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PETITIONER: THE ENGINEERING MAZDOOR SABHA REPRESENTING WORKMEN  EMPLOYED

       Vs.

RESPONDENT: THE HIND CYCLES LTD., BOMBAY(And Connected Appeal)

DATE OF JUDGMENT: 18/10/1962

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1963 AIR  874            1963 SCR  Supl. (1) 625  CITATOR INFO :  RF         1964 SC1140  (13)  R          1965 SC1595  (23,42)  R          1968 SC 384  (8)  F          1976 SC 425  (10)  RF         1977 SC2155  (24)  RF         1980 SC1896  (80)  D          1987 SC1629  (17)

ACT: Industrial Dispute-Reference to arbitration by agreement  of parties-Arbitration  award-Appeal  by  special  leave-Compe- tence-Industrial   Disputes  Act,  1947(14  of  1947).   ss. 10,10A,18-Constitution of India, Art. 136.

HEADNOTE: The  dispute between the respondent company and its  workmen was  voluntarily referred to arbitration by their  agreement dated  December  3,  1959, under s. 10A  of  the  Industrial Disputes  Act, 1947.  Section 10A(2) prescribed the form  of agreement which required that the parties should state  that they  had agreed to refer the subsisting industrial  dispute to  the arbitration of the persons to be named in the  form. Section  18(2) provided that the arbitration award shall  be binding  on  the parties to the agreement.   The  arbitrator named by the parties entered. upon the reference on December 14,  1959, and pronounced his award on April 8,  1960.   The appellants  seeking to challenge the validity of  the  award applied  for  and obtained special leave to  appeal  to  the Supreme  Court against the decision of the arbitrator.   The respondent pleaded that the appeal was not competent because the  arbitrator  was not a tribunal under Art.  136  of  the Constitution of India. Held, that the decision of an arbitrator to whom  industrial disputes are voluntarily referred under s. 10A of the Indus- trial Disputes Act, 1947, is quasi-judicial in character and amounts to a determination or order under Art. 136(1) of the Constitution of India, but the arbitrator is not a  tribunal within the meaning of that Article because the State has not invested him with its inherent judicial power and the  power

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of  adjudication which he exercises is derived by  him  from the  agreement  of  the parties.   Consequently,  an  appeal against  the decision of an arbitrator under s. 10A  of  the Act does not lie under Art. 136 of the Constitution. 626 Bharat  Bank  Ltd., Delhi v. Employees of  the  Bharat  Bank Ltd.,  Delhi,  [1950]  S.C.R. 459,  Province  of  Bombay  v. Kusaldas S. Advani & Others, [ 1 950] S. C. R. 621 and Durga Shankar  Mehta v. Thakur Raghuraj Singh, [1955] 1 S.  C.  R. 267, relied on. Semble, Art. 226 of the Constitution of India under which  a writ  of certiorari can be issued in an appropriate case  is wider than Art. 136 because the power conferred on the  High Court to issue, certain writs is not conditioned or  limited by  the requirement that the said writs can be  issued  only against the orders of courts or tribunals.

JUDGMENT: CIVIL  APPELLANTS JURISDICTION : Civil Appeals Nos. 182  and 183 of 1962. Appeal by special leave from the Award dated April 8,  1960, of the Arbitrator, Bombay. Civil Appeal No. 204 of 1962. Appeal  by  special leave from the Award  dated  August  27, 1961, of the Arbitrator, Coimbatore. K.   T.  Sule and K. R. Choudhri, for the appellants (in  C. A. Nos. 182 and 1 83 of 1962). C.   K. Daphtary, Solicitor-General of India, S.  K.    Bose and  Sardar Bahadur, for the respondent (in C. A.  Nos.  182 and 183 of 1962). G.   B.  Pai,  J.B. Dadachanji, O. C.  Mathur  and  Ravinder Narain, for the appellant (in C.A. No. 204 of 1962). A.   S. R. Chari, M. K. Ramamurthi, R. K. Garg,   D.      P. Singh and S. C. Agarwala, for the respondents (in C. A.  No. 204 of 1962). 1962.  October 1. 8. The judgment of the Court was delivered by GAJENDRAGADIKAR, J.-These three appeals have been placed for hearing  together because the respective respondents in  the said  appeals  have raised the  same  preliminary  objection against  their  competence.   Civil  Appeals  Nos.  182  and 183/1962 have                             627 been filed against the award pronounced by Mr. D.V. Vyas  on April  8,  1960, in a dispute between  the  appellants,  the Engineering Mazdoor Sabha & another, and the respondent  The Hind  Cycles Limited, Bombay.  This dispute was  voluntarily referred to Mr. Vyas under s. 10A of the Industrial Disputes Act, 1947 (No. 14 of 1947) (hereinafter called the Act),  by the  parties  by their agreement of December 3,  1959.   The Arbitrator entered upon the reference on December 14,  1959, and  pronounced  his  award  on April  8,  1960.   By  their appeals, the appellants have challenged the validity and the propriety  of  the  said award on several  grounds  and  the appeals  have been brought to this Court by  special  leave. The  respondent contends that the arbitrator whose award  is challenged  was  not  a  Tribunal  under  Art.  136  of  the Constitution  and  so,  an appeal by special  leave  is  not competent. Civil  Appeal No. 204/1962 has been filed by the  appellant, the Anglo-American Direct Tea Trading Co. Ltd., against  the respondents,  its workmen, and by its appeal, the  appellant seeks  to challenge the validity and the correctness of  the

