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Judgment
K. Venkataswami, J.—The question that has been referred to the Full Bench for its decision is whether non-publication of an arbitration
agreement as required u/s 10A(3) of the Industrial Disputes Act, 1947, hereinafter called ''the Act'' and the non-publication of the eventual award
as required u/s 17A of the Act is fatal to the award and therefore not enforceable.
In all these cases; it is common ground that the arbitration agreement itself has not been published as required u/s 10A(3) of the Act. In addition
to that, it is also the common case that the eventual awards had also not been published.
Mr. Vijayanarayanan and Mr. M. R. Narayanaswami appearing in these cases advanced argument requesting the Court to hold that non-
publication of the arbitration agreement and the award being fatal to the award it cannot be enforced.
On the other hand, Mr. G. Venkataraman of M/s. Iyer and Dolia and Mr. N. G. R. Prasad of M/s. Row and Reddy contended that the non-
publication of the arbitration agreement and the award will not render the award void and unenforceable. The requirement of publication according
to them is only directory and not mandatory.
The counsel on both sides cited various decisions in support of their respective stands. Before expressing our opinion, we consider that it will be
beneficial to note down the principles laid down in the decisions cited at the Bar.
The first decision cited is reported in Ramakrishna Kulwantrai Steels (P) Ltd v. Their Workmen 1977 I LLJ 382 . A Full Bench of this Court
was concerned in that case with a question as to the maintainability or writ petition under Article 226 of the Constitution of India. The argument
and the counter-argument advanced before the Full Bench can be advantageously set out to appreciate the decision rendered by the Full Bench in
that Case. It reads as follows (p 385) :
It was contended by the learned counsel for the petitioner that the terms of settlement amounted only to an agreement to refer the dispute to
arbitration within the meaning of S. 10A. Per contra, the learned counsel for the respondents contended that the parties did not deliberately want to
avail themselves of the statutory arbitration under S. 10A but agreed to refer the matter to informal arbitration outside S. 10A and this is clear from
the fact that the agreement was not in the form prescribed nor the procedure prescribed under S. 10A was followed. We are unable to agree with
the contention of the learned counsel for the respondents. The dispute between the parties related to the payment of bonus and, therefore, it is an
industrial dispute. An industrial dispute could be resolved under the Act by a settlement in the course of conciliation proceedings under S. 12(3) or
by a settlement arrived at by agreement between the parties otherwise than in the course of conciliation proceedings or by adjudication on a
reference under S. 10 or by arbitration by referring the dispute to an arbitrator as provided under S. 10A.
In the above background, it was argued before the Full Bench that the arbitration agreement entered into was one outside the purview of section
10A and therefore the award ultimately given in that case was not amenable to the writ jurisdiction. In negativing the contention, the Full Bench
observed thus (p 386) :
It is thus seen that the memorandum signed on 28-7-1976 complied with all the requirement of S. 10A(1) and (2) of the Act. We are also of the
view that an agreement entered into during conciliation proceedings between the management and the workers union regarding an industrial dispute
is an agreement, to refer the dispute to arbitration under S. 10A for the Act does not contemplate arbitration of an industrial dispute outside S.
10A. In the face of S. 10A(5) excluding the application of Arbitration Act, 1940 to arbitrations u/s 10A, it would be very doubtful whether private
agreement in respect of industrial disputes contracting out of the statutory provisions of S. 10A would be permissible at all in law.
Ultimately, the Full Bench held that as the arbitration agreement was one u/s 10A, the award made thereunder was clearly amenable to correction
under Article 226 of the Constitution of India.
The next decision cited is reported in Madras Machine Tools Mfres. Vs. Spl. Dy. Commissioner of Labour and Another, . A Division Bench of
this Court, to which one of us was a party (the Honourable the Offg. Chief Justice), while considering the question whether non-compliance with
the provisions of Section 10A(3A) of the Act would render the award invalid, it was held that the requirement u/s 10A(3A) of the Act is
mandatory, and consequently on the non-compliance of the same the award would become invalid. Before the Division Bench, the Full Bench
judgment referred to above Ramakrishna Kulwantrai Steels (P) Ltd v. Their workmen (supra) was pressed into service in support of the argument
that the requirement of Section 10A(3A) of the Act is not mandatory but only directory. The Division Bench, however distinguished the decision of
the Full Bench by holding thus (p 335) :
We may at once sate that the question that arose before the Full Bench was whether an arbitration award rendered u/s 10A of the Act would be
amenable to writ Jurisdiction. Nevertheless, the effect of non-compliance of Section 10A(3) came to be considered as seen from the above extract
and the Full Bench seems to suggest that the non-compliance of Section 10A(3) could not render the arbitration agreement invalid. Bound, as we
are by the Full Bench, we will have to limit the scope of the judgment only to the stage of agreement and cannot extend it beyond its frontiers, in
other words, to domain award"".
