I S.C.R.

SUPREME COURT REPORTS 625

THE ENGINEERING MAZDOOR SABHA 1962

REPRESENTING WORKMEN EMPLOYED Octolllr, 18

UNDER THE HIND CYCLES LTD. AND

ANOTHER
v.
THE HIND CYCLES LTD., BOMBAY
(And Connected Appeal)
(B. P. SINHA, c. J., P. B. GAJENDRAGADKAR,
K. N. WANCHOO, K. C. DAfl GUPTA and
J. c. SHAH, JJ.)
Industrial Dispute-Reference to arbitration by "!l"'ement
of parties-Arbitration award--Appeal by special leave-Compe-
tence-Industrial Disputes Act, 1947( 14 of 1947). ss. 10,IOA,18--
0onstitution of India, Art. 136.
The dispute between the respondent company and its
workmen was voluntarily referred to arbitration by their agree-
ment dated December 3, 1959, under s. JOA of the Industrial
Disputes Act, 1947. Section IOA(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 arbi-
tration of the persons tu be named in the form. Section 18(2)
provided that the arbitration award shall be binding on the par-
ties to the agreement. The arbitrator named by the parties
entered upon the reference on December 14, 1959, and pro-
nounced his award on April 8, 1960. The appellants seeking to
challenge the validity of the award applied for and obtained
special leave to appeaJ to the Supreme Court against the deci-
sion of the arbitrator. The respondent pleaded that the appeal
was not competent because the arbitrator was not a tribunal
under Art. l 36 of the Constitution of India.
HeU, that the decision of an arbitrator to 'vhom indus-
trial disputes are voluntarily referred under s. lOA of the Indus-
trial Disputes /\ct, 1947, is quasi-judicial in character and
amounts t.o a dete~mination or or_der under Art. 136(1) of the
Constltut1on of India, but the arbitrator is not a tribunal with-
in the meaning of that Article because the State has not invest-
ed hhn with_ its inherent judicial _power and the power of adju-
d1cat10n which he exercises is denved by him from the agreement
of the parties. Consequently, an appeal against the decision of
an arbitrator under s. JOA of the Act does not lie under Art. 136
of the Constitution.
 626 SUPREME COURT REPORTS (1963] SUPP.
1962 Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank
l11g:~ng Ma;:door
Ltd., Delhi, [1950] S.C.R. 459, Province of Bombayv. Ku.salda.
Sabha 8. Advani & Others, [1950] S. C.R. 621 and Durga 8hankar
v. Mehta v. 1'hakur Raghuraj Singh, [1955] l S. C.R. 267, relied
Hind C.vcles ltd., on,
Bombay
8emblc, Art. 22G 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 require-
ment that the said writs can be issued only against the orders of
courts or tribunals.
CrvIL APPELLATE 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.
.;\ppeal by special leave from the Award dated
August 27, 1961, of the Arbitrator, Coimbatore.
K. T. Sule and K. R. Ohvudhri, for the appel-
lants (in G.A. Nos. 182 and 183 of 1962).
0. K. Daphtary, SoUcitor-General of India,
S. K. Bose and Sardar Bahadur, for the respondent
(in C. A. Nos. 182 and 183of1962).
G. B~ Pai, J.B. Dadaclumji, 0. 0. Mathur and
Ravinder Narain, for the appellant (in C.A. No. 204
of 1962).
A. 8. R. Ohriri, JY!. K. Ramamurthi, R. K. Garg,
D. P. Singh and 8. 0. Agarwala, for the respondents
(in C. A. No. 204 of 1962).
1962. October 18. The Judgment of the Court
was delivered by
Gajlndragadkar, J, GAJENDRAGADKAR, 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 compe-
tence. Civil Appeals Nos. 182 and 183/1962 have
1 S.0.R. SUPREME COURT REPORTS 627
been filed against the award pronounced by l96f
Mr. D.V. Vyas on April 8, 1960, in a dispute between EngiTl(ering Mar..doo
the appellants, the Engineering Mazdoor Sabha & Sob.ha
v.
another, and the respondent The Hind Cycles Limited, Hind Cycles Ltd.,
Bombay. This dispute was voluntarily referred to Bombay
Mr. Vyas under s. IOA of the Industrial Disputes Gajendragadkar, J,
Act, 1947 (No. 14 of 1947) (hereinafter called the
Act), by the parties by their agreell)ent .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 respon-
dent 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 Trad-
ing Co. Ltd., against the respondents, its workmen,
and by its appeal, the appellant seeks to challenge the
validity and the correctness of the a ward pronounced
by Dr. T. V. Sivanandam to whom the dispute bet-
ween the parties was voluntarily referred under s. IOA
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 Tribu-
nal 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 SUPREME COURT REPORTS [1963] SUPP.
1962 order in any cause or matter passed or made by any
i'!ngine1;ing Mazdoor
court or tribunal in the territory of India. Sub-arti-
Sabha cle (2) excludes from the scope of sub-Art. (1) any
v. judgment, determination, sentence or order passed or
Hind 0_.,e/~J Ltd.,
Bombay made by any court or tribunal constituted by or under
Gajendr9gudkar, J.
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 cons-
trued. 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 in-
voked only against final orders, no such limitation is
imposed by Art. 136( 1). In other words, the appel-
late jurisdiction of this Court under this latter provi-
sion 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 conditions must
be satisfied. The proposed appeal must be from any
1 S.C.R. SUPREME COURT REPORTS 629
judgment, decree, determination, sentence or order, 1962
that is to say, it must not be against a purely exec- Entiam~Mw/MI
utive or administrative order. If the determination v.
or order giving rise to the appeal is a judicial or Hi.J Cnlu LU.,
quasi-judicial determination or order, the first condi- s...,,.,
tion ls 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 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 occa-
sions. 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
themjudicially 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 deci-
sions in several matters in a purely administrative or
executive manner 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
:iutho~ities may have to act quasi-judicially in deal-
ing with some matters entrusted to their jurisdiction.
Where an authority is required to act judicially either
(I) [l~l I. C.R. 6.'ZI.
 630 SUPREME COURT REPORTS [1963) SUPP.
1962 by an express provision of the statute under which it
E11gineeri_ng M<Wloor acts or by necessary implication of the .said statute,
Sabha the decisions ofsuch an authority generally amount
v.
Hind Cycles. Ltd., to quasi-judicial decisions. Where, however, the
Bombay executive or administrative bodies are not required to
Gajendragadka1, J ~ act judicially and are competent to deal with Issues
referred to them administratively, their conciusions
cannot be treated as quasi-judicial conclusions. No
doubt, even while acting administratively, the autho-
rities 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 volun-
tarily referred under s. lOA of the Act are quasi-judi-
cial decisions and they amount to a determination or
order under Art. 136 (1). This position is not seri-
ously disputed before us. What is in dispute between
the parties is not th.e 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 contra-

