23,42)
R 1968 SC 384 (8)
F 1976 SC 425 (10)
RF 1977 SC2155 (24)
RF 1980 SC1896 (80)
D 1987 SC1629 (17)
ACT:
Industrial Dispute-Reference to arbitration by agreement of
parties-Arbitration award-Appeal by special leave-Compe-
tence-Industrial Disputes Act, 1947(14 of 1947). ss.
10,10A,18-Constitution of India, Art. 136.
HEADNOTE:
The dispute between the respondent company and its workmen
was voluntarily referred to arbitration by their agreement
dated December 3, 1959, under s. 10A of the Industrial
Disputes Act, 1947. Section 10A(2) prescribed the form of
agreement which required that the parties should state that
they had agreed to refer the subsisting industrial dispute
to the arbitration of the persons to be named in the form.
Section 18(2) provided that the arbitration award shall be
binding on the parties to the agreement. The arbitrator
named by the parties entered. upon the reference on December
14, 1959, and pronounced his award on April 8, 1960. The
appellants seeking to challenge the validity of the award
applied for and obtained special leave to appeal to the
Supreme Court against the decision of the arbitrator. The
respondent pleaded that the appeal was not competent because
the arbitrator was not a tribunal under Art. 136 of the
Constitution of India.
Held, that the decision of an arbitrator to whom industrial
disputes are voluntarily referred under s. 10A of the Indus-
trial Disputes Act, 1947, is quasi-judicial in character and
amounts to a determination or order under Art. 136(1) of the
Constitution of India, but the arbitrator is not a tribunal
within the meaning of that Article because the State has not
invested him with its inherent judicial power and the power
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of adjudication which he exercises is derived by him from
the agreement of the parties. Consequently, an appeal
against the decision of an arbitrator under s. 10A of the
Act does not lie under Art. 136 of the Constitution.
626
Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank
Ltd., Delhi, [1950] S.C.R. 459, Province of Bombay v.
Kusaldas S. Advani & Others, [ 1 950] S. C. R. 621 and Durga
Shankar Mehta v. Thakur Raghuraj Singh, [1955] 1 S. C. R.
267, relied on.
Semble, Art. 226 of the Constitution of India under which a
writ of certiorari can be issued in an appropriate case is
wider than Art. 136 because the power conferred on the High
Court to issue, certain writs is not conditioned or limited
by the requirement that the said writs can be issued only
against the orders of courts or tribunals.
JUDGMENT:
CIVIL APPELLANTS JURISDICTION : Civil Appeals Nos. 182 and
183 of 1962.
Appeal by special leave from the Award dated April 8, 1960,
of the Arbitrator, Bombay.
Civil Appeal No. 204 of 1962.
Appeal by special leave from the Award dated August 27,
1961, of the Arbitrator, Coimbatore.
K. T. Sule and K. R. Choudhri, for the appellants (in C.
A. Nos. 182 and 1 83 of 1962).
C. K. Daphtary, Solicitor-General of India, S. K. Bose
and Sardar Bahadur, for the respondent (in C. A. Nos. 182
and 183 of 1962).
G. B. Pai, J.B. Dadachanji, O. C. Mathur and Ravinder
Narain, for the appellant (in C.A. No. 204 of 1962).
A. S. R. Chari, M. K. Ramamurthi, R. K. Garg, D. P.
Singh and S. C. Agarwala, for the respondents (in C. A. No.
204 of 1962).
1962. October 1. 8. The judgment of the Court was delivered
by
GAJENDRAGADIKAR, J.-These three appeals have been placed for
hearing together because the respective respondents in the
said appeals have raised the same preliminary objection
against their competence. Civil Appeals Nos. 182 and
183/1962 have
627
been filed against the award pronounced by Mr. D.V. Vyas on
April 8, 1960, in a dispute between the appellants, the
Engineering Mazdoor Sabha & another, and the respondent The
Hind Cycles Limited, Bombay. This dispute was voluntarily
referred to Mr. Vyas under s. 10A of the Industrial Disputes
Act, 1947 (No. 14 of 1947) (hereinafter called the Act), by
the parties by their agreement of December 3, 1959. The
Arbitrator entered upon the reference on December 14, 1959,
and pronounced his award on April 8, 1960. By their
appeals, the appellants have challenged the validity and the
propriety of the said award on several grounds and the
appeals have been brought to this Court by special leave.
The respondent contends that the arbitrator whose award is
challenged was not a Tribunal under Art. 136 of the
Constitution and so, an appeal by special leave is not
competent.
