The Engineering Mazdoor Sabha Representing Workmen Employed vs THE HIND CYCLES LTD., BOMBAY(And Connected Appeal)

Supreme Court18 October 1962P.B. Gajendragadkar · Bhuvneshwar P. Sinha · K.N. Wanchoo · K.C. Das Gupta · J.C. Shah

Neutral1962 INSC 292
AIRAIR 1963 SC 874
SCR[1963] 1 SCR 625

Ratio decidendi

The rule this decision rests on

The decision of an arbitrator to whom industrial disputes are voluntarily referred under s. 10A of the Industrial Disputes Act, 1947, produces a quasi-judicial determination, but the arbitrator is not a tribunal within the meaning of Article 136(1) of the Constitution of India because the State has not invested the arbitrator with its inherent judicial power; instead, the power of adjudication is derived by the arbitrator solely from the agreement of the parties. For an adjudicating body or authority to qualify as a tribunal under Article 136(1), two essential conditions must be satisfied: (1) the determination or order in question must be quasi-judicial or judicial in character, not purely administrative or executive; and (2) the authority must be constituted by the State and invested with the State's inherent judicial power, rather than deriving its authority from private agreement. The construction of s. 10A of the Industrial Disputes Act, 1947, is such that the reference to arbitration is effected by the parties themselves through a written agreement specifying the arbitrator, not by the appropriate Government; consequently, the initial and inherent power to adjudicate upon the dispute is derived by the arbitrator from the parties' agreement and not from the statutory provisions themselves, which distinguishes the position of an arbitrator under s. 10A from that of an Industrial Tribunal appointed under s. 10. Article 226 of the Constitution is wider in its application than Article 136 because the power conferred on High Courts to issue writs is not conditioned by the requirement that writs may be issued only against the orders of courts or tribunals; therefore, a writ of certiorari may lie against an award of an arbitrator under s. 10A even though the arbitrator is not a tribunal within Article 136.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

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. DASSHAH, J.C.

CITATION:1963 AIR 874 1963 SCR Supl. (1) 625CITATOR 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 ofparties-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 workmenwas voluntarily referred to arbitration by their agreementdated December 3, 1959, under s. 10A of the IndustrialDisputes Act, 1947. Section 10A(2) prescribed the form ofagreement which required that the parties should state thatthey had agreed to refer the subsisting industrial disputeto the arbitration of the persons to be named in the form.Section 18(2) provided that the arbitration award shall bebinding on the parties to the agreement. The arbitratornamed by the parties entered. upon the reference on December14, 1959, and pronounced his award on April 8, 1960. Theappellants seeking to challenge the validity of the awardapplied for and obtained special leave to appeal to theSupreme Court against the decision of the arbitrator. Therespondent pleaded that the appeal was not competent becausethe arbitrator was not a tribunal under Art. 136 of theConstitution of India.Held, that the decision of an arbitrator to whom industrialdisputes are voluntarily referred under s. 10A of the Indus-trial Disputes Act, 1947, is quasi-judicial in character andamounts to a determination or order under Art. 136(1) of theConstitution of India, but the arbitrator is not a tribunalwithin the meaning of that Article because the State has notinvested him with its inherent judicial power and the powerof adjudication which he exercises is derived by him fromthe agreement of the parties. Consequently, an appealagainst the decision of an arbitrator under s. 10A of theAct does not lie under Art. 136 of the Constitution.626Bharat Bank Ltd., Delhi v. Employees of the Bharat BankLtd., Delhi, [1950] S.C.R. 459, Province of Bombay v.Kusaldas S. Advani & Others, [ 1 950] S. C. R. 621 and DurgaShankar Mehta v. Thakur Raghuraj Singh, [1955] 1 S. C. R.267, relied on.Semble, Art. 226 of the Constitution of India under which awrit of certiorari can be issued in an appropriate case iswider than Art. 136 because the power conferred on the HighCourt to issue, certain writs is not conditioned or limitedby the requirement that the said writs can be issued onlyagainst the orders of courts or tribunals.

JUDGMENT:

CIVIL APPELLANTS JURISDICTION : Civil Appeals Nos. 182 and183 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. Boseand Sardar Bahadur, for the respondent (in C. A. Nos. 182and 183 of 1962).