distinction 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 disfmguished from the Court, exer-
cis-:s 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
1 S.C.R. SUPREME COURT REPORTS 631

instance, or instituted by an industrial employer can- 1962

not claim to be a Tribunal under Art. 136(1). Purely Engin tering Ma
administrative Tribunal~ are also outside the scope ,\obha
v.
of the said Article. The Tribunals which are con- Hind Cy&les Ltd.,
templated by· Art. 136(1) are clothed with some of Bombay
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 objec-
tive manner and they cannot proceed purely adminis-
tratively or base their conclu>ions 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 autho-
rity is clothed with the trappings of a court.
In Shell Company of Australia, Ltd. v. Federal
Commissioner of Taxation ('), 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
(I) [1931] A. C. 275.
 632 SUPREME COURT REPORTS [1963] SUPP.
1962
the nature of administrative machinery to which the
Jiginuring M~door taxpayer can resort at his option in order to have his
•.
Sabha

Hind Cycles Ltd.,

contentions reconsidered. He then added that an
administrative tribunal may Act judicially, but still
Bombay remain an administrative tribunal as distinguished
-Gajmdragadkar, J, from a Court, strictly so-called. JYiere 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 rnal
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 Tribu-
nal a Court. It is in this context that the picture-
sque 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. Empwyees 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 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,
(l) [1950] s. o. I\. ~5~.
 l S.C.R. SUPREME COUR'F REPORTS 633
it is nevertheless a Tribunal for the purposes - 1962
of Art. 136. In GJther words; the majority decision Enginttrint Mazdo
which, in a sense, was epoch making, held that the Sabha
appellate.jurisdiction of this Court under Art. 136 ~-
Hind G_pcles Ltd.•
can be invoked ·in proper cases against awards and Bombay
other orders made by Industrial Tribunals under the Gafendragadkar, J
Act. In discussing the. question as to -charncter of
the Industrial Tiibunal functioning under<tlie 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 \vhich are found invested
with certain functions pf a Court of Justice and have
some of its trappings also would. fall within the ambit
of Art. 136 and would be ,;nbject 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 noti<'.ed that apart from the importance
of the trappings of n Court, the basic and essential con-
dition which makes an authority or a body a tribunal
under Art. 136, is that it should be constituted by the
State and sho1ild 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
l:iy the Industrial Tribunals are subject to the appel-
late jurisdiction of this Coilrt tinder Art. 136.