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award pronounced by Dr. T. V. Sivanandam to whom the dispute between the parties was voluntarily referred under s. 10A of the  Act.  The award was pronounced on August 27, 1961,  and by special leave the appellant has come to this Court.   The respondents urge that the appeal is incompetent because  the arbitrator  is  not  a  Tribunal  under  Art.  136  of   the Constitution.  That is how the question which arises for our decision  on  these  preliminary objections  is  whether  an arbitrator  to whom parties have voluntarily referred  their disputes for arbitration is a Tribunal under Art. 136. Article  136(1)  provides that notwithstanding  anything  in this  Chapter,  the Supreme Court may., in  its  discretion, grant  special leave to appeal from ,any  judgment,  decree, determination, sentence or 628 order in any cause or matter passed or made by any court  or tribunal  in  the  territory  of  India.   Sub-article   (2) excludes  from  the  scope of  sub-Art.  (1)  any  judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to  the Armed  Forces.   It is clear that Art. 136(1)  confers  very wide  powers on this Court and as such, its provisions  have to be liberally construed.  The constitution-makers  thought it  necessary to clothe this Court with very wide powers  to deal  with all orders and adjudications made by  Courts  and Tribunals in the territory of India in order to ensure  fair administration   of   justice  in  this  country.    It   is significant  that whereas Arts. 133(1) and 134  (1)  provide for  appeals  to this Court against  judgments,  decrees  or final  orders passed by the High Courts, no such  limitation is prescribed by Art. 136(1).  All Courts and all  Tribunals in  the  territory  of India except those  in  cl.  (2)  are subject  to the appellate jurisdiction of this  Court  under Art.  136(1)  It is also clear that  whereas  the  appellate jurisdiction of this Court under Arts. 133(1) and 134(1) can be invoked only against final orders, no such limitation  is imposed  by  Art.  136(1).  In other  words,  the  appellate jurisdiction  of this Court under this latter provision  can be   exercised  even  against  an  interlocutory  order   or decision.  Causes or matters covered by Art. 136(1) are  all causes and matters that are brought for adjudication  before Courts  or Tribunals.  The sweep of this provision  is  thus very  wide.  It is true that in exercising its powers  under this  Article,  this  Court in  its  discretion  refuses  to entertain applications for special leave where it appears to the  Court  that interference with the orders sought  to  be appealed  against  may not be necessary in the  interest  of justice.  But the limitations thus introduced, in  practice, are  the  limitations  imposed by the Court  itself  in  its discretion.  They are not prescribed by Art. 136(1). For  invoking Art. 136(1), two condition must be  satisfied. The proposed appeal must be from any  629 judgment, decree, determination, sentence or order, that  is to  say,  it  must  not be against  a  purely  executive  or administrative order.  If the determination or order  giving rise   to  the  appeal  is  a  judicial  or   quasi-judicial determination  or order, the first condition  is  satisfied. The second condition imposed by the Article is that the said determination or order must have been made or passed by  any Court  or  Tribunal  in  the  territory  of  India.    These conditions,  therefore,  require  that  the  act  complained against must have the character of a judicial or quasi-judi- cial  act and the authority whose act is complained  against must  be a Court or a Tribunal.  Unless both the  conditions