G. B. Pai, J.B. Dadachanji, O. C. Mathur and RavinderNarain, 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 deliveredbyGAJENDRAGADIKAR, J.-These three appeals have been placed forhearing together because the respective respondents in thesaid appeals have raised the same preliminary objectionagainst their competence. Civil Appeals Nos. 182 and183/1962 have627been filed against the award pronounced by Mr. D.V. Vyas onApril 8, 1960, in a dispute between the appellants, theEngineering Mazdoor Sabha & another, and the respondent TheHind Cycles Limited, Bombay. This dispute was voluntarilyreferred to Mr. Vyas under s. 10A of the Industrial DisputesAct, 1947 (No. 14 of 1947) (hereinafter called the Act), bythe parties by their agreement of December 3, 1959. TheArbitrator entered upon the reference on December 14, 1959,and pronounced his award on April 8, 1960. By theirappeals, the appellants have challenged the validity and thepropriety of the said award on several grounds and theappeals have been brought to this Court by special leave.The respondent contends that the arbitrator whose award ischallenged was not a Tribunal under Art. 136 of theConstitution and so, an appeal by special leave is notcompetent.

Civil Appeal No. 204/1962 has been filed by the appellant,the Anglo-American Direct Tea Trading Co. Ltd., against therespondents, its workmen, and by its appeal, the appellantseeks to challenge the validity and the correctness of theaward pronounced by Dr. T. V. Sivanandam to whom the disputebetween the parties was voluntarily referred under s. 10A ofthe Act. The award was pronounced on August 27, 1961, andby special leave the appellant has come to this Court. Therespondents urge that the appeal is incompetent because thearbitrator is not a Tribunal under Art. 136 of theConstitution. That is how the question which arises for ourdecision on these preliminary objections is whether anarbitrator to whom parties have voluntarily referred theirdisputes for arbitration is a Tribunal under Art. 136.Article 136(1) provides that notwithstanding anything inthis Chapter, the Supreme Court may., in its discretion,grant special leave to appeal from ,any judgment, decree,determination, sentence or628order in any cause or matter passed or made by any court ortribunal 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 courtor tribunal constituted by or under any law relating to theArmed Forces. It is clear that Art. 136(1) confers verywide powers on this Court and as such, its provisions haveto be liberally construed. The constitution-makers thoughtit necessary to clothe this Court with very wide powers todeal with all orders and adjudications made by Courts andTribunals in the territory of India in order to ensure fairadministration of justice in this country. It issignificant that whereas Arts. 133(1) and 134 (1) providefor appeals to this Court against judgments, decrees orfinal orders passed by the High Courts, no such limitationis prescribed by Art. 136(1). All Courts and all Tribunalsin the territory of India except those in cl. (2) aresubject to the appellate jurisdiction of this Court underArt. 136(1) It is also clear that whereas the appellatejurisdiction of this Court under Arts. 133(1) and 134(1) canbe invoked only against final orders, no such limitation isimposed by Art. 136(1). In other words, the appellatejurisdiction of this Court under this latter provision canbe exercised even against an interlocutory order ordecision. Causes or matters covered by Art. 136(1) are allcauses and matters that are brought for adjudication beforeCourts or Tribunals. The sweep of this provision is thusvery wide. It is true that in exercising its powers underthis Article, this Court in its discretion refuses toentertain applications for special leave where it appears tothe Court that interference with the orders sought to beappealed against may not be necessary in the interest ofjustice. But the limitations thus introduced, in practice,are the limitations imposed by the Court itself in itsdiscretion. They are not prescribed by Art. 136(1).For invoking Art. 136(1), two condition must be satisfied.The proposed appeal must be from any629judgment, decree, determination, sentence or order, that isto say, it must not be against a purely executive oradministrative order. If the determination or order givingrise to the appeal is a judicial or quasi-judicialdetermination or order, the first condition is satisfied.The second condition imposed by the Article is that the saiddetermination or order must have been made or passed by anyCourt or Tribunal in the territory of India. Theseconditions, therefore, require that the act complainedagainst must have the character of a judicial or quasi-judi-cial act and the authority whose act is complained againstmust be a Court or a Tribunal. Unless both the conditionsare satisfied, Art. 136 (1) cannot be invoked.The distinction between purely administrative or executiveacts and judicial or quasi-judicial acts has been consideredby this Court on several occasions. In the case of Provinceof Bombay v. Kusaldas s. Advani, (1) Mahajan, J., observedthat the question whether an act is a judicial or a quasi-judicial one or a purely executive act depends on the termsof the particular rule and the nature, scope and effect ofthe particular power in exercise of which the act may bedone and would, therefore, depend on the facts andcircumstances of each case. Courts of law established bythe State decide cases brought before them judicially andthe decisions thus recorded by them fall obviously under thecategory of judicial decisions. Administrative or executivebodies, on the other hand, are often called upon to reachdecisions in several matters in a purely administrative orexecutive mariner and these decisions fall clearly under thecategory of administrative or executive orders. Even judgeshave, in certain matters, to act administratively, whileadministrative or executive authorities may have to actquasi-judicially in dealing with some matters entrusted totheir jurisdiction. Where an authority is required to actjudicially either(1) [1950] S. C. R. 621.