In Diirga Shankw- Ji ehth v. Thal"'1.lr Ra.ghuraj

Singh('), Mukherjea, J., who delivered the unanim-
ous opinion of. the Court observed that it was well
settled by the majo,rity decision of this Court
m the case of Bhumt Br111l:. Ltd. (') that the
expressjon "Tribunal" as used. in Art. 136
does not .mean the s~me thmg a• "Court"

l)) [1955] I S.C.R. 267.

. .
but includes, within its ambit, all aajudicating bodies,
(2) [1950] S..0 Ji. 459.
 634 SUPRE.ME· COURT REPORTS [1963]SUPP.
1962 provided th~y are constituted by the State and are
~nginuring Mat..dOOT invested with judicial as distinguished frotti purely
Sabha administrative or executive functions. Thus, there
v.
I Hind Cytlts l~d., can be no doubt that.the test ~hich has to be applied
I Bumbay in determining the character of an adjudicating body
IGajendragadko.1, J. is whether the said body has been invested· by the
State with its inherent judicial power. T]:iis test
implies that the adjudicating body should be consti-
tuted by the State and should be invested with the
State's judicial power which it is authorised to exer-
cise. The same principle has been reiterated in
Harinagar Sugar Mills Ltd. v. Shy(l>m Sunder .Thun-
jhunwala (').
It is nO';V necessary to examme the scheme of
the relevant provisions of the Act bearing on the
voluntary reference to the arbitrator, the· powers of
tlle said arbitra,tor and the procedure which he is
required to follow. Section IOA under which volun-
tary reference has been made in both the cases was
added to 'the Act by Act 36 of 1956. It reads as
under :-·
"IOA. (I) Where any industrial dispute exists
or is.apprehended and the employer and the
workmen· agree to refer the dispute. to
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 arbitratioh and the
reference shall b.e. to such- person or persons
(including the presiding officer of a Labour
Court or Trib\mal or National T~ibunal)
as· an .arbitrator or arbitrators ·as may be.
specified iq the arbitration agreement.
(2) ~n arbitration agreement referred
to in sub-section ( 1) shall be in such "form
and s]lal! bh si&Ued by the parties thereto
in sq9hmanner,as may be p~esi::ribed.
(1)'[196'i!J 2 .S._C-1t· $39.
•.
1 S.C.R. SUPREME COURT REPORTS 635

(3) A copy of the arbitration agree- 1962

ment shall be forwarded to the appropriate Engineering Mazdnor
Government and the conciliation officer Sabha
y,
and the appropriate Government shall, Hind Cycles Ltd.,
within fourteen days from the date of the Bombay
receipt of such copy, publish the same in Gajendragadka,_. Ji
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,
UJ40. shall apply to arbitrations und<'r 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 wotds "it includes an arbitra-
tion award made under section JOA". In other
word~, a~ 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,
17 A, 18(2), 19 (3), 21, 29, 30, 33C and 36A
to the arbitration award. Under s. 17 (2), an arbi-
tration award when published under s. 17 (1), shall
be final and shall not be called in question by any
C6urt in any manner whatsoever. Section 17A pro-
vides that the arbitration agreemmt shall become en-
forceable on tlte expiry of thirty days from the date
of its publication under s. 17, and under s. 18(2), it
is binding on the parties to the agreement who refer-
red 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 SUPREME COURTREPORTS[l963] SUPP.
1962
other period as it thinks fit; provided further that the
Enc nmin Ma, door said period may also be extended as prescribed
s:~ha under the said proviso. The other sub-sections of
Hind Cycles Ltd., s. 19 would also apply to the arbitration award. Sec·
Bombay tion 21 which reqmres certain matters to be kept con-
G'afmtirai•d!rar, 1. fidential is applicable and so section 30 which provid-
es for a penalty for the contravention of s. 21, also
applies. Section 29 which I?rovides for penalty for
breach of an award can be mvoked 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 invok·
ed for the interpretation of any provision of the arbi-
tration 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 arbi-
tration award.