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are satisfied, Art. 136 (1) cannot be invoked. The  distinction between purely administrative or  executive acts and judicial or quasi-judicial acts has been considered by this Court on several occasions.  In the case of Province of  Bombay v. Kusaldas s. Advani, (1) Mahajan, J.,  observed that  the question whether an act is a judicial or a  quasi- judicial one or a purely executive act depends on the  terms of  the particular rule and the nature, scope and effect  of the  particular  power in exercise of which the act  may  be done   and  would,  therefore,  depend  on  the  facts   and circumstances  of each case.  Courts of law  established  by the  State decide cases brought before them  judicially  and the decisions thus recorded by them fall obviously under the category of judicial decisions.  Administrative or executive bodies,  on the other hand, are often called upon  to  reach decisions  in several matters in a purely administrative  or executive mariner and these decisions fall clearly under the category of administrative or executive orders.  Even judges have,  in  certain matters, to act  administratively,  while administrative  or  executive authorities may  have  to  act quasi-judicially  in dealing with some matters entrusted  to their  jurisdiction.  Where an authority is required to  act judicially either (1)  [1950] S. C. R. 621. 630 by  an express provision of the statute under which it  acts or  by  necessary  implication  of  the  said  statute,  the decisions  of such an authority generally amount  to  quasi- judicial  decisions.   Where,  however,  the  executive   or administrative bodies are not required to act judicially and are   competent  to  deal  with  issues  referred  to   them administratively,  their  conclusions cannot be  treated  as quasi-judicial  conclusions.   No doubt, even  while  acting administratively,  the  authorities must act  bonafide;  but that is different from saying that they must act judicially. Bearing  in  mind  this broad distinction  between  acts  or orders which are judicial or quasi-judicial on the one  hand and administrative or executive acts on the other, there  is no   difficulty  in  holding  that  the  decisions  of   the arbitrators  to  whom industrial  disputes  are  voluntarily referred  under  s.  10A  of  the  Act  are  quasi  judicial decisions and they amount to a determination or order  under Art.  136  (1).   This position is  not  seriously  disputed before  us.  What is in dispute between the parties  is  not the  character  of the decisions against which  the  appeals have  been filed, but it is the character of  the  authority which  decided the disputes.  The respondents  contend  that the  arbitrators  whose  awards  are  challenged,  are   not Tribunals, whereas the appellants contend that they are. Article 136(1) refers to a Tribunal in contradistinction  to a Court.  The expression "a Court" in the technical sense is a  Tribunal constituted by the State as a part  of  ordinary hierarchy  of  courts which are invested  with  the  State’s inherent  judicial  powers.  The Tribunal  as  distinguished from  the  Court,  exercises  judicial  powers  and  decides matters  brought before it judicially or  quasi  judicially, but  it does not constitute a court in the technical  sense. The Tribunal, according to the dictionary meaning, is a seat of justice; and in the discharge of its functions, it shares some  of  the  characteristics of  the  court.   A  domestic Tribunal appointed in departmental proceedings, for                             631 instance,  or  instituted by an industrial  employer  cannot claim   to  be  a  Tribunal  under  Art.   136(1).    Purely administrative  Tribunals are also outside the scope of  the

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said Article.  The Tribunals which are contemplated by Art. 136(1)  are clothed with some of the powers of  the  courts. They  can  compel witnesses to appear, they  can  administer oath,   they  are  required  to  follow  certain  rules   of procedure;  the  proceedings  before them  are  required  to comply with rules of natural justice, they may not be  bound by  the  strict  and  technical  rules  of  evidence,   but, nevertheless,  they must decide on evidence  adduced  before them; they may not be bound by other technical rules of law, but  their decisions must, nevertheless, be consistent  with the general principles of law.  In other words, they have to act  judicially  and reach their decisions in  an  objective manner  and they cannot proceed purely  administratively  or base their conclusions on subjective tests or  inclinations. The  procedural rules which regulate the proceedings  before the  Tribunals and the powers conferred on them  in  dealing with matters brought before them, are sometimes described as the  "trappings of a court’ and in determining the  question as  to whether a particular body or authority is a  Tribunal or  not,  sometimes  a rough and ready test  is  applied  by enquiring whether the said body or authority is clothed with the trappings of a court. In Shell Company of Australia, Ltd. v. Federal  COMMissioner of  Taxation (1), the Privy Council had to consider  whether the Board of Review created by s. 41 of the (Federal) Income Tax Assessment Act, 1922-25, to review the decisions of  the Commissioner  of  Taxation,  was  a  court  exercising   the judicial power of the Commonwealth within. the meaning of s. 71 of the Constitution of Australia; and it was held that it was  not a court but was an administrative  tribunal.   Lord Sankey,  L.  C.,  examined the relevant  provisions  of  the statute  which  created  the  said Board  and  came  to  the conclusion that the Board appeared to be in (1)  [1931] A. C. 275. the nature of administrative machinery to which the taxpayer can  resort at his option in order to have  his  contentions reconsidered.  He then added that an administrative tribunal may  Act  judicially,  but still  remain  an  administrative tribunal as distinguished from a Court, strictly  so-called. Mere externals do not make a direction to an  administrative officer  by  an ad hoc tribunal an exercise by  a  court  of judicial power (pp. 297-298).  It is in this connection that Lord Sankey observed that the authorities are clear to  show that  there  are tribunals with many of the trappings  of  a Court  which,  nevertheless, are not Courts  in  the  strict sense of exercising judicial power.  In that connection, His Lordship enumerated some negative propositions.  He observed that  a Tribunal does not become a Court because it gives  a final  decision, or because it hears witnesses on  oath,  or because  two  or more contending parties  appear  before  it between  whom  it  has  to  decide,.  or  because  it  gives decisions  which affect the rights of subjects,  or  because there  is an appeal to a Court, or because it is a  body  to which  a matter is referred by another body  (pp.  296-297). These  negative propositions indicate that the  features  to which  they refer may constitute the trappings of  a  Court; but the presence of the said trappings does not  necessarily make  the Tribunal a Court.  It is in this context that  the picturesque  phrase  ’the trappings of a Court’ came  to  be used by the Privy Council. This  question  was considered by this Court in  The  Bharat Bank  Ltd.,  Delhi  v. Employees of the  Bharat  Bank  Ltd., Delhi. (1) This decision is apposite for our purpose because the  question which came to be determined was in  regard  to the character of the Industrial Tribunals constituted  under