A Division Bench of Madhya Pradesh High Court in a decision reported in I.T.C. Ltd. Vs. Govt. of Karnataka and Others, had occasion to
consider the scope of Section 10A(3) of the Act. The Division Bench held that the time for publication given in Section 10A(3) of the Act is merely
directory but the agreement has to be published before the award is given. This Division Bench has noticed the judgments of Full Bench as well as
the Division Bench referred to above.
In The Special Officer of The Management of T.U.C.S. Ltd., Madras-5 Vs. S. Loganathan and D. Nampillai, , another Division Bench of this
Court had occasion to consider the question whether non-publication of the award of the arbitrator vitiates the award. Nainar Sundaram, J.
speaking for the Bench while explaining the dictum of the Full Bench decision reported in Ramakrishna Kulwantrai Steels (P) Ltd v. Their
workmen (supra) has observed ass follows (p. 229) :
It is the categorical opinion of the Full Bench that if the terms of the settlement did not settle the dispute as such, and there was only an agreement
to refer the matter to arbitration, such an agreement must only be held to be agreement to refer the dispute to arbitration u/s 10A of the Act. It is
not disputed before us by the learned counsel for the first respondent that the agreement in the present cases, substantially complies with all the
requirements of Sections 10A(1) & (2) of the Act. In the Full Bench case also substantial complies with the requirements was noted in respect of
that agreement. In our view, the Full Bench ratio provides answer for the first contention put forth by the learned counsel for the first respondent"".
Regarding the non-compliance of section 10A of the Act, the Division Bench has held as follows (p. 230) :
We find that the learned Judge has granted reliefs only so far as the two petitioners are concerned and in the instant case, admittedly, the relevant
requirements of Section 10A and Section 11A of the Act have not been complied with and the learned Judge has remitted the matter back to the
file of the second respondent for him to dispose of the matter afresh and in accordance with law. It is needless to state that the second respondent
will endeavour to rectify and direct the parties also, if necessary, to rectify the lacunae with regard to the compliance of the requirements of Section
10A of the Act.
In Remington Rand of India Ltd v. Their Workmen 1967 II LLJ 886 the Supreme Court has held that a provision as to time in Section 17(1) is
merely directory and not mandatory. The Supreme Court further held that it the award becomes invalid merely on the ground of publication after
thirty days it may entail reference with needless harassment to the parties.
In the backdrop of the case law cited before us we have to consider the question referred to us. We may at once state that we feel it
unnecessary to express any opinion on the section one part of the question, for, it we answer the first question in the affirmative, the second
question need not be answered in view of the fact that in all these cases, the arbitration agreement itself has not been published. Likewise, the
question whether the time prescribed for publication of agreement or the award, as the case may be, is mandatory or directory also does not arise
in these cases.
After perusing the provisions of sections 10A, 17, and 17A of the Act and also Rules 26 and 27A of the Tamilnadu Industrial Disputes Rules,
1958 read with Form D, we are of the view that the publication of the arbitration agreement as required u/s 10A(3) of the Act is mandatory and
non-compliance of the same will vitiate the award that might ultimately be passed. The Section 10A(3) and (3A) of the Act are set out below to
appreciate our reasoning :
10A (3). A copy of the arbitration agreement shall be forwarded to the appropriate Government and the conciliation officer and the appropriate
Government shall, within (one month) from the date of the receipt of such copy, publish the same in the Official Gazette.