On the other hand, there are certain provisions

which do not apply to an arbitration award. Sec-
tions 23 & 24 which prohibit strikes and lock-outs, are
inapplicable to the proceedings before the arbitrator
to whom a reference is made under s. lOA, 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
proce~dings before the Industrial Tribunals or Labour
Courts. Section 20, which deals with the commence·
ment and conclusion of proceedings, provides, intu
alia, by sub-s. (3) that proceedings before an arbitra·
tor under s. lOA shall be deemed to have commenc·
ed 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. 17 A. It would be noticed
that just as in the case of proceedings before the In-
dustrial Tribunal commencement of the proceedings
is marked by the reference under s. 10, so the com-
mencement of the proceedings before the arbitrator
I s.o.R. SUPREME COURT REPORTS 637
1912
is marked by the reference made by the parties them-
selves, and that means the commencement of the E'nginttring Mazdo,
Sabha
proceedings takes place even before the appropriate v.
Government has entered on the scene and has taken HindC,yc/eslli.
any action in pursuance of the provisions of s. 1OA. Bomho-v
GajeniragUkicr,J
Rules have been framed by the Central Govern-
ment 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 e,c pr~rte, if
ncces,,ary, 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 & 18
to 28) seem to make a distinction between an arbitra-
tor and the other authorities under the Act, whereas
th~ 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 rele-
vant 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 a~ a result of
the reference made to him under s. lOA.
The learned Solicitor-General contends that
such au arbitrator is no more and no better l han 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 judicial-
ly, has to follow a fair procedure, take evidence,
hear the parties and come to his conclusion in the
light of the evidence adducer! before him; and that is
all that the arbitrator to whom reference is made
under s. lOA does. It may be that the arbitration
award is treated as an award for certain purposes
 638 SUPREME COURT REPORtS [1963]SUPP.
1962 under the Act; but the position, in law, still remains
ngi11eering .i.\1azdoo1 that it is an award made by an arbitrator appointed
Sabha by the parties. Just as an award made by a private
v.
Hind Cycles Ltd., arbitrator becomes a decree subject to the provisions
Bombay of ss. 15, 16, 17 and 30 of the Arbitration Act, and
1~iendrogadlcar 1 J. thus binds the parties, so does an award of the arbi-
trator under s. lOA 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. IOA is
no different. In support of this argument, he has
relied on the decision in ll. V. D·isputes Committee of
the Nationnl Joint Coundil for the Graft of Dental
'fechnicians('). On a motion for an order of cert.io-
rari to quash an order made by the Disputes Com-
mittee, Lord Goddard, C, J., held that the Court has
no power to direct the issu~ 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 prohi-
bition 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. lOA, he cannot be treated as a statutorv
arbitrator, because the parties are not compelled to g~
to any person named as such by the statute. Tht:
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. lOA give~ statutory
recognition to the appointment of the arbitrator and
(I) [1953] l All. E. R. 327.
1 s.c.R. SUPREME COURT REPORTS 6~9

the consequential changes made in the Act and the 1962

statutory rules framed thereunder clearly show that Engineering Mu;;daor
he has been clothed with quasi-judicial powers and Sabha
v.
his proceedings are regulated by rules of procedure. Hi"d Cyct.. Ltd.,
Therefore, it would be appropriate to treat him as a Bomb•y
statutory arbitrator and as such, a writ of certiorari Gajendrattit/Aar, J.
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.
liJ/iectricity Commissioners Ex-parte London Electri-
ut.ly Joint Committee Go. (1920) Ltd.(') In that case,
die scheme framed by the Electricity Commissioners
established bys. l of the Electricity (Supply) Act,
!'919, was challenged and it was held that the impu-
gned scheme was ultra vires, and so, a writ of prohi-
bition was issued prohibiting the Commissioners from
proceeding with the further consideration of the
scheire. Dealing with the question as to whether a
Writ can issue against a body like the Electricity
Ci:!ommissioners constituted under the Act, Lord Atkin
referred to the genesis and the history of the writs of
prohibition and certiorari and held that the opera-
tion 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 deter-
mine 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 ccntroll-
irtg jurisdiction of the King's Bench Division exer-
cised in these writs (p. 205). Then Lord Atkin refer-
red"to a large number of previous decisions in which
writs had been issued against different authorities
statutorily entrusted with the discharge of different
duties. To the same effect is the decision in the case
of R. V. Northumherland Compensation Appeal
Tribunal Ex-parte Shaw, (') Vide also Halsbury's
Laws of England 3rd Edn,., Vol. 2, p. 62, and Vol.
11, p. 122. ·
(I) [192i] I K.B.D. 171, (2) (1951] 1 All. E.R. 268,
 640 SUPREME COURT REPORTS [1963] SUPP.
1962 The argument, therefore, is that against ;;in
Engineering Mazdoor
award pronounced by an arbitrator appointed under
Sabha s. lOA, a writ of certiorari would lie under Art. 226,
v. and so, the arbitrator should be deemed to be a
I/ind Cycles Ltd.,
Bombq'V Tribunal even for the purposes of Art. 136. In our
opinion, this argument is not well-founded. Art. 226
(JnjendragadJ.ar, J. under which a writ of certiorari can be issued in an
appropriate case, is, in a sense, wider than Art. 136,
because the power confctTed 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 pres·
cribed. Therefore even if the arbitrator appomted
under section lOA is nut 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 nut materially assist the appellants'
case that the arbitrator in question is ;1 tribunal under
Art. 136.