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the  Act.  The majority decision of this Court was that  the functions  and  duties of the Industrial Tribunal  are  very much like those of a body discharging judicial functions and so, though the Tribunal is not a Court, (1)  [1950] S. C. R. 459,  633 it is nevertheless a Tribunal for the purposes of Art.  136. In other words, the majority decision which, in a sense, was epoch  making, held that the appellate jurisdiction of  this Court under Art. 136 can be invoked in proper cases  against awards  and other orders made by Industrial Tribunals  under the Act.  In discussing the question as to character of  the Industrial Tribunal functioning under the Act, Mahajan, J., observed  that  the  condition  precedent  for  bringing   a tribunal within the ambit of Art. 136, is that it should  be constituted by the State; and he added that a Tribunal would be outside the ambit of Art. 136 if it is not invested  with any  part  of  the  judicial  functions  of  the  State  but discharges  purely administrative or executive  duties.   In the opinion of the learned judge, Tribunals which are  found invested  with certain functions of a Court of  justice  and have some of its trappings also would fall within the  ambit of Art. 136 and would be Subject to the appellate control of this  Court whenever it is found necessary to exercise  that control  in  the  interests of justice.  It  would  thus  be noticed that apart from the importance of the trappings of a Court,  the  basic and essential condition  which  makes  an authority  or a body a tribunal under Art. 136, is  that  it should  be constituted by the State and should  be  invested with  the State’s inherent judicial power.  Since this  test was  satisfied  by the Industrial Tribunals under  the  Act, according  to  the majority decision, it was held  that  the awards  made by the Industrial Tribunals are subject to  the appellate jurisdiction of this Court under Art. 136.   In  Durga  Shankar  Mehta v. Thakur  Raghuraj  Singh  (1), Mukherjea,  J., who delivered the unanimous opinion  of  the Court  observed  that it was well settled  by  the  majority decision  of this Court in the case of Bharat Bank Ltd.  (2) that the expression "Tribunal" as used in Art. 136 does  not mean  the  same thing as "Court" but  includes,  within  its ambit, all adjudicating bodies, (1)  [1955] 1 S.C.R. 267. (2) [1950] S.C.R. 459. 634 provided they are constituted by the State and are  invested with judicial as distinguished from purely administrative or executive  functions.  Thus, there can be no doubt that  the test which has to be applied in determining the character of an  adjudicating  body  is whether the said  body  has  been invested  by  the State with its inherent  judicial  power’. This  test  implies that the ad indicating  body  should  be constituted  by  the State and should be invested  with  the State’s  judicial power which it is authorised to  exercise. The  same principle has been reiterated in  Harinagar  Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala (1). It  is now necessary to examine the scheme of  the  relevant provisions of the Act bearing on the voluntary reference  to the  arbitrator, the powers of the said arbitrator  and  the procedure which he is required to follow.  Section 16A under which  voluntary reference has been made in both  the  cases was  added to the Act by Act 36 of 1956.  It reads as  under :-               "10A. (1) Where any industrial dispute  exists               or  is  apprehended and the employer  and  the               workmen   agree  to  refer  the   dispute   to