(3A) Where an industrial dispute has been referred to arbitration and the appropriate Government is satisfied that the persons making the reference
represent the majority of each party, the appropriate Government may, within the time referred to in sub-section (3), issue a notification in such
manner as may be prescribed; and when any such notification is issued, the employers and workmen who are not parties to the arbitration
agreement but are concerned in the dispute, shall be give an opportunity of presenting their case before the arbitrator arbitrators
In as much as the award that might be passed will be binding on all the parties including those who are not parties to the arbitration agreement, it is
necessary to publish the arbitration agreement so that if there are any persons who are not parties to the arbitration agreement they can come
before the arbitrator to represent their case and this will be possible only if the arbitration agreement is published as contemplated u/s 10A(3) of
the Act. The Madhya Pradesh High Court in the decision reported in Aftab-e-Jadid v. Bhopal S. P. Sangh (supra) held as follows (p 275) :
On a true construction of the Section, it is clear that although the first condition as regards the publication of an agreement in the Official Gazette is
obligatory i.e., a sine que non, the other requirement, namely, of its notification within one month from its receipt, is only directory and not
imperative. The same is the view taken in Landra Engineering and Foundry Works v. Punjab State 1969 L I C 52 and in Mineral Industry
Association v. Union of India 1971 L I C 837 .
Reliance was placed on a decision of the Supreme Court in The Remington Rand of India Ltd. Vs. The Workmen, that the provision contained in
S. 17(1) of the Industrial Disputes Act, 1947 regarding publication of award within thirty days is directory and if the publication is beyond the fixed
time, the award is not invalid. However, it appears that the Full Bench of the Madras High Court in R. K. Steels v. Their workmen 1977 I LLJ
382 has held that non publication of the agreement u/s 10A(3) would not invalidate the arbitration agreement but a Division Bench of that Court in
Madras M. T. Manufacturers v. Spl. Dy. Labour Comer. 1980 (1) LIC 329 explained the Full Bench decision by saying that it referred to the
arbitration agreement and not to the award but non-publication of the agreement and the award would invalidate the award. However, another
Division Bench of this Court in Singh (K.P.) and Another Vs. Gokhale (S.K.) and Another, has held that the procedure prescribed u/s 10A(3) is
mandatory. In that case, neither the arbitration agreement was published nor the award.
The other two Division Bench Judgment of this Court relate to the non-publication of the award and therefore not directly on the point regarding
non-compliance of Section 10A(3) concerning the arbitration agreement. The learned counsel who argued that non-publication of the arbitration
agreement will not vitiate the award wanted to rely on an observation of the Full Bench decision reported in Ramakrishna Kulwantrai Steels (p)
Ltd v. Their workmen (supra). The Full Bench while negativing the argument that the agreement in question was one outside the scope of Section
10A of the Act and therefore, a writ was not maintainable incidentally observed as follows (p 336) :
If once that is done, there is a valid arbitration agreement and non-compliance with the other provisions of Section 10A or any other provision in
the Act relating to publication of the award will not invalidate or take the arbitration agreement itself outside the purview of Section 10A.
We cannot read the above extracted portions in the Full Bench Judgment dehors the context and facts of the case. This full Bench judgment has
been referred to and explained by the two subsequent Division Bench judgments in the decisions reported in :
i) Madras Machine Tools v. Spl
Dy. Commr of Labour (supra)
and
ii) Management of TUCS Ltd
v. Commr of Labour (supra)
We would also like to add that the Full Bench was not concerned with the question whether the non-compliance of Section 10A(3) of the Act is
mandatory or not. The Full Bench was concerned only with the nature of the agreement with reference to the jurisdiction of this Court under Article
226 of the Constitution of India. We are of the view that the passage extracted above cannot be considered to mean that the Full Bench has held
that the non-compliance of Section 10A(3) of the Act is not fatal to the award to be passed pursuant to the arbitration agreement. The proposition
laid down by the Full Bench was to the effect that notwithstanding the non-compliance of the requirements of Section 10A of the Act any
arbitration agreement entered into would still be an agreement u/s 10A of the Act and the matters arising out of such agreement can be considered
in proceedings under Article 226 of the Constitution of India.
The reliance placed by Mr. N. G. R. Prasad on the judgment of the Supreme Court in Remington Rand of India Ltd v. Their workmen (supra)
will be of no assistance as the point decided therein is not regarding the consequence of non-publication of arbitration of agreement as required u/s
10A(3) of the Act.
For the foregoing reasons, we hold that the non-publication of the arbitration agreement vitiates the award and the publication of the arbitration
agreement as required u/s 10A(3) of the Act mandatory.