630by an express provision of the statute under which it actsor by necessary implication of the said statute, thedecisions of such an authority generally amount to quasi-judicial decisions. Where, however, the executive oradministrative bodies are not required to act judicially andare competent to deal with issues referred to themadministratively, their conclusions cannot be treated asquasi-judicial conclusions. No doubt, even while actingadministratively, the authorities must act bonafide; butthat is different from saying that they must act judicially.Bearing in mind this broad distinction between acts ororders which are judicial or quasi-judicial on the one handand administrative or executive acts on the other, there isno difficulty in holding that the decisions of thearbitrators to whom industrial disputes are voluntarilyreferred under s. 10A of the Act are quasi judicialdecisions and they amount to a determination or order underArt. 136 (1). This position is not seriously disputedbefore us. What is in dispute between the parties is notthe character of the decisions against which the appealshave been filed, but it is the character of the authoritywhich decided the disputes. The respondents contend thatthe arbitrators whose awards are challenged, are notTribunals, whereas the appellants contend that they are.Article 136(1) refers to a Tribunal in contradistinction toa Court. The expression "a Court" in the technical sense isa Tribunal constituted by the State as a part of ordinaryhierarchy of courts which are invested with the State'sinherent judicial powers. The Tribunal as distinguishedfrom the Court, exercises judicial powers and decidesmatters 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 seatof justice; and in the discharge of its functions, it sharessome of the characteristics of the court. A domesticTribunal appointed in departmental proceedings, for631instance, or instituted by an industrial employer cannotclaim to be a Tribunal under Art. 136(1). Purelyadministrative Tribunals are also outside the scope of thesaid 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 administeroath, they are required to follow certain rules ofprocedure; the proceedings before them are required tocomply with rules of natural justice, they may not be boundby the strict and technical rules of evidence, but,nevertheless, they must decide on evidence adduced beforethem; they may not be bound by other technical rules of law,but their decisions must, nevertheless, be consistent withthe general principles of law. In other words, they have toact judicially and reach their decisions in an objectivemanner and they cannot proceed purely administratively orbase their conclusions on subjective tests or inclinations.The procedural rules which regulate the proceedings beforethe Tribunals and the powers conferred on them in dealingwith matters brought before them, are sometimes described asthe "trappings of a court' and in determining the questionas to whether a particular body or authority is a Tribunalor not, sometimes a rough and ready test is applied byenquiring whether the said body or authority is clothed withthe trappings of a court.

In Shell Company of Australia, Ltd. v. Federal COMMissionerof Taxation (1), the Privy Council had to consider whetherthe Board of Review created by s. 41 of the (Federal) IncomeTax Assessment Act, 1922-25, to review the decisions of theCommissioner of Taxation, was a court exercising thejudicial power of the Commonwealth within. the meaning of s.71 of the Constitution of Australia; and it was held that itwas not a court but was an administrative tribunal. LordSankey, L. C., examined the relevant provisions of thestatute which created the said Board and came to theconclusion that the Board appeared to be in(1) [1931] A. C. 275.

the nature of administrative machinery to which the taxpayercan resort at his option in order to have his contentionsreconsidered. He then added that an administrative tribunalmay Act judicially, but still remain an administrativetribunal as distinguished from a Court, strictly so-called.Mere externals do not make a direction to an administrativeofficer by an ad hoc tribunal an exercise by a court ofjudicial power (pp. 297-298). It is in this connection thatLord Sankey observed that the authorities are clear to showthat there are tribunals with many of the trappings of aCourt which, nevertheless, are not Courts in the strictsense of exercising judicial power. In that connection, HisLordship enumerated some negative propositions. He observedthat a Tribunal does not become a Court because it gives afinal decision, or because it hears witnesses on oath, orbecause two or more contending parties appear before itbetween whom it has to decide,. or because it givesdecisions which affect the rights of subjects, or becausethere is an appeal to a Court, or because it is a body towhich a matter is referred by another body (pp. 296-297).These negative propositions indicate that the features towhich they refer may constitute the trappings of a Court;but the presence of the said trappings does not necessarilymake the Tribunal a Court. It is in this context that thepicturesque phrase 'the trappings of a Court' came to beused by the Privy Council.