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             arbitration, they may, at any time before  the               dispute has been referred under section 10  to               a   Labour  Court  or  Tribunal  or   National               Tribunal,  by a written agreement,  refer  the               dispute to arbitration and the reference shall               be  to such person or persons  (including  the               presiding   officer  of  a  Labour  Court   or               Tribunal   or   National   Tribunal)   as   an               arbitrator or Arbitrators as may be  specified               in the arbitration agreement.               (2)   An arbitration agreement referred to  in               sub-section  (1)  shall be in  such  form  and               shall be signed by the parties thereto in such               manner as may be prescribed, (1)  [1962] 2 S.C.R. 339  635               (3)   A  copy  of  the  arbitration  agreement               shall   be   forwarded  to   the   appropriate               Government  and the conciliation  officer  and               the   appropriate  Government  shall,   within               fourteen days from the date of the receipt  of               such  copy, publish the same in  the  official               Gazette.               (4)   The  arbitrator  or  arbitrators   shall               investigate  the  dispute and  submit  to  the               appropriate  Government the arbitration  award               signed   by   the  arbitrator   or   all   the               arbitrators, as the case may be.               (5)   Nothing  in  the arbitration  Act,  1940               shall   apply  to  arbitrations   under   this               section." Consequent  upon  the  addition  of  this  section,  several changes  were  made  in the other  provisions  of  the  Act. Section  2  (b) which defines an award was  amended  by  the addition of the words "it includes an arbitration award made under  section  10A".  In other words, as a  result  of  the amendment  of  the  definition  of  the  word  "award",   an arbitration  award has now become an award for the  purposes of  the Act.  The inclusion of the arbitration award  within the  meaning  of  s. 2 (b) has led  to  the  application  of sections 17, 17A, 18(2), 19 (3), 21, 29, 30, 33C and 36A  to the  arbitration  award.  Under s. 17  (2),  an  arbitration award  when  published under s. 17 (1), shall be  final  and shall  not be called in question by any Court in any  manner whatsoever.   Section  17A  provides  that  the  arbitration agreement  shall become enforceable on the expiry of  thirty days  from  the date of its publication 1 under s.  17,  and under  s.  18(2),  it  is binding  on  the  parties  to  the agreement who referred the dispute to arbitration; under  s. 19(3), it shall. subject to the provisions of s, 19,  remain in  operation  for a period of one year  provided  that  the appropriate  Government may reduce the said period and-  fix such 636 other  period  as it thinks fit; provided further  that  the said  period  may also be extended as prescribed  under  the said  proviso.  The other sub-sections of s. 19  would  also apply  to the arbitration award.  Section 21 which  requires certain matters to be kept confidential is applicable and so section   30   which  provides  for  a   penalty   for   the contravention  of  s. 21, also applies.   Section  29  which provides for penalty for breach of an award can ’be  invoked in  respect  of  an arbitration award.   Section  33C  which provides for a speedy remedy for the recovery of money  from an  employer is applicable; and s. 36A can also  be  invoked

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for  the interpretation of any provision of the  arbitration award.  In other words, since an arbitration award has  been included  in  the  definition  of  the  word  ’Award’  these consequential changes have made the respective provisions of the Act applicable to an arbitration award. On the other hand, there are certain provisions which do not apply  to  an  arbitration award.  Sections 23  &  24  which prohibit  strikes  and lock-outs, are  inapplicable  to  the proceedings  before  the arbitrator to whom a  reference  is made  under s. 10A, and that shows that the Act has  treated the arbitration award and the prior proceedings in  relation to it as standing on a different basis from an award and the prior proceedings before the Industrial Tribunals or  Labour Courts.   Section 20, which deals with the commencement  and conclusion of proceedings,, provides, inter alia, by  sub-s. (3) that proceedings before an arbitrator under s. 10A shall be deemed to have commenced on the date of the reference  of the  dispute for arbitration and such proceedings  shall  be deemed to have concluded on the date on which the award  be- comes  enforceable under s. 17A.  It would be  noticed  that just  as  in the case of proceedings before  the  Industrial Tribunal  commencement of the Proceedings is marked  by  the reference   under  s.  10,  so  the  commencement   of   the proceedings before the arbitrator  637 is  marked by the reference made by the parties  themselves, and  that  means the commencement of the  proceedings  takes place even before the appropriate Government has entered  on the  scene  and  has taken any action in  pursuance  of  the provisions of s. 10A. Rules have been framed by the Central Government and some of the State Governments under s. 38(2)    (aa).   and    These rules make provisions for the form of arbitration agreement, the place and time of hearing,     the    power    of    the arbitrator to take evidence, the manner in which the summons should be served, the powers of the arbitrator to proceed ex parte,  if necessary, and the power to correct  mistakes  in the  award and such other matters.  Some of these Rules  (as for  instance,  Central Rules 7, 8, 13, 15, 16 & IS  to  28) seem  to make a distinction between an arbitrator  and  the- other authorities under the Act, whereas the Rules framed by some  of the States (for instance the rules, framed  by  the Madras State 31; 37, 38, 39,  40, 41 & 42) seem to treat the arbitrator  on  the  same basis  as  the  other  appropriate authorities  under  the Act.  That, shortly stated,  is  the position  of the relevant provisions of the statute and  the Rules  framed  thereunder.   It is in  the  light  of  these provisions  that we must now consider the character  of  the arbitrator  who enters upon arbitration proceedings  as-,  a result of the reference made to him under s. 10A. The   learned  Solicitor-General  contents  that   such   an arbitrator  is  no  more  and  no  better  than  a   private arbitrator,  to whom a reference can be made by the  parties under   an   arbitration  agreement  as  defined by   the Arbitration Act, 1940 (No.  X of 1940).  He argues that such an  arbitrator has to act judicially, has to follow a,  fair procedure,  take evidence, hear the parties and come to  his conclusion in the light of the evidence adduced before  him; and  that  is all that the arbitrator to whom  reference  is made  under s. 10A does. i ’It may be that  the  arbitration award is treated as an award for certain purposes 638 under the Act; but the position, in law, still remains  that it  is  an  award made by an  arbitrator  appointed  by  the parties.   Just  as an award made by  a  private  arbitrator