Civil Appeal No. 204/1962 has been filed by the appellant,
the Anglo-American Direct Tea Trading Co. Ltd., against the
respondents, its workmen, and by its appeal, the appellant
seeks to challenge the validity and the correctness of the
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award pronounced by Dr. T. V. Sivanandam to whom the dispute
between the parties was voluntarily referred under s. 10A of
the Act. The award was pronounced on August 27, 1961, and
by special leave the appellant has come to this Court. The
respondents urge that the appeal is incompetent because the
arbitrator is not a Tribunal under Art. 136 of the
Constitution. That is how the question which arises for our
decision on these preliminary objections is whether an
arbitrator to whom parties have voluntarily referred their
disputes for arbitration is a Tribunal under Art. 136.
Article 136(1) provides that notwithstanding anything in
this Chapter, the Supreme Court may., in its discretion,
grant special leave to appeal from ,any judgment, decree,
determination, sentence or
628
order in any cause or matter passed or made by any court or
tribunal in the territory of India. Sub-article (2)
excludes from the scope of sub-Art. (1) any judgment,
determination, sentence or order passed or made by any court
or tribunal constituted by or under any law relating to the
Armed Forces. It is clear that Art. 136(1) confers very
wide powers on this Court and as such, its provisions have
to be liberally construed. The constitution-makers thought
it necessary to clothe this Court with very wide powers to
deal with all orders and adjudications made by Courts and
Tribunals in the territory of India in order to ensure fair
administration of justice in this country. It is
significant that whereas Arts. 133(1) and 134 (1) provide
for appeals to this Court against judgments, decrees or
final orders passed by the High Courts, no such limitation
is prescribed by Art. 136(1). All Courts and all Tribunals
in the territory of India except those in cl. (2) are
subject to the appellate jurisdiction of this Court under
Art. 136(1) It is also clear that whereas the appellate
jurisdiction of this Court under Arts. 133(1) and 134(1) can
be invoked only against final orders, no such limitation is
imposed by Art. 136(1). In other words, the appellate
jurisdiction of this Court under this latter provision can
be exercised even against an interlocutory order or
decision. Causes or matters covered by Art. 136(1) are all
causes and matters that are brought for adjudication before
Courts or Tribunals. The sweep of this provision is thus
very wide. It is true that in exercising its powers under
this Article, this Court in its discretion refuses to
entertain applications for special leave where it appears to
the Court that interference with the orders sought to be
appealed against may not be necessary in the interest of
justice. But the limitations thus introduced, in practice,
are the limitations imposed by the Court itself in its
discretion. They are not prescribed by Art. 136(1).
For invoking Art. 136(1), two condition must be satisfied.
The proposed appeal must be from any
629
judgment, decree, determination, sentence or order, that is
to say, it must not be against a purely executive or
administrative order. If the determination or order giving
rise to the appeal is a judicial or quasi-judicial
determination or order, the first condition is satisfied.
The second condition imposed by the Article is that the said
determination or order must have been made or passed by any
Court or Tribunal in the territory of India. These
conditions, therefore, require that the act complained
against must have the character of a judicial or quasi-judi-
cial act and the authority whose act is complained against
must be a Court or a Tribunal. Unless both the conditions
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are satisfied, Art. 136 (1) cannot be invoked.
The distinction between purely administrative or executive
acts and judicial or quasi-judicial acts has been considered
by this Court on several occasions. In the case of Province
of Bombay v. Kusaldas s. Advani, (1) Mahajan, J., observed
that the question whether an act is a judicial or a quasi-
judicial one or a purely executive act depends on the terms
of the particular rule and the nature, scope and effect of
the particular power in exercise of which the act may be
done and would, therefore, depend on the facts and
circumstances of each case. Courts of law established by
the State decide cases brought before them judicially and
the decisions thus recorded by them fall obviously under the
category of judicial decisions. Administrative or executive
bodies, on the other hand, are often called upon to reach
decisions in several matters in a purely administrative or
executive mariner and these decisions fall clearly under the
category of administrative or executive orders. Even judges
have, in certain matters, to act administratively, while
administrative or executive authorities may have to act
quasi-judicially in dealing with some matters entrusted to
their jurisdiction. Where an authority is required to act
judicially either
(1) [1950] S. C. R. 621.
630
by an express provision of the statute under which it acts
or by necessary implication of the said statute, the
decisions of such an authority generally amount to quasi-
judicial decisions. Where, however, the executive or
administrative bodies are not required to act judicially and
are competent to deal with issues referred to them
administratively, their conclusions cannot be treated as
quasi-judicial conclusions. No doubt, even while acting
administratively, the authorities must act bonafide; but
that is different from saying that they must act judicially.
Bearing in mind this broad distinction between acts or
orders which are judicial or quasi-judicial on the one hand
and administrative or executive acts on the other, there is
no difficulty in holding that the decisions of the
arbitrators to whom industrial disputes are voluntarily
referred under s. 10A of the Act are quasi judicial
decisions and they amount to a determination or order under
Art. 136 (1). This position is not seriously disputed
before us. What is in dispute between the parties is not
the character of the decisions against which the appeals
have been filed, but it is the character of the authority
which decided the disputes. The respondents contend that
the arbitrators whose awards are challenged, are not
Tribunals, whereas the appellants contend that they are.