This question was considered by this Court in The BharatBank Ltd., Delhi v. Employees of the Bharat Bank Ltd.,Delhi. (1) This decision is apposite for our purpose becausethe question which came to be determined was in regard tothe character of the Industrial Tribunals constituted underthe Act. The majority decision of this Court was that thefunctions and duties of the Industrial Tribunal are verymuch like those of a body discharging judicial functions andso, though the Tribunal is not a Court,(1) [1950] S. C. R. 459,633it is nevertheless a Tribunal for the purposes of Art. 136.In other words, the majority decision which, in a sense, wasepoch making, held that the appellate jurisdiction of thisCourt under Art. 136 can be invoked in proper cases againstawards and other orders made by Industrial Tribunals underthe Act. In discussing the question as to character of theIndustrial Tribunal functioning under the Act, Mahajan, J.,observed that the condition precedent for bringing atribunal within the ambit of Art. 136, is that it should beconstituted by the State; and he added that a Tribunal wouldbe outside the ambit of Art. 136 if it is not invested withany part of the judicial functions of the State butdischarges purely administrative or executive duties. Inthe opinion of the learned judge, Tribunals which are foundinvested with certain functions of a Court of justice andhave some of its trappings also would fall within the ambitof Art. 136 and would be Subject to the appellate control ofthis Court whenever it is found necessary to exercise thatcontrol in the interests of justice. It would thus benoticed that apart from the importance of the trappings of aCourt, the basic and essential condition which makes anauthority or a body a tribunal under Art. 136, is that itshould be constituted by the State and should be investedwith the State's inherent judicial power. Since this testwas satisfied by the Industrial Tribunals under the Act,according to the majority decision, it was held that theawards made by the Industrial Tribunals are subject to theappellate jurisdiction of this Court under Art. 136.In Durga Shankar Mehta v. Thakur Raghuraj Singh (1),Mukherjea, J., who delivered the unanimous opinion of theCourt observed that it was well settled by the majoritydecision of this Court in the case of Bharat Bank Ltd. (2)that the expression "Tribunal" as used in Art. 136 does notmean the same thing as "Court" but includes, within itsambit, all adjudicating bodies,(1) [1955] 1 S.C.R. 267.

(2) [1950] S.C.R. 459.

634provided they are constituted by the State and are investedwith judicial as distinguished from purely administrative orexecutive functions. Thus, there can be no doubt that thetest which has to be applied in determining the character ofan adjudicating body is whether the said body has beeninvested by the State with its inherent judicial power'.This test implies that the ad indicating body should beconstituted by the State and should be invested with theState's judicial power which it is authorised to exercise.The same principle has been reiterated in Harinagar SugarMills Ltd. v. Shyam Sunder Jhunjhunwala (1).It is now necessary to examine the scheme of the relevantprovisions of the Act bearing on the voluntary reference tothe arbitrator, the powers of the said arbitrator and theprocedure which he is required to follow. Section 16A underwhich voluntary reference has been made in both the caseswas added to the Act by Act 36 of 1956. It reads as under

"10A. (1) Where any industrial dispute existsor is apprehended and the employer and theworkmen agree to refer the dispute toarbitration, they may, at any time before thedispute has been referred under section 10 toa Labour Court or Tribunal or NationalTribunal, by a written agreement, refer thedispute to arbitration and the reference shallbe to such person or persons (including thepresiding officer of a Labour Court orTribunal or National Tribunal) as anarbitrator or Arbitrators as may be specifiedin the arbitration agreement.(2) An arbitration agreement referred to insub-section (1) shall be in such form andshall be signed by the parties thereto in suchmanner as may be prescribed,(1) [1962] 2 S.C.R. 339635(3) A copy of the arbitration agreementshall be forwarded to the appropriateGovernment and the conciliation officer andthe appropriate Government shall, withinfourteen days from the date of the receipt ofsuch copy, publish the same in the officialGazette.

(4) The arbitrator or arbitrators shallinvestigate the dispute and submit to theappropriate Government the arbitration awardsigned by the arbitrator or all thearbitrators, as the case may be.(5) Nothing in the arbitration Act, 1940shall apply to arbitrations under thissection."

