The Engineering Mazdoor Sabha Vs. The
Hind Cycles Ltd., Bombay  INSC 289 (18 October 1962)
SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N.
GUPTA, K.C. DAS SHAH, J.C.
CITATION: 1963 AIR 874 1963 SCR Supl. (1) 625
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)
Industrial Dispute-Reference to arbitration
by agreement of parties-Arbitration award-Appeal by special leave-Competence-Industrial
Disputes Act, 1947(14 of 1947). ss. 10,10A,18-Constitution of India, Art. 136.
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 Industrial
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 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,  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,  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.
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
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 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.
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.
For invoking Art. 136(1), two condition must
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-judicial act and the authority whose act is complained against must be
a Court or a Tribunal. Unless both the conditions 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 quasijudicial 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)  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 quasijudicial 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 said Article. The Tribunals which
are contemplated by Art.
136(1) are clothed with some of the powers of
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
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)  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,
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
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 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)  S. C. R. 459, 633 it is nevertheless a Tribunal for the purposes of
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)  1 S.C.R. 267.
(2)  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
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 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)  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
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 andfix 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 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 becomes 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 theother
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 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 Committee, 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
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)  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 Electricity 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 proceedings 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 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)  1 K.B.D. 171, (2)  1 All.
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 wellfounded. 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
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 641 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 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 642 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
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)
643 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 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 arbitration 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 644 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 subs. (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 645 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 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
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 themselves.
Section 10A (5) may also be considered in
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
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 (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.