Article 136(1) refers to a Tribunal in contradistinction to
a Court. The expression "a Court" in the technical sense is
a Tribunal constituted by the State as a part of ordinary
hierarchy of courts which are invested with the State’s
inherent judicial powers. The Tribunal as distinguished
from the Court, exercises judicial powers and decides
matters brought before it judicially or quasi judicially,
but it does not constitute a court in the technical sense.
The Tribunal, according to the dictionary meaning, is a seat
of justice; and in the discharge of its functions, it shares
some of the characteristics of the court. A domestic
Tribunal appointed in departmental proceedings, for
631
instance, or instituted by an industrial employer cannot
claim to be a Tribunal under Art. 136(1). Purely
administrative Tribunals are also outside the scope of the
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said Article. The Tribunals which are contemplated by Art.
136(1) are clothed with some of the powers of the courts.
They can compel witnesses to appear, they can administer
oath, they are required to follow certain rules of
procedure; the proceedings before them are required to
comply with rules of natural justice, they may not be bound
by the strict and technical rules of evidence, but,
nevertheless, they must decide on evidence adduced before
them; they may not be bound by other technical rules of law,
but their decisions must, nevertheless, be consistent with
the general principles of law. In other words, they have to
act judicially and reach their decisions in an objective
manner and they cannot proceed purely administratively or
base their conclusions on subjective tests or inclinations.
The procedural rules which regulate the proceedings before
the Tribunals and the powers conferred on them in dealing
with matters brought before them, are sometimes described as
the "trappings of a court’ and in determining the question
as to whether a particular body or authority is a Tribunal
or not, sometimes a rough and ready test is applied by
enquiring whether the said body or authority is clothed with
the trappings of a court.
In Shell Company of Australia, Ltd. v. Federal COMMissioner
of Taxation (1), the Privy Council had to consider whether
the Board of Review created by s. 41 of the (Federal) Income
Tax Assessment Act, 1922-25, to review the decisions of the
Commissioner of Taxation, was a court exercising the
judicial power of the Commonwealth within. the meaning of s.
71 of the Constitution of Australia; and it was held that it
was not a court but was an administrative tribunal. Lord
Sankey, L. C., examined the relevant provisions of the
statute which created the said Board and came to the
conclusion that the Board appeared to be in
(1) [1931] A. C. 275.
the nature of administrative machinery to which the taxpayer
can resort at his option in order to have his contentions
reconsidered. He then added that an administrative tribunal
may Act judicially, but still remain an administrative
tribunal as distinguished from a Court, strictly so-called.
Mere externals do not make a direction to an administrative
officer by an ad hoc tribunal an exercise by a court of
judicial power (pp. 297-298). It is in this connection that
Lord Sankey observed that the authorities are clear to show
that there are tribunals with many of the trappings of a
Court which, nevertheless, are not Courts in the strict
sense of exercising judicial power. In that connection, His
Lordship enumerated some negative propositions. He observed
that a Tribunal does not become a Court because it gives a
final decision, or because it hears witnesses on oath, or
because two or more contending parties appear before it
between whom it has to decide,. or because it gives
decisions which affect the rights of subjects, or because
there is an appeal to a Court, or because it is a body to
which a matter is referred by another body (pp. 296-297).
These negative propositions indicate that the features to
which they refer may constitute the trappings of a Court;
but the presence of the said trappings does not necessarily
make the Tribunal a Court. It is in this context that the
picturesque phrase ’the trappings of a Court’ came to be
used by the Privy Council.
This question was considered by this Court in The Bharat
Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd.,
Delhi. (1) This decision is apposite for our purpose because
the question which came to be determined was in regard to
the character of the Industrial Tribunals constituted under
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the Act. The majority decision of this Court was that the
functions and duties of the Industrial Tribunal are very
much like those of a body discharging judicial functions and
so, though the Tribunal is not a Court,
(1) [1950] S. C. R. 459,
633
it is nevertheless a Tribunal for the purposes of Art. 136.
In other words, the majority decision which, in a sense, was
epoch making, held that the appellate jurisdiction of this
Court under Art. 136 can be invoked in proper cases against
awards and other orders made by Industrial Tribunals under
the Act. In discussing the question as to character of the
Industrial Tribunal functioning under the Act, Mahajan, J.,
observed that the condition precedent for bringing a
tribunal within the ambit of Art. 136, is that it should be
constituted by the State; and he added that a Tribunal would
be outside the ambit of Art. 136 if it is not invested with
any part of the judicial functions of the State but
discharges purely administrative or executive duties. In
the opinion of the learned judge, Tribunals which are found
invested with certain functions of a Court of justice and
have some of its trappings also would fall within the ambit
of Art. 136 and would be Subject to the appellate control of
this Court whenever it is found necessary to exercise that
control in the interests of justice. It would thus be
noticed that apart from the importance of the trappings of a
Court, the basic and essential condition which makes an
authority or a body a tribunal under Art. 136, is that it
should be constituted by the State and should be invested
with the State’s inherent judicial power. Since this test
was satisfied by the Industrial Tribunals under the Act,
according to the majority decision, it was held that the
awards made by the Industrial Tribunals are subject to the
appellate jurisdiction of this Court under Art. 136.