It may be conceded that having regard tu several

provisions contained in the Act and the rules framed
thereunder, an arbitrator appointed under s. lOA
cannot be treated to be exactly similar tu a private
arbitrator to whom a dispute has been referred under
an arbitration agreement under the Arbitration Act.
The arbitrator under s. JOA is clothed with certain
powers, his procedure is regulated by certain rules
and the award pronounced by him is given by statu-
tory provisions a certain validity and a binding
character for a specillcd period. Having regard to
these provisions, it may perhaps be possible to des-
cribe such an arbitrator, as in a loose sense, a statu-
tory arbitrator and to that extent, the argument of
the learned Solicitor General may be rejected. But
h fact that the arbilrator under s. JOA is not exactly
1 S.O.R. SUPREME COURT REPORTS 641
11162
in the same position as a private ,arbitrator does not
mean that he is a tribunal under Art. 136. Even if E•tin~U., M11:i..,
some of the trappings of a Court are present in his ...
.l'#A•
case, he lacks the basic, the essential and the funda- Hiai C.11111 Lti.
mmtal requisite in that behalf because he is not B,,,.q,
invested with the State's inherent judicial power. As C.faompikor, 1.
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 agl'Cement of the parties and from no other
source. The fact that his appointment once ma~e
by the parties is recognised by s. lOA and after hts
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 determin-
ing the question about the character of an adjudicat-
ing bod¥ js not satisfied. He is not a Tribunal
because the State has not invested him with its
inherent judicial power and the power of adjudica-
tion which he exercises is derived by him from tlte
agreement of the parties. His position, thus, may be
said ro 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 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 thiak
the argument strenuously urged before us by Mr. Pai
that a writ of certiorari can lie against his award is
of no assistance to tlte appellants when they contend
that such an arbitrator is a Tribunal under Art. 136.
Realising this difficulty, Mr. Sule concentrated
on t~e construction of s. lOA i!8elf and urged that on
a fair and reasonable construction of s. IOA it should
be held that the _arbitr~tor cannot be di;tinguished
from an Industnal Tribunal and is therefore, a
 642 SUPREME COURT REPORTS [1963] SUPP.
1962 Tribunal under Art. 136. In the Bharat Bank
.l:.'nzlne1rin1 Mfl::.door
Ltd.(1) case it. has been held that an Industrial
SabM Tribunal is a tribunal under Art. 136 and the arbitra-
v. tor is no more and no less than an Industrial Tribunal;
Hind Cycles L!d.,
Bombay and so, the present appeals are competent, says
Mr. Sule.
G11jendragadkar, J.
That takes us to the construction of s. lOA.
Section lOA 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. Whrn
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 contends-
and it is no doubt an ingenious argument-that the
last clause of s. lOA 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 Goven1-
ment that steps in and makes the reference to such
named person. The arbitrator or arbitrators are..
(1) (I~] S. 0, ll. c.511,
i. s.Q.lt SUPREME COURT REPORTS 64g

