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PETITIONER: ASBESTOS CEMENT LTD.

       Vs.

RESPONDENT: P.D. SAWARKAR & ORS.

DATE OF JUDGMENT: 23/02/1970

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. MITTER, G.K.

CITATION:  1971 AIR  100            1970 SCR  (3) 752  1970 SCC  (1) 475  CITATOR INFO :  R          1972 SC1598  (12)

ACT: Constitution  of  India,  Arts. 133(1)  &  226-Final  order- Interim award by arbitrators under Industrial Disputes  Act, 1947 deciding one of several issues-Other issues left to  be decided later-Award published in Gazette under s. 17 of Act- Such  award  whether  an  interlocutory  order-High  Court’s decision dismissing writ petition against such award whether a ’final order,’.

HEADNOTE: The  4th  respondent was a union of workmen in  one  of  the factories ,owned by the appellant company.  By an  agreement between  the  4th respondent and the company  a  charter  of workmen’s   demands   was  referred   to   adjudication   by arbitrators  under  s. 1OA of the Industrial  Disputes  Act, 1947.  The arbitrators decided first the dispute relating to dearness allowance, leaving other disputes to be  considered later.   This Part I award was published in  the  Government Gazette under s. 17 of the Act.  Aggrieved by the said award the  company  filed a writ petition under  Art.  226-of  the Constitution.  The petition was dismissed by the High Court. The company applied to the High Court for leave to appeal to this  Court.   This  was  refused on  the  ground  that  the arbitration  was  not completed and  therefore  neither  the award in question nor the High Court’s order dismissing  the writ  petition was a final order within the meaning of  Art. 133(1) of the Constitution.  Against the High Court’s  order refusing  leave. the company, by special leave,  applied  to this Court.      HELD  : (i) Under sub-s. 4 of s. 10-A, the  arbitrators submitted the Part I Award duly signed by all of them to the Government.   As  required by s. 17(1), the  said.   Part  I Award  was published in the manner prescribed  therefore  by the State Government and thereupon under s. 17(2) it  became final  and could not be called in question in any  court  in any  manner  whatsoever.  Under s. 17A(1) the  award  became enforceable  on the expiry of 30 days from the date  of  its publication.   Therefore so far as the question of  dearness allowance among other disputes, was concerned, Part I  Award

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became  final  and binding on the parties.  It  was  not  an interlocutory  order in the sense of any dispute in  respect of its subject matter remaining to be finally adjudicated by the  arbitrators  or the rights of the parties  in  relation thereto remaining pending any further determination. [755 B- E]      (ii) The petition filed by the appellant-company for  a writ  of certiorari and for quashing the said Part  I  Award under  Art. 226 was a proceeding independent of the  dispute between  the  parties.  Such a writ proceeding  was  not  an interlocutory  proceeding  nor the order  dismissing  it  an interlocutory order leaving any question raised in the  writ petition  to be determined at any later stage.  The)  effect of the dismissal of the writ petition by the High Court  was that  the said Part I Award, Subject to any appeal  to  this Court,  was  not  liable to be  questioned  on  the  grounds alleged  in  that writ petition  and  the  appellant-company would  be bound to pay to its workmen dearness allowance  at the  rates provided in that award.  The controversy  between the  parties on questions raised in the writ  petition  -was finally determined and brought to an end as a result of  the order ,dismissal.  In view of the decision of this Court  in Ramesh v. Seth Genadadal 753 the  High Court must be said to be in error in holding  that its order dismissing the writ petition was not a final order within  the  meaning  of Art. 133(1)  and  that  no  appeal, therefore, lay therefrom in this Court. [755 F-G; 766 B-C]      Ramesh v. Seth Gendadal [1966] 3 S.C.R. 198, applied.      Mohanlal Maganlal Thacker v. State of Gujarat, [19681 2 S.C.R. 685, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2448 of1969.      Appeal  by special leave from the order dated  November 25,  1968  of the Bombay High Court in Supreme  Court  Civil Application No. 2687 of 1968.       V.  M. Tarkunde, P. N. Tiwari, and  O. C. Mathur,  for the appellant.       B. Sen and S. K. Dholakia, for respondent No. 4.       The Judgment of the Court was delivered by       Shelat,  J. This appeal, by special leave, raises  the question  as to whether an order dismissing a writ  petition challenging  the  validity  of an  industrial  award,  which disposes  of  one of the items of a charter  of  demands  by workmen but leaves the rest of the demands to be adjudicated by  a,  subsequent  award,  is a  final  order  in  a  civil proceeding of a High Court within the meaning of Art. 133(i) of the Constitution.       The following  are the relevant facts       The appellant-company conducts factories at Mulund  in Greater  Bombay, Kymore, Calcutta and Podanur.  The  present dispute  relates to the factory at Mulund where the  company employs more than 1700 workmen and has its Head Office also. On September 21, 1962 the 4th respondent union on behalf  of the  workmen  of the Mulund factory submitted a  charter  of demands  consisting  of 20 items including  the  demand  for increased   dearness  allowance.   By  an  agreement   dated November 26, 1964 between the appellant-company and the  4th respondent  union  made  under S.  10-A  of  the  Industrial Disputes  Act,  1947,  the said demands  were  referred  for adjudication  to  a  board  of  arbitrators  consisting   of respondents  I to 3. A notification dated December  5,  1964