In Durga Shankar Mehta v. Thakur Raghuraj Singh (1),
Mukherjea, J., who delivered the unanimous opinion of the
Court observed that it was well settled by the majority
decision of this Court in the case of Bharat Bank Ltd. (2)
that the expression "Tribunal" as used in Art. 136 does not
mean the same thing as "Court" but includes, within its
ambit, all adjudicating bodies,
(1) [1955] 1 S.C.R. 267.
(2) [1950] S.C.R. 459.
634
provided they are constituted by the State and are invested
with judicial as distinguished from purely administrative or
executive functions. Thus, there can be no doubt that the
test which has to be applied in determining the character of
an adjudicating body is whether the said body has been
invested by the State with its inherent judicial power’.
This test implies that the ad indicating body should be
constituted by the State and should be invested with the
State’s judicial power which it is authorised to exercise.
The same principle has been reiterated in Harinagar Sugar
Mills Ltd. v. Shyam Sunder Jhunjhunwala (1).
It is now necessary to examine the scheme of the relevant
provisions of the Act bearing on the voluntary reference to
the arbitrator, the powers of the said arbitrator and the
procedure which he is required to follow. Section 16A under
which voluntary reference has been made in both the cases
was added to the Act by Act 36 of 1956. It reads as under
:-
"10A. (1) Where any industrial dispute exists
or is apprehended and the employer and the
workmen agree to refer the dispute to
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arbitration, they may, at any time before the
dispute has been referred under section 10 to
a Labour Court or Tribunal or National
Tribunal, by a written agreement, refer the
dispute to arbitration and the reference shall
be to such person or persons (including the
presiding officer of a Labour Court or
Tribunal or National Tribunal) as an
arbitrator or Arbitrators as may be specified
in the arbitration agreement.
(2) An arbitration agreement referred to in
sub-section (1) shall be in such form and
shall be signed by the parties thereto in such
manner as may be prescribed,
(1) [1962] 2 S.C.R. 339
635
(3) A copy of the arbitration agreement
shall be forwarded to the appropriate
Government and the conciliation officer and
the appropriate Government shall, within
fourteen days from the date of the receipt of
such copy, publish the same in the official
Gazette.
(4) The arbitrator or arbitrators shall
investigate the dispute and submit to the
appropriate Government the arbitration award
signed by the arbitrator or all the
arbitrators, as the case may be.
(5) Nothing in the arbitration Act, 1940
shall apply to arbitrations under this
section."
Consequent upon the addition of this section, several
changes were made in the other provisions of the Act.
Section 2 (b) which defines an award was amended by the
addition of the words "it includes an arbitration award made
under section 10A". In other words, as a result of the
amendment of the definition of the word "award", an
arbitration award has now become an award for the purposes
of the Act. The inclusion of the arbitration award within
the meaning of s. 2 (b) has led to the application of
sections 17, 17A, 18(2), 19 (3), 21, 29, 30, 33C and 36A to
the arbitration award. Under s. 17 (2), an arbitration
award when published under s. 17 (1), shall be final and
shall not be called in question by any Court in any manner
whatsoever. Section 17A provides that the arbitration
agreement shall become enforceable on the expiry of thirty
days from the date of its publication 1 under s. 17, and
under s. 18(2), it is binding on the parties to the
agreement who referred the dispute to arbitration; under s.
19(3), it shall. subject to the provisions of s, 19, remain
in operation for a period of one year provided that the
appropriate Government may reduce the said period and- fix
such
636
other period as it thinks fit; provided further that the
said period may also be extended as prescribed under the
said proviso. The other sub-sections of s. 19 would also
apply to the arbitration award. Section 21 which requires
certain matters to be kept confidential is applicable and so
section 30 which provides for a penalty for the
contravention of s. 21, also applies. Section 29 which
provides for penalty for breach of an award can ’be invoked
in respect of an arbitration award. Section 33C which
provides for a speedy remedy for the recovery of money from
an employer is applicable; and s. 36A can also be invoked
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for the interpretation of any provision of the arbitration
award. In other words, since an arbitration award has been
included in the definition of the word ’Award’ these
consequential changes have made the respective provisions of
the Act applicable to an arbitration award.