initially named by the parties by consent; but it is 1962

when a reference is made to him or them by the Engineering M4ZdOOT
appropriate Government that the arbitrator or arbitra- Sa&ha
v.
tors is ot are clothed with the authority to adjudicate, Hind Cycles Ltd.,
and so, it is urged that the act of reference which is Bombav
the act of the appropriate Government makes the Gajtndragadkar, J.
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, gramma-
tically 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 possi-
ble to introduce the Government at any stage of the
operation of s. lOA \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) pres-
cribes 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 bys. lOA (2) is exactly similar to the
arbitration agreement; it refers to the dispute, it
names the arbitrator and it binds the parties to
 644 SUPREME COURT REPORTS [1963] stJt>P.
1962 abide by the majority decision of the arbitrators.
'~;-.ginurin.: Mazdoor Thus, it is clear that what s. IOA contemplates is
~'abha
v. carried out by prescribing an appropriate form under
/find Cycles J,td., s. IOA (2).
Bombay
Gajendragadkar, J. 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 Govern-
ment 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 themattcr. Sub-
section (4) provides that the arbitrator shall investi-
gate the dispute and submit his award to the appro·
priate Government; and sub-s. (5) excludes the appli-
cation of the Arbitration Act to the arbitrations
provided for by s. IOA. It is thus clear that when
s. 10A(4) provides· that the arbitrator shall investi-
gate the dispute; it merely asks the arbitrator to
exercise the powers which have been conferred on
him by agreen:ient of the parties under s. IOA(l).
There is no doubt that the appropriate Government
p1ays some part in these arbitration proceedings-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 res·
pect of such an. award, are common to the proceeding$
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
po~er 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 bt taken into consideration
1 S.C.R. SUPREME COURT REPORTS 645
This clause deals with a case where the partie.s 1962
to an industrial dispute apply in the prescribed manner Engi nttring Mazdoo
for a reference of their dispute to an appropriate Sabha
v.
authority, and it provides that the appropriate Govern- HiRd Cycles Ltd.,
ment, if satisfied that the persons applying represent Bombay
the majority of each party, shall make the reference Gajendragadkar, ].
accordingly. In other words, if the parties agree that
a dispute pending between them should be referred
for adjudication, they move the appropriate Govern-
ment, 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 tlw
appropriate Government to refer or not to refer any
industrial dispute for adjudication, under s. !0(2)
if there is an agreement between the parties, the appro-
priate Government has to refer the dispute for adjudi-
cation. But the significant fact is that the reference
has to be made by the appropriate Government and
not by the parties, whereas under s. lOA 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
agreeement 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 appro-
priate Government, but the act of the parties them-
selves.
Section lOA (5) may also be considered in this
connection. If the reference to arbitration under
s, lOA (1) had been made by the appropriate
 64-6 SUPREME COURT REPORTS [1963] SUPP.
1962 Government, then the Legislature could have easily used
Enginetring Mazdoor appropriate language in that behalf assimilating the
Sabha arbitrator to the position of an Industrial Tribunal and
v.
Hind CJCl~s Ltd., in that case, it would not have been necessary to pro·
e.,,,bay vide that the Arbitration Act will not apply to arbi·
Gajenefragadkar, J. trations under this section. The provisions of s. lOA
(5) suggest that the proceedings contemplated by
s. lOA 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 Gorporation8 1'Jmployee8'
Union v. D. V. Vya.8 (1). In that case, the Bombay
High Court has held that an arbitrator functioning
under s. IOA is subject to the judicial suprrintmdence
of the High Court under Art. 227 of the Constitution
and, therefore, the High Court can entertain an appli-
cation 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. I OA 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. lOA was argued before the High Court or its atten-
tion was drawn to the obvious differences between the
provisions of s. lOA ands. 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 autho·
rity can be deemed to be a Tribunal under Art. 136.
Like Art. 136, Art. 227 also refers to courts and Tri-
bunals and what we have said about the character of
the arbitrator appointed under s. lOA by reference
to the requirements of. Art. 136, may prima tacie
(I) (1961) 64 Jlom. L. R. I•
l 'S.C.R. SUPREME COURT REPORTS 647
apply to the requirements of Art. 227. That, how- 1962
ever, is a matter with which we arc not directly con- Enginuring Mo.::.JQQ1
Sabha
cerned in the present appeals. v.
Hind CycleJ LtJ.,
Mr. Sule made a strong plea before us that if Bomba)'
the arbitrator appointed under s. I OA was not treated
Gajtndragadkar, J.
as a Tribunal, it would lead to unreasonable conse-
quences. He emphasised that the policy of the legis-
lature in enacting section lOA was to encourage
iµdustrial employers and employees to avoid bitterness
by referring their disputes voluntarily to the arbitra-
tors 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. lOA the proceedings
before the arbitrator are not subject to the scrutiny of
this Court under Art. I 36. It is extremi:ly anoma-
lous, 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 Arbi-
tration 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 IOA the Legislature probably did
not realise that the position of an arbitrator contem-
plated 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 appel-
lants 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.
Appeals dismissed.