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becomes a decree subject to the provisions of ss. 15, 16, 17 and  30 of the Arbitration Act, and thus binds the  parties, so  does  an  award of the arbitrator under  s.  10A  become binding on the parties by virtue of the relevant  provisions of the Act.  Against an award made by a private  arbitrator, no  writ can issue under Art. 226; much less can  an  appeal lie  under Art. 136.  The position with regard to the  award made  by  an arbitrator under s. 10A is  no  different.   In support  of this argument, he has relied on the decision  in R.  V. Disputes Committee of the National Joint Council  for the  Craft Dental Technicians(1).  On a motion for an  order of  certiorari to quash an order made by the  Disputes  Com- mittee,  Lord  Goddard, C. J., held that the  Court  has  no power  to  direct the issue of orders of  certiorari  or  of Prohibition  addressed  to an arbitrator  directing  that  a decision  by him should be quashed or that he be  prohibited from proceeding in an arbitration, unless he is acting under powers conferred by statute.  "There is no instance of which I  know  in  the  books",  observed  Lord  Goddard,  "’where certiorari or prohibition has gone to any arbitrator, except a  statutory  arbitrator, and a statutory  arbitrator  is  a person  to whom, by statute, the parties must  resort."  The Solicitor-General suggests that though some powers have been conferred  on  the  arbitrator appointed under  s.  10A,  he cannot  be  treated as a statutory arbitrator,  because  the parties are not compelled to go to any person named as  such by  the  statute.  The arbitrator is an  arbitrator  of  the parties’ choice and so, he cannot be treated as a  statutory arbitrator. On  the  other  hand, Mr. Pai has urged  that  it  would  be unreasonable  to treat the present arbitrator as  a  private arbitrator,  because s. 10A gives statutory  recognition  to the appointment of the arbitrator and (1)  [1953] 1 All.  E. R. 327.                             639 the consequential changes made in the Act and the  statutory rules  framed  thereunder  clearly show  that  he  has  been clothed  with quasi-judicial powers and his proceedings  are regulated  by  rules of procedure.  Therefore, it  would  be appropriate  to treat him as a statutory arbitrator  and  as such,  a writ of certiorari would lie against  his  decision under  Art.  226.  In support of this argument,  Mr.Pai  has referred  us to the decision of the court of Appeal  in  The King v. Electricity Commissioners Ex-parte London  Electri- city  Joint Committee Co. (1920) Ltd.(1) In that, case,  the scheme  framed by the Electricity Commissioners  established by  s.  1   of  the  Electricity  (Supply)  Act,  1919,  was challenged  and  it was held that the  impugned  scheme  was ultra  vires,  and  so, a writ  of  prohibition  was  issued prohibiting  the  Commissioners  from  proceeding  with  the further  consideration  of  the scheme.   Dealing  with  the question as to whether a writ can issue against a body  like the  Electricity  Commissioners constituted under  the  Act, Lord  Atkin referred to the genesis and the history  of  the writs  of  prohibition  and certiorari and  held  ’that  the operation of the writs has extended to control the  proceed- ings  of bodies which do not claim to be, and would  not  be recognised  as,  Courts of justice.  Wherever  any  body  of persons  having  legal  authority  to  determine   questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they  are subject to the controlling jurisdiction of the King’s  Bench Division exercised in these writs (p. 205).  Then Lord Atkin referred  to a large number of previous decisions  in  which writs   had  been  issued  against   different   authorities

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statutorily  entrusted  with  the  discharge  of   different duties.   To the same effect is the decision in the case  of R. V. Northumberland Compensation ’Appeal Tribunal  Ex-parte Shaw,  (2)  "de also Halsbury’s Laws of  England  3rd  Edn., Vol.. 2, p.,62, and Vol.  II, p. 122. (1) [1924] 1 K.B.D. 171,  (2) [1951] 1 All.  E.R. 268. The argument, therefore, is that against an award Pronounced by  an  arbitrator  appointed  under  s.  10A,  a  writ   of certiorari would lie under Art. 226, and so, the  arbitrator should  be deemed to be a Tribunal even for the purposes  of Art.  136.   In  our opinion, this  argument  is  not  well- founded.   Art. 226 under which a writ of certiorari can  be issued  in an appropriate case, is, in a sense,  wider  than Art  . 1336, because the power conferred on the High  Courts to issue certain writs is not conditioned or limited by  the requirement  that the said writs can be issued only  against the  orders of Courts or Tribunals.  Under Art.  226(1),  an appropriate writ can be issued to any person or  authority,. including  in appropriate cases any Government,  within  the territories  prescribed.  Therefore even if  the  arbitrator appointed under section 10A is not a Tribunal under Art. 136 in  a  proper case, a writ may lie against his  award  under Art.  226.   That is why the argument that a  writ  may  lie against  an  award  made  by such  an  arbitrator  does  not materially  assist the appellants’ case that the  arbitrator in question is a tribunal under Art. 136. It may be conceded that having regard to several  provisions contained  in  the Act and the rules framed  thereunder,  an arbitrator  appointed under s. 10A cannot be treated  to  be exactly  similar to a private arbitrator to whom  a  dispute has  been referred under an arbitration agreement under  the Arbitration Act, The arbitrator under s. 10A is clothed with certain powers, his procedure is regulated by certain  rules and  the  award  pronounced by him  is  given  by  statutory provisions a certain validity and a binding character for  a specified period.  Having regard to these provisions, it may perhaps be, possible to describe such an arbitrator, as in a loose sense, a statutory arbitrator and to that extent,  the argument  of the learned Solicitor-General may be  rejected. But  fact that the arbitrator under s. 10A is not exactly 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