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referring the said disputes to respondents 1 to 3 was issued by   the  Maharashtra  Government  and  published   in   the Government  Gazette.  Demand No. 1A in the said  charter  of demands  related  to dearness allowance to be paid  to  both monthly and daily rated workmen at the rates threin set out. The  arbitrators decided to hear and dispose of, first,  the dispute as to dearness ’allowance -and then to deal with the rest of the 754 disputes  relating  to  other  demands.   Accordingly,   the parties were heard and ultimately the arbitrators gave their award  which they called Part 1 Award dated March 27,  1965. The said award was a majority decision in the sense that one of  the arbitrators dissented from the opinion of the  other two.   So far as the present appeal is concerned, it is  not necessary  to set out the contents of the award.   The  said Part  I  award was thereafter published  in  the  Government Gazette dated April 15, 1965 and became enforceable under s. 17-A  of the Act on the expiry of 30 days from the  date  of its publication.  If the Appellant-company were to be right, the said award imposed a burden of about Rs. 40 lacs by  way of  arrears,  the award having been  made  retrospective  in operation,  and  Rs. 5.58 lacs as and by  way  of  recurring liability every year.      Aggrieved by the said award the appellant-company filed a  writ  petition under Art. 226 of the  Constitution  being Special Civil Application No. 824 of 1965 in the High  Court of  Bombay for quashing the said award on  diverse  grounds. The  writ  petition came up for hearing  before  a  Division Bench  and was dismissed on merits by an order  dated  April 10,   1968.   The  appellant-company  thereupon   filed   an application  being Supreme Court Civil Application No.  2687 of 1968 for leave to appeal to this Court.  That application was  rejected  by  an order dated November  25,  1968  which stated      "No  application  lies under article 226  of  the  Con- stitution as there is further arbitration." It  appears that the words "Art. 226" were mentioned in  the said order through inadvertence.  What was meant was that as the arbitration proceedings were still pending and the board of  arbitrators  had yet to adjudicate on the  rest  of  the reference,  the  disputes between the parties could  not  be said  to have been finally disposed of, and that  therefore, the   said  Part  I  award  was  an   interlocutory   order. Consequently,  neither that award nor the  order  dismissing the  writ  petition  against that award was  a  final  order within  the meaning of Art. 133(1).  This appeal  challenges the correctness of this order.      The  only question arising in this appeal,  is  whether the  High Court’s order dated November 25,  1968  dismissing the  writ  petition is a final order within the  meaning  of Art.  133(1).   There  is no dispute that  the  question  of dearness  allowance along with several other questions  was, by   agreement   between  the  parties,  referred   to   the arbitration of respondents 1 to 3 as provided by  s.   10-A of the Act and that a copy thereof was published in the 755 Government Gazette as required by sub-s. 3 of that  section. There is similarly no dispute that the -arbitrators, instead of  determining all the disputes at one time, first took  up the question of’ dearness allowance, deciding to take up the rest  of the disputes at a subsequent stage and  gave  their award calling it Part 1, Award.  Under sub-s. 4 of S.  10-A, the arbitrators submitted the said Part I Award duly  signed by- all of them to the Government.  As required by s. 17(1),