Consequent upon the addition of this section, severalchanges were made in the other provisions of the Act.Section 2 (b) which defines an award was amended by theaddition of the words "it includes an arbitration award madeunder section 10A". In other words, as a result of theamendment of the definition of the word "award", anarbitration award has now become an award for the purposesof the Act. The inclusion of the arbitration award withinthe meaning of s. 2 (b) has led to the application ofsections 17, 17A, 18(2), 19 (3), 21, 29, 30, 33C and 36A tothe arbitration award. Under s. 17 (2), an arbitrationaward when published under s. 17 (1), shall be final andshall not be called in question by any Court in any mannerwhatsoever. Section 17A provides that the arbitrationagreement shall become enforceable on the expiry of thirtydays from the date of its publication 1 under s. 17, andunder s. 18(2), it is binding on the parties to theagreement who referred the dispute to arbitration; under s.19(3), it shall. subject to the provisions of s, 19, remainin operation for a period of one year provided that theappropriate Government may reduce the said period and- fixsuch636other period as it thinks fit; provided further that thesaid period may also be extended as prescribed under thesaid proviso. The other sub-sections of s. 19 would alsoapply to the arbitration award. Section 21 which requirescertain matters to be kept confidential is applicable and sosection 30 which provides for a penalty for thecontravention of s. 21, also applies. Section 29 whichprovides for penalty for breach of an award can 'be invokedin respect of an arbitration award. Section 33C whichprovides for a speedy remedy for the recovery of money froman employer is applicable; and s. 36A can also be invokedfor the interpretation of any provision of the arbitrationaward. In other words, since an arbitration award has beenincluded in the definition of the word 'Award' theseconsequential changes have made the respective provisions ofthe Act applicable to an arbitration award.On the other hand, there are certain provisions which do notapply to an arbitration award. Sections 23 & 24 whichprohibit strikes and lock-outs, are inapplicable to theproceedings before the arbitrator to whom a reference ismade under s. 10A, and that shows that the Act has treatedthe arbitration award and the prior proceedings in relationto it as standing on a different basis from an award and theprior proceedings before the Industrial Tribunals or LabourCourts. Section 20, which deals with the commencement andconclusion of proceedings,, provides, inter alia, by sub-s.(3) that proceedings before an arbitrator under s. 10A shallbe deemed to have commenced on the date of the reference ofthe dispute for arbitration and such proceedings shall bedeemed to have concluded on the date on which the award be-comes enforceable under s. 17A. It would be noticed thatjust as in the case of proceedings before the IndustrialTribunal commencement of the Proceedings is marked by thereference under s. 10, so the commencement of theproceedings before the arbitrator637is marked by the reference made by the parties themselves,and that means the commencement of the proceedings takesplace even before the appropriate Government has entered onthe scene and has taken any action in pursuance of theprovisions of s. 10A.

Rules have been framed by the Central Government and some ofthe State Governments under s. 38(2) (aa). and Theserules make provisions for the form of arbitration agreement,the place and time of hearing, the power of thearbitrator to take evidence, the manner in which the summonsshould be served, the powers of the arbitrator to proceed exparte, if necessary, and the power to correct mistakes inthe award and such other matters. Some of these Rules (asfor 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 bysome of the States (for instance the rules, framed by theMadras State 31; 37, 38, 39, 40, 41 & 42) seem to treat thearbitrator on the same basis as the other appropriateauthorities under the Act. That, shortly stated, is theposition of the relevant provisions of the statute and theRules framed thereunder. It is in the light of theseprovisions that we must now consider the character of thearbitrator who enters upon arbitration proceedings as-, aresult of the reference made to him under s. 10A.The learned Solicitor-General contents that such anarbitrator is no more and no better than a privatearbitrator, to whom a reference can be made by the partiesunder an arbitration agreement as defined by theArbitration Act, 1940 (No. X of 1940). He argues that suchan arbitrator has to act judicially, has to follow a, fairprocedure, take evidence, hear the parties and come to hisconclusion in the light of the evidence adduced before him;and that is all that the arbitrator to whom reference ismade under s. 10A does. i 'It may be that the arbitrationaward is treated as an award for certain purposes638under the Act; but the position, in law, still remains thatit is an award made by an arbitrator appointed by theparties. Just as an award made by a private arbitratorbecomes a decree subject to the provisions of ss. 15, 16, 17and 30 of the Arbitration Act, and thus binds the parties,so does an award of the arbitrator under s. 10A becomebinding on the parties by virtue of the relevant provisionsof the Act. Against an award made by a private arbitrator,no writ can issue under Art. 226; much less can an appeallie under Art. 136. The position with regard to the awardmade by an arbitrator under s. 10A is no different. Insupport of this argument, he has relied on the decision inR. V. Disputes Committee of the National Joint Council forthe Craft Dental Technicians(1). On a motion for an orderof certiorari to quash an order made by the Disputes Com-mittee, Lord Goddard, C. J., held that the Court has nopower to direct the issue of orders of certiorari or ofProhibition addressed to an arbitrator directing that adecision by him should be quashed or that he be prohibitedfrom proceeding in an arbitration, unless he is acting underpowers conferred by statute. "There is no instance of whichI know in the books", observed Lord Goddard, "'wherecertiorari or prohibition has gone to any arbitrator, excepta statutory arbitrator, and a statutory arbitrator is aperson to whom, by statute, the parties must resort." TheSolicitor-General suggests that though some powers have beenconferred on the arbitrator appointed under s. 10A, hecannot be treated as a statutory arbitrator, because theparties are not compelled to go to any person named as suchby the statute. The arbitrator is an arbitrator of theparties' choice and so, he cannot be treated as a statutoryarbitrator.