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refers  to its adjudication certain classified  classes  of disputes.  That is the essential feature of what is properly called  statutory adjudication or arbitration.  That is  why we think the argument strenuously urged before us by Mr. Pai that a writ of certiorari can lie against his award is of no assistance to the appellants when they contend that such  an arbitrator is a Tribunal under Art. 136. Realising  this  difficulty, Mr. Sule  concentrated  on  the construction  of s. 10A itself and urged that on a fair  and reasonable  construction of s. 10A, it should be  held  that the  arbitrator cannot be distinguished from  an  Industrial Tribunal and is therefore, a 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  agreement. The  section is not very happily worded; but  the  essential features  of its, scheme are not in doubt.  If  a  reference has  not  been made under s. 10, the parties  can  agree  to refer  their dispute to the arbitrator of their choice,  the agreement is followed by writing, the writing specifies  the arbitrator  or  arbitrators to whom the reference is  to  be made  and  the reference shall be made accordingly  to  such arbitrator  or arbitrators.  Mr. Sule contend sand it is  no doubt  an ingenious argument-that the last clause of s.  10A means  that after the written agreement is entered  into  by the parties, the reference shall be made to the person named by  the  agreement but it shall be made by  the  appropriate Government.   In  other words, the argument is that  if  the parties enter into a written agreement as to the person  who should adjudicate.Upon their disputes, it is the  Government that steps in and makes the reference to such named  person. The arbitrator or arbitrators are (1)[1950] S.C.R. 459.  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

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stage  of the operation of s. 10A (1).  The  said  provision deals with what the parties can do and provides that if  the parties  agree  and  reduce their agreement  to  writing,  a reference  shall be to the person or persons named  by  such writing.  The fact that the parties can agree to refer their dispute  to the Labour Court, Tribunal or National  Tribunal makes  no difference to the construction of  the  provision. Sub-section  (2) prescribes the form of agreement  and  this form  also  supports  the  same  construction.   This   form requires that the parties should state that they have agreed to  refer the subsisting industrial dispute to the  arbitra- tion  of  the persons to be named in the form.  Then  it  is required that the matters in dispute should be specified and several  other  details indicated.  The form ends  with  the statement that the parties agree that the majority  decision of  the arbitrators shall be binding on them.  This form  is to be signed by the respective parties and to be attested by two  witnesses.  In other words, there is no doubt that  the form  prescribed  by s. 10A (2) is exactly  similar  to  the arbitration  agreement; it refers to the dispute,  it  names the arbitrator and it binds the parties to 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 sub- s.  (5) excludes the application of the Arbitration  Act  to the  arbitrations provided for by s. 10A.  It is thus  clear that  when  s.  10A(4) provides that  the  arbitrator  shall investigate  the dispute; it merely asks the  arbitrator  to exercise  the  powers which have been conferred  on  him  by agreement of the parties under s. 10A(1).  There is no doubt that  the  appropriate Government plays some part  in  these arbitration  proceeding--it  publishes  the  agreement;   it requires  the arbitration award to be submitted to it;  then it  publishes  the  award; and in that sense,  some  of  the features  which  characterise  the  proceedings  before  the Industrial Tribunal before an award is pronounced and  which characterise the subsequent steps to be taken in respect  of such  an  award, are common to the  proceedings  before  the arbitrator  and  the  award  that  he  may  make.   But  the similarity  of these features cannot disguise the fact  that the  initial and the inherent power to adjudicate  upon  the dispute  is  derived  by the arbitrator  from  the  parties, agreement, whereas it is derived by the Industrial  Tribunal from   the   statutory  provisions  themselves.    In   this connection,  the  provisions of s. 10(2) may be  taken  into consideration  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

