Estates Staff Union of South India vs Commissioner of Labour and Another

P. Ramakrishnan, J.—In this case the petitioner is the Estates Staff Union of South India, represented by its deputy general secretary. Respondent 1 is the Commissioner of Labour and respondent 2 is the Anglo-American Direct Tea Trading Company, Ltd., represented by its manager, Valparai post. Respondent 2 terminated the services of one Abraham, an employee in an estate belonging to respondent 2, after finding that he had not improved in his work in spite of warnings. A dispute arose between the union and the management over the termination of Abraham''s services and the labour officer made an attempt at conciliation u/s 12(3) of the Industrial Disputes Act. A settlement was arrived at, at the instance of the labour officer, and according to the terms of the settlement between the petitioner-union and respondent 2 management, both the parties agreed to leave the issue of Abraham''s termination of services to be decided in arbitration by the Commissioner of Labour, Madras, respondent 1, and to compute the relief if any which he would be entitled to. Respondent 1 came to the conclusion that Abraham''s services were properly terminated and granted him relief by directing the payment of an amount ex gratia. The petitioner, aggrieved against the above award of the arbitrator, has filed this petition under Article 226 of the Constitution for the issue of a writ of certiorari Respondent 2, in the counter-affidavit, has alleged that this award of the arbitrator is not the award of a statutory arbitrator u/s 10A of the Industrial Disputes Act as none of the formalities which that section requires have been complied with. The respondents also contended that if the award is viewed as a settlement u/s 12(3) of the Act, the award becomes merged in the settlement and it is binding on both parties and cannot be reopened in writ proceedings. It is also mentioned in the counter-affidavit that the petitioner had filed a suit, Original Suit No. 40 of 1966 before the District Munsif, Udamal-pet, u/s 14(2) of the Indian Arbitration Act for filing the decision of the arbitrator in Court and for subsequent relief of setting aside the award. The learned District Munsif appears to have dismissed this suit.

The main ground on which the petitioner has sought relief in this writ petition is that the arbitrator had not given any reason for his award and that he failed to give an opportunity to the petitioner to prove its case by letting in oral evidence.

It appears to me that respondent 2 in its preliminary objection to the maintainability of the writ petition is on strong ground which is well-supported by authority. It has taken the stand that, that the award of the arbitrator appointed u/s 10A of the Industrial Disputes Act (etc). The learned Counsel for the petitioner has not disputed the correctness of this legal position. What will follow from this is that the arbitrator is a private arbitrator. Though he has an official status as Commissioner of Labour, he was not a statutory arbitrator under the Industrial Disputes Act. The classical decision dealing with this point is that of Lord Goddard, C.J., in 1963 Q.B. 704, where, in forcible language the learned Judge stated:

never during the many centuries that have passed since reports of the decisions of English Courts first began, is there any trace of an arbitrator being controlled by this Court either by writ of prohibition or certiorari, and

there is no instance in the books 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.

In The Engineering Mazdoor Sabha Representing Workmen Employed Under the Hind Cycles Ltd. and Another Vs. The Hind Cycles Ltd., Bombay, the Supreme Court observed at p. 767:

...Against an award made by a private arbitrator, no writ can issue under Article 226, much less can an appeal lie under Article 136....

At p. 768 it observed:

...even if the arbitrator appointed u/s 10A is not a tribunal under Article 136 in a proper case, a writ may lie against his award under Article 226 ....

But, as already mentioned, the present award does not come within the scope of Section 10A and does not therefore enable the aggrieved party to seek remedy under Article 226 of the Constitution of India. It is the award of a private arbitrator in the full sense of the term.

There is one unreported decision of this Court by Venkatadri, J., in Writ Petition No. 159 of 1964 where the learned Judge observed after referring to Engineering Mazdoor Sabha and Ors. v. Hind Cycles, Ltd. and Ors. 1962-II L.L.J. 760.

Their lordships held that Article 326 can be applied to en award of an arbitrator, though he was appointed u/s 10A of the industrial Disputes Act; the same principle can be applied also even to a private arbitrator.

With due respect to the learned Judge a careful perusal of the judgment of the Supreme Court shows that the learned Judges of the Supreme Court were not prepared to extend the right which a party aggrieved by an award u/s 10A. may have in a proper case, to seek remedy by a writ petition under Article 223 to a party who is aggrieved by an award which is in sum and substance only the award of a private arbitrator. In fact, that judgment, at p. 767, has quoted with approval Lord Goddard, C.J.''s remarks in 1953 Q.B. 704, I am therefore of the opinion that the award in this case is only that of a private arbitrator, that It is not the result of a statutory arbitration and that it cannot also be viewed as an award of an arbitrator u/s 10A. For the above reasons, applying the well-known principles mentioned above, the remedy by way of a writ petition under Article 226 of the Constitution will not be available to the aggrieved party. The writ petition is therefore dismissed. There will be no order as to costs.