On the other hand, there are certain provisions which do not
apply to an arbitration award. Sections 23 & 24 which
prohibit strikes and lock-outs, are inapplicable to the
proceedings before the arbitrator to whom a reference is
made under s. 10A, and that shows that the Act has treated
the arbitration award and the prior proceedings in relation
to it as standing on a different basis from an award and the
prior proceedings before the Industrial Tribunals or Labour
Courts. Section 20, which deals with the commencement and
conclusion of proceedings,, provides, inter alia, by sub-s.
(3) that proceedings before an arbitrator under s. 10A shall
be deemed to have commenced on the date of the reference of
the dispute for arbitration and such proceedings shall be
deemed to have concluded on the date on which the award be-
comes enforceable under s. 17A. It would be noticed that
just as in the case of proceedings before the Industrial
Tribunal commencement of the Proceedings is marked by the
reference under s. 10, so the commencement of the
proceedings before the arbitrator
637
is marked by the reference made by the parties themselves,
and that means the commencement of the proceedings takes
place even before the appropriate Government has entered on
the scene and has taken any action in pursuance of the
provisions of s. 10A.
Rules have been framed by the Central Government and some of
the State Governments under s. 38(2) (aa). and These
rules make provisions for the form of arbitration agreement,
the place and time of hearing, the power of the
arbitrator to take evidence, the manner in which the summons
should be served, the powers of the arbitrator to proceed ex
parte, if necessary, and the power to correct mistakes in
the award and such other matters. Some of these Rules (as
for instance, Central Rules 7, 8, 13, 15, 16 & IS to 28)
seem to make a distinction between an arbitrator and the-
other authorities under the Act, whereas the Rules framed by
some of the States (for instance the rules, framed by the
Madras State 31; 37, 38, 39, 40, 41 & 42) seem to treat the
arbitrator on the same basis as the other appropriate
authorities under the Act. That, shortly stated, is the
position of the relevant provisions of the statute and the
Rules framed thereunder. It is in the light of these
provisions that we must now consider the character of the
arbitrator who enters upon arbitration proceedings as-, a
result of the reference made to him under s. 10A.
The learned Solicitor-General contents that such an
arbitrator is no more and no better than a private
arbitrator, to whom a reference can be made by the parties
under an arbitration agreement as defined by the
Arbitration Act, 1940 (No. X of 1940). He argues that such
an arbitrator has to act judicially, has to follow a, fair
procedure, take evidence, hear the parties and come to his
conclusion in the light of the evidence adduced before him;
and that is all that the arbitrator to whom reference is
made under s. 10A does. i ’It may be that the arbitration
award is treated as an award for certain purposes
638
under the Act; but the position, in law, still remains that
it is an award made by an arbitrator appointed by the
parties. Just as an award made by a private arbitrator
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becomes a decree subject to the provisions of ss. 15, 16, 17
and 30 of the Arbitration Act, and thus binds the parties,
so does an award of the arbitrator under s. 10A become
binding on the parties by virtue of the relevant provisions
of the Act. Against an award made by a private arbitrator,
no writ can issue under Art. 226; much less can an appeal
lie under Art. 136. The position with regard to the award
made by an arbitrator under s. 10A is no different. In
support of this argument, he has relied on the decision in
R. V. Disputes Committee of the National Joint Council for
the Craft Dental Technicians(1). On a motion for an order
of certiorari to quash an order made by the Disputes Com-
mittee, Lord Goddard, C. J., held that the Court has no
power to direct the issue of orders of certiorari or of
Prohibition addressed to an arbitrator directing that a
decision by him should be quashed or that he be prohibited
from proceeding in an arbitration, unless he is acting under
powers conferred by statute. "There is no instance of which
I know in the books", observed Lord Goddard, "’where
certiorari or prohibition has gone to any arbitrator, except
a statutory arbitrator, and a statutory arbitrator is a
person to whom, by statute, the parties must resort." The
Solicitor-General suggests that though some powers have been
conferred on the arbitrator appointed under s. 10A, he
cannot be treated as a statutory arbitrator, because the
parties are not compelled to go to any person named as such
by the statute. The arbitrator is an arbitrator of the
parties’ choice and so, he cannot be treated as a statutory
arbitrator.
On the other hand, Mr. Pai has urged that it would be
unreasonable to treat the present arbitrator as a private
arbitrator, because s. 10A gives statutory recognition to
the appointment of the arbitrator and
(1) [1953] 1 All. E. R. 327.