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them  should  be referred for adjudication,  they  move  the appropriate  Government, and the appropriate  Government  is bound  to  make  the reference  accordingly.   Unlike  cases falling under s. 10 (1) where in the absence of an agreement between  the  parties  it  is  in  the  discretion  of   the appropriate  Government  to  refer  or  not  to  refer   any industrial dispute for adjudication, under s. 10(2) if there is  an  agreement  between  the  parties,  the   appropriate Government  has to refer the dispute for adjudication.   But the significant fact is that the reference has to be made by the  appropriate Government and not by the parties,  whereas under  s.  10A  the  reference is  by  the  parties  to  the arbitrator  named by them and it is after the  parties  have named the arbitrator and entered into a written agreement in that  behalf  that the appropriate Government  steps  in  to assist the further proceedings before the named arbitrator. Section 18 (2) is also helpful in this matter.  It  provides that an arbitration award which has become enforceable shall be binding on the parties to the agreement who referred  the dispute  to  arbitration.   It would be  noticed  that  this provision  mentions  the  parties to the  agreement  as  the parties  who  have referred the dispute to  arbitration  and that  indicates that the act of reference is not the act  of the appropriate Government, but the act of the parties them- selves. Section  10A (5) may also be considered in this  connection. If’ the reference to arbitration under s.    10A   (1)   had been made by the appropriate 646 Government  then  the  Legislature could  have  easily  used appropriate   language  in  that  behalf  assimilating   the arbitrator to the position of an Industrial Tribunal and  in that case, it would not have been necessary to provide  that the  Arbitration  Act will not apply to  arbitrations  under this section.  The provisions of s. 10A (5)  suggest    that the proceedings contemplated by s. 10A    are    arbitration proceedings  to which, but for sub-s. (5),  the  Arbitration Act would have applied. On  behalf of the appellants, reliance has been placed on  a recent decision of the Bombay High Court in the case of  the Air  Corporation Employees’ Union v. D. 17.  Vyas  (1).   In that case, the Bombay High Court has held that an arbitrator functioning  under  s.  10A  is  subject  to  the   judicial superintendence  of  the High Court under Art.  227  of  the Constitution  and., therefore, the High Court can  entertain an  application for a writ of certiorari in respect  of  the orders  passed  by the arbitrator.  It was  no  doubt  urged before  the High Court that the arbitrator in  question  was not  amenable  to the jurisdiction of the High  Court  under Art.  227  because  he was a private  and  not  a  statutory arbitrator;  but the Court rejected the said contention  and held  that the proceedings before the  arbitrator  appointed under s. 10A had all the essential attributes of a statutory arbitration  under s. 10 of the Act.  From the judgment,  it does not appear that the question about the construction  of s. 10A was argued before the High Court or its attention was drawn  to the obvious differences between the provisions  of s. 10A and s. 10.  Besides, the attention of the High  Court was  apparently  not drawn to the tests laid  down  by  this Court   in  dealing  with  the  question  as  to   when   an adjudicating  body  or  authority  can be  deemed  to  be  a Tribunal  under  Art.  136.  Like Art. 136,  Art.  227  also refers  to courts and Tribunals and what we have said  about the  character of the arbitrator appointed under s.  10A  by reference to the requirements of Art. 136, may prima facie

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(1) (1961)64 Bom. L. R. 1  647 apply to the requirements of Art. 227.  That, however, is  a matter  with  which  we are not directly  concerned  in  the present appeals. Mr. Sule made a strong plea before us that if the arbitrator appointed  under  s. 10A was not treated as a  Tribunal,  it would lead to unreasonable consequences.  He emphasised that the policy of the legislature in enacting section 10A was to encourage  industrial  employers  and  employees  to   avoid bitterness  by referring their disputes voluntarily  to  the arbitrators  of their own choice, but this  laudable  object would be defeated if it is realised by the parties that once reference  is made under s. 10A the proceedings  before  the arbitrator  are  not subject to the scrutiny of  this  Court under  Art. 136.  It is extremely anomalous, says Mr.  Sule, that  parties  aggrieved  by  an  award  made  by  such   an arbitrator  should be denied the protection of the  relevant provisions of the Arbitration Act as well as the  protection of the appellate jurisdiction of this Court under Art.  136. There is some  force in this connection., It appears that in enacting  section  10A  the  Legislature  probably  did  not realise  that  the position of  an  arbitrator  contemplated therein  would become anomalous in view of the fact that  he was not assimilated to the status of an Industrial  Tribunal and   was  taken  out  of  the  provisions  of  the   Indian Arbitration  Act.   That,  however,  is  a  matter  for  the Legislature to consider. In  the  result,  the preliminary objection  raised  by  the respondents in the appeals before us must be upheld and  the appeals  dismissed on the ground that they  are  incompetent under  Article 136.  The appellants to pay the costs of  the respondents  in C A. No. 204 of 1962.  No order as to  costs in C. A. Nos. 182 & 183 of 1962. Appeal dismissed, 648