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TMI Blog1989 (8) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... gally terminated more than 200 workers. The respondent-1 denied that claim and asserted that the persons whose services were alleged to have been terminated were not its employees at the material time. This dispute however, remained unsettled and the workers went on strike which took a violent turn. The management had to lay off certain workers and that added fuel to the fire. The agitation of the workers before the factory premises created law and order problem attracting the police to intervene. The Labour Commissioner and other top officials of the District arrived and they initiated conciliation proceedings. The then Labour Minister and the Public Health Minister of the State Government were also alerted. They also came and extended their good offices to bring about a settlement. They succeeded in their efforts. On March 31, 1988, the parties entered into an agreement containing the terms of settlement of their dispute. On behalf of the management, the agreement was signed by respondents 1, 7 and 8. On behalf of the workers, it was signed by the President and Secretary of the workers' union. It was mutually agreed that a committee consisting of five persons, two from the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eement as required under Sub-section (3) of Section 10-A, renders the arbitral award invalid and unenforceable? 7. Before outlining the statutory provisions having a bearing on the question, we may call attention to the relevant terms of the arbitration agreement. x x x 3. Out of alleged more than 200 terminated workers the workers doing the work of cutting and king are taken back with immediate effect and about the reinstatement of the remaining workers a committee is constituted. In the Committee two members namely S/Shri Ishwar and Ram Badan will represent the workers and S/Shri Sunil Bansal and Mohan Lal Wadhwa will be the representatives of the Management. The Deputy Commissioner, Karnal would be the President of the Committee. This Committee will decide this matter that out of those alleged more than 200 workers whose services have been terminated how many and who are workers of Liberty Group. The workers found to be of the Liberty Group would resume work with immediate effect. The Committee will take decision in this behalf upto 26th April, 1988. In order to ascertain as to which of the workers worked in which factory of the Liberty Group, the President shall have t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment the arbitration award signed by the arbitrator or all the arbitrators, as the case may be. (4-A) Where an industrial dispute has been referred to arbitration and a notification has been issued under Sub-section 3(a), the appropriate Government may, by order, prohibit the continuance of any strike or lock out in connection with such dispute which may be in existence on the date of the reference. 9. It may be noted that Section 10-A excluding Sub-sections 1-A, 3-A and 4-A have been added to the parent Act by Act No. 36 of 1956. After about eight years, Sub-sections 1-A, 3-A and 4-A came to be added by the amending Act No. 36 of 1964. 10. Consequent upon the additions of these provisions, several corresponding changes were also 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 10-A . As a result of this amendment of the definition an arbitration award has now become an award for all purposes of the Act attracting the application of Sections 17, 17-A, 18(2), 19(3), 21, 29, 30, 33-C and 36-A of the Act. 11. It may be noted that Sections 23 and 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (Central), New Delhi and the Regional Labour Commissioner (Central) concerned. The agreement shall be accompanied by the consent, in writing, of the arbitrator or arbitrators. 14. In the light of these statutory provisions, it is now necessary to consider whether publication of the arbitration agreement is obligatory and if so, when it should be published? To put the question more precisely : whether it is necessary to publish the agreement within the time prescribed under Sub-section (3) of Section 10-A? And what would be the consequences of delayed publication? 15. Arguments before us ranged a good deal wider than they appear to have done in the High Court. The counsel for the appellant claimed that the publication in the Gazette is only for general information and not a condition precedent for making the award. When parties have voluntarily agreed and referred their problem to arbitration and also participated in the award proceedings, mere non-publication of the agreement cannot render the award invalid. Such a view, counsel asserted, would defeat the very purpose of industrial adjudication by consent of parties. He also urged that penal consequence for non-publication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect to a dispute with the Union on January 22, 1968. It was referred to the Presiding Officer of the Labour Court, Jabalpur for arbitration. An award was made on March 8, 1968 but it was not pronounced until April. 15, 1968, for want of publication of the agreement under Sub-section (3) of Section 10-A. The agreement was published in the Gazette on March 29, 1968. The Court however, quashed the award with a direction to the Presiding Officer Labour Court to readjudicate the dispute referred under Section 10-A of the Act. 18. A similar view was expressed by the Punjab Haryana High Court in Landara Engineering and Foundary Works, Phillaur v. The Punjab State and Ors. [1969] Lab. I.C. 52. 19. The Delhi High Court in Mineral Industry Association v. The Union of India and Anr. AIR1971Delhi160 has also accepted the same principle but by simply following the decision of the M.P. High Court in Modern Stores case. 20. The Orissa High Court in Rasbehary Mohanty and Presiding Officer Labour Court and Anr. (1974)IILLJ222Ori has held that if the arbitration agreement is not published as required under Sub-section (3), it would be an infraction of the statutory provisions in the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, those prescribed formalities which are essential to the validity of the thing when done are called imperative or absolute; but those which are not essential, and may be disregarded without invalidating the thing to be done, are called directory. Craies on Statute Law 5th Ed. p. 63]. 27. It is now well established that the wording of any provision are not determinative as to whether it is absolute or directory. Even the absence of penal provision for non-compliance does not lead to an inference that it is only directory. The Court, therefore, must carefully get into the underlying idea and ascertain the purpose to be achieved notwithstanding the text of the provision. 28. Now look at the provisions of Sub-section (3). It is with respect to time for publication of the agreement. But publication appears to be not necessary for validity of the agreement. The agreement becomes binding and enforceable as soon as it is entered into by the parties. Publication is also not an indispensable foundation of jurisdiction of the arbitrator. The jurisdiction of the arbitrator stems from the agreement and not by its publication in the Official Gazette. Why then publication is necessary? I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de of the management. Against the judgment of the learned single judge giving certain directions, the management has preferred Letters Patent Appeal No. 511 of 1988 before a Division Bench of the High Court and obtained stay of the directions. Not merely that, the management has also challenged the reference made by the State Government under Section 10(1) of the Act. It has moved the High Court under Article 226 of the Constitution with CWP No. 9455 of 1988 and obtained stay of further proceedings before the Tribunal. 30. It must be recognised that in the modern welfare state, healthy industrial relations are a matter of paramount importance. In attempting to solve industrial disputes, industrial adjudication, therefore, should not be delayed. Voluntary arbitration appears to be the best method for settlement of industrial disputes. The disputes can be resolved speedily and in less than a year, typically in a few months. The Tribunal adjudication of reference under Section 10(1) often drags on for several years, thus defeating the very purpose of the industrial adjudication. Arbitration is also cheaper than litigation with less legal work and no motion practice. It has limited ..... X X X X Extracts X X X X X X X X Extracts X X X X
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