639
the consequential changes made in the Act and the statutory
rules framed thereunder clearly show that he has been
clothed with quasi-judicial powers and his proceedings are
regulated by rules of procedure. Therefore, it would be
appropriate to treat him as a statutory arbitrator and as
such, a writ of certiorari would lie against his decision
under Art. 226. In support of this argument, Mr.Pai has
referred us to the decision of the court of Appeal in The
King v. Electricity Commissioners Ex-parte London Electri-
city Joint Committee Co. (1920) Ltd.(1) In that, case, the
scheme framed by the Electricity Commissioners established
by s. 1 of the Electricity (Supply) Act, 1919, was
challenged and it was held that the impugned scheme was
ultra vires, and so, a writ of prohibition was issued
prohibiting the Commissioners from proceeding with the
further consideration of the scheme. Dealing with the
question as to whether a writ can issue against a body like
the Electricity Commissioners constituted under the Act,
Lord Atkin referred to the genesis and the history of the
writs of prohibition and certiorari and held ’that the
operation of the writs has extended to control the proceed-
ings of bodies which do not claim to be, and would not be
recognised as, Courts of justice. Wherever any body of
persons having legal authority to determine questions
affecting the rights of subjects, and having the duty to act
judicially, act in excess of their legal authority they are
subject to the controlling jurisdiction of the King’s Bench
Division exercised in these writs (p. 205). Then Lord Atkin
referred to a large number of previous decisions in which
writs had been issued against different authorities
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statutorily entrusted with the discharge of different
duties. To the same effect is the decision in the case of
R. V. Northumberland Compensation ’Appeal Tribunal Ex-parte
Shaw, (2) "de also Halsbury’s Laws of England 3rd Edn.,
Vol.. 2, p.,62, and Vol. II, p. 122.
(1) [1924] 1 K.B.D. 171, (2) [1951] 1 All. E.R. 268.
The argument, therefore, is that against an award Pronounced
by an arbitrator appointed under s. 10A, a writ of
certiorari would lie under Art. 226, and so, the arbitrator
should be deemed to be a Tribunal even for the purposes of
Art. 136. In our opinion, this argument is not well-
founded. Art. 226 under which a writ of certiorari can be
issued in an appropriate case, is, in a sense, wider than
Art . 1336, because the power conferred on the High Courts
to issue certain writs is not conditioned or limited by the
requirement that the said writs can be issued only against
the orders of Courts or Tribunals. Under Art. 226(1), an
appropriate writ can be issued to any person or authority,.
including in appropriate cases any Government, within the
territories prescribed. Therefore even if the arbitrator
appointed under section 10A is not a Tribunal under Art. 136
in a proper case, a writ may lie against his award under
Art. 226. That is why the argument that a writ may lie
against an award made by such an arbitrator does not
materially assist the appellants’ case that the arbitrator
in question is a tribunal under Art. 136.
It may be conceded that having regard to several provisions
contained in the Act and the rules framed thereunder, an
arbitrator appointed under s. 10A cannot be treated to be
exactly similar to a private arbitrator to whom a dispute
has been referred under an arbitration agreement under the
Arbitration Act, The arbitrator under s. 10A is clothed with
certain powers, his procedure is regulated by certain rules
and the award pronounced by him is given by statutory
provisions a certain validity and a binding character for a
specified period. Having regard to these provisions, it may
perhaps be, possible to describe such an arbitrator, as in a
loose sense, a statutory arbitrator and to that extent, the
argument of the learned Solicitor-General may be rejected.
But fact that the arbitrator under s. 10A is not exactly
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in the same position as a private arbitrator does not mean
that he is a tribunal under Art. 136. Even if some of the
trappings of a Court are present in his case, he lacks the
basic, the essential and the fundamental requisite in that
behalf because he is not invested with the State’s inherent
judicial power. As we will presently point out, he is
appointed by the parties and the power to decide the dispute
between the parties who appoint him is derived by him from
the agreement of the, parties and from no other source. The
fact that his appointment once made by-the parties is
recognised by s. 10A and after his appointment he is clothed
with certain powers and has thus, no doubt, some of the
trappings of a court, does not mean that the power of
adjudication which he is exercising is derived from the
State and so, the main test which this Court has evolved in
determining the question about the character of an
adjudicating body is not satisfied. He is not a Tribunal
because the State has not invested him’ with its inherent
judicial power and the power of adjudication which he
exercises is derived by him from the agreement of the
parties. His position, thus, may be said to be higher than
that of a private arbitrator and lower than that of a
tribunal. A statutory Tribunal is appointed under the
relevant provisions of a statute which. also compulsorily
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refers to its adjudication certain classified classes of
disputes. That is the essential feature of what is properly
called statutory adjudication or arbitration. That is why
we think the argument strenuously urged before us by Mr. Pai
that a writ of certiorari can lie against his award is of no
assistance to the appellants when they contend that such an
arbitrator is a Tribunal under Art. 136.
Realising this difficulty, Mr. Sule concentrated on the
construction of s. 10A itself and urged that on a fair and
reasonable construction of s. 10A, it should be held that
the arbitrator cannot be distinguished from an Industrial
Tribunal and is therefore, a
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Tribunal under Art. 136. In the Bharat Bank Ltd.(1) case it
has been held that an Industrial Tribunal is a tribunal
under Art. 136 and the arbitrator is no more and no less
than an Industrial Tribunal; and so, the present appeals are
competent, says Mr. Sule.