On the other hand, Mr. Pai has urged that it would beunreasonable to treat the present arbitrator as a privatearbitrator, because s. 10A gives statutory recognition tothe appointment of the arbitrator and(1) [1953] 1 All. E. R. 327.

639the consequential changes made in the Act and the statutoryrules framed thereunder clearly show that he has beenclothed with quasi-judicial powers and his proceedings areregulated by rules of procedure. Therefore, it would beappropriate to treat him as a statutory arbitrator and assuch, a writ of certiorari would lie against his decisionunder Art. 226. In support of this argument, Mr.Pai hasreferred us to the decision of the court of Appeal in TheKing v. Electricity Commissioners Ex-parte London Electri-city Joint Committee Co. (1920) Ltd.(1) In that, case, thescheme framed by the Electricity Commissioners establishedby s. 1 of the Electricity (Supply) Act, 1919, waschallenged and it was held that the impugned scheme wasultra vires, and so, a writ of prohibition was issuedprohibiting the Commissioners from proceeding with thefurther consideration of the scheme. Dealing with thequestion as to whether a writ can issue against a body likethe Electricity Commissioners constituted under the Act,Lord Atkin referred to the genesis and the history of thewrits of prohibition and certiorari and held 'that theoperation of the writs has extended to control the proceed-ings of bodies which do not claim to be, and would not berecognised as, Courts of justice. Wherever any body ofpersons having legal authority to determine questionsaffecting the rights of subjects, and having the duty to actjudicially, act in excess of their legal authority they aresubject to the controlling jurisdiction of the King's BenchDivision exercised in these writs (p. 205). Then Lord Atkinreferred to a large number of previous decisions in whichwrits had been issued against different authoritiesstatutorily entrusted with the discharge of differentduties. To the same effect is the decision in the case ofR. V. Northumberland Compensation 'Appeal Tribunal Ex-parteShaw, (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 Pronouncedby an arbitrator appointed under s. 10A, a writ ofcertiorari would lie under Art. 226, and so, the arbitratorshould be deemed to be a Tribunal even for the purposes ofArt. 136. In our opinion, this argument is not well-founded. Art. 226 under which a writ of certiorari can beissued in an appropriate case, is, in a sense, wider thanArt . 1336, because the power conferred on the High Courtsto issue certain writs is not conditioned or limited by therequirement that the said writs can be issued only againstthe orders of Courts or Tribunals. Under Art. 226(1), anappropriate writ can be issued to any person or authority,.including in appropriate cases any Government, within theterritories prescribed. Therefore even if the arbitratorappointed under section 10A is not a Tribunal under Art. 136in a proper case, a writ may lie against his award underArt. 226. That is why the argument that a writ may lieagainst an award made by such an arbitrator does notmaterially assist the appellants' case that the arbitratorin question is a tribunal under Art. 136.

It may be conceded that having regard to several provisionscontained in the Act and the rules framed thereunder, anarbitrator appointed under s. 10A cannot be treated to beexactly similar to a private arbitrator to whom a disputehas been referred under an arbitration agreement under theArbitration Act, The arbitrator under s. 10A is clothed withcertain powers, his procedure is regulated by certain rulesand the award pronounced by him is given by statutoryprovisions a certain validity and a binding character for aspecified period. Having regard to these provisions, it mayperhaps be, possible to describe such an arbitrator, as in aloose sense, a statutory arbitrator and to that extent, theargument of the learned Solicitor-General may be rejected.But fact that the arbitrator under s. 10A is not exactly641in the same position as a private arbitrator does not meanthat he is a tribunal under Art. 136. Even if some of thetrappings of a Court are present in his case, he lacks thebasic, the essential and the fundamental requisite in thatbehalf because he is not invested with the State's inherentjudicial power. As we will presently point out, he isappointed by the parties and the power to decide the disputebetween the parties who appoint him is derived by him fromthe agreement of the, parties and from no other source. Thefact that his appointment once made by-the parties isrecognised by s. 10A and after his appointment he is clothedwith certain powers and has thus, no doubt, some of thetrappings of a court, does not mean that the power ofadjudication which he is exercising is derived from theState and so, the main test which this Court has evolved indetermining the question about the character of anadjudicating body is not satisfied. He is not a Tribunalbecause the State has not invested him' with its inherentjudicial power and the power of adjudication which heexercises is derived by him from the agreement of theparties. His position, thus, may be said to be higher thanthat of a private arbitrator and lower than that of atribunal. A statutory Tribunal is appointed under therelevant provisions of a statute which. also compulsorilyrefers to its adjudication certain classified classes ofdisputes. That is the essential feature of what is properlycalled statutory adjudication or arbitration. That is whywe think the argument strenuously urged before us by Mr. Paithat a writ of certiorari can lie against his award is of noassistance to the appellants when they contend that such anarbitrator is a Tribunal under Art. 136.