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the  said  Part  I  Award  was.  published  in  the   manner prescribed  therefore by the State Government and  thereupon under  S. 17(2) it became final and could’ not be called  in question  by any court in any manner whatsoever.   Under  S. 17A(1),  the  award became enforceable on the expiry  of  30 days  from  the date of its publication under S.  17-in  the present  case, as from May 15, 1965.  Therefore, so  far  as the  question of dearness allowance, among  other  disputes, was concerned, Part I Award became final and binding on  the parties   and  nothing  further  remained  to  be  done   or determined in respect of the controversy between the parties on   the  question  of  dearness  allowance.    The   award, therefore,  was not an interlocutory order in the, sense  of any dispute in respect of its subject matter remaining to be finally adjudicated by the arbitrators or the rights of  the parties  in relation thereto remaining pending  any  further determination.  In this sense there can be no doubt that  so far  as the dispute as to dearness allowance was  concerned, the arbitrators by the said Part I Award finally adjudicated it and gave their decision leaving nothing to be adjudicated or decided upon at any subsequent stake of the arbitration.      Quite apart from this consideration, the petition filed by  the appellant-company for a writ of certiorari  and  for quashing  the  said  Part  I Award under  Art.  226  was  ’a proceeding  independent on the dispute between the  parties. Such  a writ proceeding was not an interlocutory  proceeding nor  was  the  order dismissing it  an  interlocutory  order leaving  any  question  raised in the writ  petition  to  be determined  at  any  later  stage.   Once  the  High   Court dismissed  the  writ petition, the controversy  between  the parties raised therein was finally determined and  therefore came  to  an end.  In Ramesh v. Seth Gendalal(1)  a  similar question arose for consideration and this Court held that  a writ petition under Art. 226 is a civil proceeding of a High Court,  that such a proceeding is quite independent  of  the original controversy between the parties and that a decision in  exercise  of jurisdiction under  that  article,  whether interfering with the proceedings impugned or declining to do ’so,  is  a final decision in so far as the  High  Court  is concerned,  if  the effect is to terminate  the  controversy before it and the order must in that case be (1)  [1966] 3 S.C.R. 198. 756 regarded  as  final  for the purpose of  an  appeal  to  the Supreme Court. (See also Mohanlal Maganlal Thacker v.  State of Gjarat(1).      It  is  clear that the effect of the dismissal  of  the writ  petition  by the High Court was that the said  Part  I Award,  subject to any appeal to this Court, was not  liable to  be  questioned  on  the grounds  alleged  in  that  writ petition and the appellant-company would be bound to pay  to its workmen dearness allowance at the rates provided in that award.   The  controversy between the parties  on  questions raised  in  the  writ petition was  finally  determined  and brought to an end as a result of the order of dismissal.  In view of the decision in Ramesh v. Seth Gendalal(2) the  High Court must be said to be in error in holding that its  order dismissing  the writ petition was not a final  order  within the  meaning of Art. 133(1) and that no  appeal,  therefore, lay therefrom to this Court.       The  appeal  succeeds.  The High Court’s  order  dated November 25, 1968 is set aside and the case is sent back  to the High Court for disposal in accordance with law.  In  the circumstances  of  the  case there will be no  order  as  to costs.   The  Special Leave Petition No. 148 of  1969  filed

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against the High Court’s judgment and order dated April  10, 1968  dismissing  the said writ petition is  allowed  to  be withdrawn.  Stay granted by this Court will continue for ten days from today. G.C.             Appeal allowed. (1) [1968] 2. S.C.R. 685. (2) [1966] 3 S.C.R. 198. 757