That takes us to the construction of s. 10A. Section 10A
enables the employer and the workmen to refer their dispute
to arbitration by a written agreement before such a dispute
has been referred to the Labour Court or Tribunal or
National Tribunal under s. 10. If an industrial dispute
exists or is apprehended, the appropriate Government may
refer it for adjudication under s. 10; but before such a
reference is made, it is open to the parties to agree to
refer their dispute to the arbitration of a person of their
choice and if they decide to adopt that course, they have to
reduce their agreement to writing. When the parties reduce
their agreement to writing, the reference shall be to such
person as may be specified in the arbitration agreement.
The section is not very happily worded; but the essential
features of its, scheme are not in doubt. If a reference
has not been made under s. 10, the parties can agree to
refer their dispute to the arbitrator of their choice, the
agreement is followed by writing, the writing specifies the
arbitrator or arbitrators to whom the reference is to be
made and the reference shall be made accordingly to such
arbitrator or arbitrators. Mr. Sule contend sand it is no
doubt an ingenious argument-that the last clause of s. 10A
means that after the written agreement is entered into by
the parties, the reference shall be made to the person named
by the agreement but it shall be made by the appropriate
Government. In other words, the argument is that if the
parties enter into a written agreement as to the person who
should adjudicate.Upon their disputes, it is the Government
that steps in and makes the reference to such named person.
The arbitrator or arbitrators are
(1)[1950] S.C.R. 459.
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initially named by the parties by consent; but it is when a
reference is made to him or them by the appropriate
Government that the arbitrator or arbitrators is or are
clothed with the authority to adjudicate, and so, it is
urged that the act of reference which is the act of the
appropriate Government makes the arbitrator an Industrial
Tribunal and he is thereby invested with the State’s
inherent judicial power.
We do not think that the section is capable of this
construction. The last clause which says that the reference
shall be to such person or persons, grammatically must mean
that after the written agreement is entered into specifying
the person or persons, the reference shall be to such person
or persons. We do not think that on the words as they
stand, it is possible to introduce the Government at any
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stage of the operation of s. 10A (1). The said provision
deals with what the parties can do and provides that if the
parties agree and reduce their agreement to writing, a
reference shall be to the person or persons named by such
writing. The fact that the parties can agree to refer their
dispute to the Labour Court, Tribunal or National Tribunal
makes no difference to the construction of the provision.
Sub-section (2) prescribes the form of agreement and this
form also supports the same construction. This form
requires that the parties should state that they have agreed
to refer the subsisting industrial dispute to the arbitra-
tion of the persons to be named in the form. Then it is
required that the matters in dispute should be specified and
several other details indicated. The form ends with the
statement that the parties agree that the majority decision
of the arbitrators shall be binding on them. This form is
to be signed by the respective parties and to be attested by
two witnesses. In other words, there is no doubt that the
form prescribed by s. 10A (2) is exactly similar to the
arbitration agreement; it refers to the dispute, it names
the arbitrator and it binds the parties to
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abide by the majority decision of the arbitrators. Thus, it
is clear that what s. 10A contemplates is carried out by
prescribing an appropriate form under s. 10A (2).
After the prescribed form is thus duly signed by the parties
and attested, under sub-s. (3) a copy of it has to be
forwarded to the appropriate Government and the conciliation
officer and the appropriate Government has, within fourteen
days from the date of the receipt of such copy, to publish
the same in the official Gazette. The publication of the
copy is, in a sense, a ministerial act and the appropriate
Government has no discretion in the matter. Subsection (4)
provides that the arbitrator shall investigate the dispute
and submit his award to the appropriate Government; and sub-
s. (5) excludes the application of the Arbitration Act to
the arbitrations provided for by s. 10A. It is thus clear
that when s. 10A(4) provides that the arbitrator shall
investigate the dispute; it merely asks the arbitrator to
exercise the powers which have been conferred on him by
agreement of the parties under s. 10A(1). There is no doubt
that the appropriate Government plays some part in these
arbitration proceeding--it publishes the agreement; it
requires the arbitration award to be submitted to it; then
it publishes the award; and in that sense, some of the
features which characterise the proceedings before the
Industrial Tribunal before an award is pronounced and which
characterise the subsequent steps to be taken in respect of
such an award, are common to the proceedings before the
arbitrator and the award that he may make. But the
similarity of these features cannot disguise the fact that
the initial and the inherent power to adjudicate upon the
dispute is derived by the arbitrator from the parties,
agreement, whereas it is derived by the Industrial Tribunal
from the statutory provisions themselves. In this
connection, the provisions of s. 10(2) may be taken into
consideration
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This clause deals with a case where the parties to an
industrial dispute apply in the prescribed manner for a
reference of their dispute to an appropriate authority, and
it provides that the appropriate Government, if satisfied
that the persons applying represent the majority of each
party, shall make the reference accordingly. In other
words, if the parties agree that a dispute pending between
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them should be referred for adjudication, they move the
appropriate Government, and the appropriate Government is
bound to make the reference accordingly. Unlike cases
falling under s. 10 (1) where in the absence of an agreement
between the parties it is in the discretion of the
appropriate Government to refer or not to refer any
industrial dispute for adjudication, under s. 10(2) if there
is an agreement between the parties, the appropriate
Government has to refer the dispute for adjudication. But
the significant fact is that the reference has to be made by
the appropriate Government and not by the parties, whereas
under s. 10A the reference is by the parties to the
arbitrator named by them and it is after the parties have
named the arbitrator and entered into a written agreement in
that behalf that the appropriate Government steps in to
assist the further proceedings before the named arbitrator.