Realising this difficulty, Mr. Sule concentrated on theconstruction of s. 10A itself and urged that on a fair andreasonable construction of s. 10A, it should be held thatthe arbitrator cannot be distinguished from an IndustrialTribunal and is therefore, a642Tribunal under Art. 136. In the Bharat Bank Ltd.(1) case ithas been held that an Industrial Tribunal is a tribunalunder Art. 136 and the arbitrator is no more and no lessthan an Industrial Tribunal; and so, the present appeals arecompetent, says Mr. Sule.

That takes us to the construction of s. 10A. Section 10Aenables the employer and the workmen to refer their disputeto arbitration by a written agreement before such a disputehas been referred to the Labour Court or Tribunal orNational Tribunal under s. 10. If an industrial disputeexists or is apprehended, the appropriate Government mayrefer it for adjudication under s. 10; but before such areference is made, it is open to the parties to agree torefer their dispute to the arbitration of a person of theirchoice and if they decide to adopt that course, they have toreduce their agreement to writing. When the parties reducetheir agreement to writing, the reference shall be to suchperson as may be specified in the arbitration agreement.The section is not very happily worded; but the essentialfeatures of its, scheme are not in doubt. If a referencehas not been made under s. 10, the parties can agree torefer their dispute to the arbitrator of their choice, theagreement is followed by writing, the writing specifies thearbitrator or arbitrators to whom the reference is to bemade and the reference shall be made accordingly to sucharbitrator or arbitrators. Mr. Sule contend sand it is nodoubt an ingenious argument-that the last clause of s. 10Ameans that after the written agreement is entered into bythe parties, the reference shall be made to the person namedby the agreement but it shall be made by the appropriateGovernment. In other words, the argument is that if theparties enter into a written agreement as to the person whoshould adjudicate.Upon their disputes, it is the Governmentthat steps in and makes the reference to such named person.The arbitrator or arbitrators are(1)[1950] S.C.R. 459.

643initially named by the parties by consent; but it is when areference is made to him or them by the appropriateGovernment that the arbitrator or arbitrators is or areclothed with the authority to adjudicate, and so, it isurged that the act of reference which is the act of theappropriate Government makes the arbitrator an IndustrialTribunal and he is thereby invested with the State'sinherent judicial power.

