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TMI Blog1962 (10) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For invoking Art. 136(1), two condition must be satisfied. The proposed appeal must be from any 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, ([1950] S. C. R. 621) Mahajan, J., observed that the question whether an act is a judicial or a quasijudicial one or a purely executive act depends on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 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 rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. ([1950] S. C. R. 459) 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, 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala ( [1962] 2 S.C.R. 339). 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, (3) A copy of the arbitration agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd. 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 marke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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([1953] 1 All. E. R. 327). 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompensation Appeal Tribunal Ex-parte Shaw, ( [1951] 1 All. E.R. 268) de also Halsbury s Laws of England 3rd Edn., Vol.. 2, p.,62, and Vol. II, p. 122. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly 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 Tribunal under Art. 136. In the Bharat Bank Ltd.([1950] S.C.R. 459) 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 unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 themselves. Section 10A (5) may also be considered in this connection. If the reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ences. 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 respo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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