Section 18 (2) is also helpful in this matter. It provides
that an arbitration award which has become enforceable shall
be binding on the parties to the agreement who referred the
dispute to arbitration. It would be noticed that this
provision mentions the parties to the agreement as the
parties who have referred the dispute to arbitration and
that indicates that the act of reference is not the act of
the appropriate Government, but the act of the parties them-
selves.
Section 10A (5) may also be considered in this connection.
If’ the reference to arbitration under s. 10A (1) had
been made by the appropriate
646
Government then the Legislature could have easily used
appropriate language in that behalf assimilating the
arbitrator to the position of an Industrial Tribunal and in
that case, it would not have been necessary to provide that
the Arbitration Act will not apply to arbitrations under
this section. The provisions of s. 10A (5) suggest that
the proceedings contemplated by s. 10A are arbitration
proceedings to which, but for sub-s. (5), the Arbitration
Act would have applied.
On behalf of the appellants, reliance has been placed on a
recent decision of the Bombay High Court in the case of the
Air Corporation Employees’ Union v. D. 17. Vyas (1). In
that case, the Bombay High Court has held that an arbitrator
functioning under s. 10A is subject to the judicial
superintendence of the High Court under Art. 227 of the
Constitution and., therefore, the High Court can entertain
an application for a writ of certiorari in respect of the
orders passed by the arbitrator. It was no doubt urged
before the High Court that the arbitrator in question was
not amenable to the jurisdiction of the High Court under
Art. 227 because he was a private and not a statutory
arbitrator; but the Court rejected the said contention and
held that the proceedings before the arbitrator appointed
under s. 10A had all the essential attributes of a statutory
arbitration under s. 10 of the Act. From the judgment, it
does not appear that the question about the construction of
s. 10A was argued before the High Court or its attention was
drawn to the obvious differences between the provisions of
s. 10A and s. 10. Besides, the attention of the High Court
was apparently not drawn to the tests laid down by this
Court in dealing with the question as to when an
adjudicating body or authority can be deemed to be a
Tribunal under Art. 136. Like Art. 136, Art. 227 also
refers to courts and Tribunals and what we have said about
the character of the arbitrator appointed under s. 10A by
reference to the requirements of Art. 136, may prima facie
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(1) (1961)64 Bom. L. R. 1
647
apply to the requirements of Art. 227. That, however, is a
matter with which we are not directly concerned in the
present appeals.
Mr. Sule made a strong plea before us that if the arbitrator
appointed under s. 10A was not treated as a Tribunal, it
would lead to unreasonable consequences. He emphasised that
the policy of the legislature in enacting section 10A was to
encourage industrial employers and employees to avoid
bitterness by referring their disputes voluntarily to the
arbitrators of their own choice, but this laudable object
would be defeated if it is realised by the parties that once
reference is made under s. 10A the proceedings before the
arbitrator are not subject to the scrutiny of this Court
under Art. 136. It is extremely anomalous, says Mr. Sule,
that parties aggrieved by an award made by such an
arbitrator should be denied the protection of the relevant
provisions of the Arbitration Act as well as the protection
of the appellate jurisdiction of this Court under Art. 136. There is some
force in this connection., It appears that in
enacting section 10A the Legislature probably did not
realise that the position of an arbitrator contemplated
therein would become anomalous in view of the fact that he
was not assimilated to the status of an Industrial Tribunal
and was taken out of the provisions of the Indian
Arbitration Act. That, however, is a matter for the
Legislature to consider.
In the result, the preliminary objection raised by the
respondents in the appeals before us must be upheld and the
appeals dismissed on the ground that they are incompetent
under Article 136. The appellants to pay the costs of the
respondents in C A. No. 204 of 1962. No order as to costs
in C. A. Nos. 182 & 183 of 1962.
Appeal dismissed,
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