We do not think that the section is capable of thisconstruction. The last clause which says that the referenceshall be to such person or persons, grammatically must meanthat after the written agreement is entered into specifyingthe person or persons, the reference shall be to such personor persons. We do not think that on the words as theystand, it is possible to introduce the Government at anystage of the operation of s. 10A (1). The said provisiondeals with what the parties can do and provides that if theparties agree and reduce their agreement to writing, areference shall be to the person or persons named by suchwriting. The fact that the parties can agree to refer theirdispute to the Labour Court, Tribunal or National Tribunalmakes no difference to the construction of the provision.Sub-section (2) prescribes the form of agreement and thisform also supports the same construction. This formrequires that the parties should state that they have agreedto refer the subsisting industrial dispute to the arbitra-tion of the persons to be named in the form. Then it isrequired that the matters in dispute should be specified andseveral other details indicated. The form ends with thestatement that the parties agree that the majority decisionof the arbitrators shall be binding on them. This form isto be signed by the respective parties and to be attested bytwo witnesses. In other words, there is no doubt that theform prescribed by s. 10A (2) is exactly similar to thearbitration agreement; it refers to the dispute, it namesthe arbitrator and it binds the parties to644abide by the majority decision of the arbitrators. Thus, itis clear that what s. 10A contemplates is carried out byprescribing an appropriate form under s. 10A (2).After the prescribed form is thus duly signed by the partiesand attested, under sub-s. (3) a copy of it has to beforwarded to the appropriate Government and the conciliationofficer and the appropriate Government has, within fourteendays from the date of the receipt of such copy, to publishthe same in the official Gazette. The publication of thecopy is, in a sense, a ministerial act and the appropriateGovernment has no discretion in the matter. Subsection (4)provides that the arbitrator shall investigate the disputeand submit his award to the appropriate Government; and sub-s. (5) excludes the application of the Arbitration Act tothe arbitrations provided for by s. 10A. It is thus clearthat when s. 10A(4) provides that the arbitrator shallinvestigate the dispute; it merely asks the arbitrator toexercise the powers which have been conferred on him byagreement of the parties under s. 10A(1). There is no doubtthat the appropriate Government plays some part in thesearbitration proceeding--it publishes the agreement; itrequires the arbitration award to be submitted to it; thenit publishes the award; and in that sense, some of thefeatures which characterise the proceedings before theIndustrial Tribunal before an award is pronounced and whichcharacterise the subsequent steps to be taken in respect ofsuch an award, are common to the proceedings before thearbitrator and the award that he may make. But thesimilarity of these features cannot disguise the fact thatthe initial and the inherent power to adjudicate upon thedispute is derived by the arbitrator from the parties,agreement, whereas it is derived by the Industrial Tribunalfrom the statutory provisions themselves. In thisconnection, the provisions of s. 10(2) may be taken intoconsideration645This clause deals with a case where the parties to anindustrial dispute apply in the prescribed manner for areference of their dispute to an appropriate authority, andit provides that the appropriate Government, if satisfiedthat the persons applying represent the majority of eachparty, shall make the reference accordingly. In otherwords, if the parties agree that a dispute pending betweenthem should be referred for adjudication, they move theappropriate Government, and the appropriate Government isbound to make the reference accordingly. Unlike casesfalling under s. 10 (1) where in the absence of an agreementbetween the parties it is in the discretion of theappropriate Government to refer or not to refer anyindustrial dispute for adjudication, under s. 10(2) if thereis an agreement between the parties, the appropriateGovernment has to refer the dispute for adjudication. Butthe significant fact is that the reference has to be made bythe appropriate Government and not by the parties, whereasunder s. 10A the reference is by the parties to thearbitrator named by them and it is after the parties havenamed the arbitrator and entered into a written agreement inthat behalf that the appropriate Government steps in toassist the further proceedings before the named arbitrator.Section 18 (2) is also helpful in this matter. It providesthat an arbitration award which has become enforceable shallbe binding on the parties to the agreement who referred thedispute to arbitration. It would be noticed that thisprovision mentions the parties to the agreement as theparties who have referred the dispute to arbitration andthat indicates that the act of reference is not the act ofthe 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) hadbeen made by the appropriate646Government then the Legislature could have easily usedappropriate language in that behalf assimilating thearbitrator to the position of an Industrial Tribunal and inthat case, it would not have been necessary to provide thatthe Arbitration Act will not apply to arbitrations underthis section. The provisions of s. 10A (5) suggest thatthe proceedings contemplated by s. 10A are arbitrationproceedings to which, but for sub-s. (5), the ArbitrationAct would have applied.

On behalf of the appellants, reliance has been placed on arecent decision of the Bombay High Court in the case of theAir Corporation Employees' Union v. D. 17. Vyas (1). Inthat case, the Bombay High Court has held that an arbitratorfunctioning under s. 10A is subject to the judicialsuperintendence of the High Court under Art. 227 of theConstitution and., therefore, the High Court can entertainan application for a writ of certiorari in respect of theorders passed by the arbitrator. It was no doubt urgedbefore the High Court that the arbitrator in question wasnot amenable to the jurisdiction of the High Court underArt. 227 because he was a private and not a statutoryarbitrator; but the Court rejected the said contention andheld that the proceedings before the arbitrator appointedunder s. 10A had all the essential attributes of a statutoryarbitration under s. 10 of the Act. From the judgment, itdoes not appear that the question about the construction ofs. 10A was argued before the High Court or its attention wasdrawn to the obvious differences between the provisions ofs. 10A and s. 10. Besides, the attention of the High Courtwas apparently not drawn to the tests laid down by thisCourt in dealing with the question as to when anadjudicating body or authority can be deemed to be aTribunal under Art. 136. Like Art. 136, Art. 227 alsorefers to courts and Tribunals and what we have said aboutthe character of the arbitrator appointed under s. 10A byreference to the requirements of Art. 136, may prima facie(1) (1961)64 Bom. L. R. 1647apply to the requirements of Art. 227. That, however, is amatter with which we are not directly concerned in thepresent 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, 648

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