Bombay High Court
General Manager vs Shri Sumit Mullick on 28 September, 2012
Bench: B. P. Dharmadhikari
WP2613.01.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.2613/2001
Petitioners : 1. General Manager, Western Coalfields
Ltd., Wani North Area, At post
Ukni, Tq. Wani, Dist. Yavatmal.
2. General Manager, Western Coalfields
Ltd., Majri Area, At Post Shembul,
Via Anandvan, Dist. Chandrapur.
ig ...Versus...
Respondents : 1. Shri Sumit Mullick, Div.
Commissioner Amravati Division,
Amravati.
2. Rashtriya Koyla Khadan Mazdoor
Sangh (INTUC) through its General
Secretary, S.Q. Zama, Plot No.604,
Giripeth, Opp. RTO Office, Nagpur.
3. Samyukta Khadan Mazdoor Santh
(AITUC) through its General
Secretary Shri Mohan Jha, 44,
Kingsway, Parwana Bhavan,
Station Road, Nagpur.
4. Lal Zenda Coal Mine Mazdoor Union
(CITU) through its General Secretary
Mohd. Tajuddin, Coal Estate, Civil
Lines, Nagpur.
5. Koyla Shramik Sabha (HMS) through
its President Shri Vidyasagar
Choudhary, Kharabe Bldg., 5, New
Cotton Market, Ghat Road, Nagpur.
::: Downloaded on - 09/06/2013 19:11:34 :::
WP2613.01.odt
2
6. Gajanan Vishwanath Jeurkar,
At Post Jamni, Tq. Warora,
Dist. Chandrapur.
7. Gajanan Pandurang Ghotekar,
At Kolgaon, Post Masegaon,
Tq. Wani, Dist. Yavatmal.
8. Surendra Nilkanth Khutemate,
At Post Pimpri (Ukni), Tq.
Bhadrawati, Dist. Chandrapur.
9. Sanjay Wasudeo More,
At Post Chikhalgaon, Tq. Wani,
ig Dist. Yavatmal.
10. Dilip Digambar Chopne, Vill.
Sawarla, Post Kona, Tq. Wani,
Dist. Yavatmal.
11. Vikas Rameshrao Bhongle, Near
Virani Talkies, Wani, Tq. Wani,
Dist. Yavatmal.
12. Nutan Tatyagi Landge,
C/o Smt. Pramila Tatyaji Ladange,
At Post Bhadrawati,
Dist. Chandrapur.
------------------------------------------------------
Shri S.C. Mehadia, Adv. for petitioners
Shri D.P. Thakare, AGP for R 1
Shri D.V. Chavan, with Shri A.S. Dabadghan. Advs. for R 6 to 11
------------------------------------------------------
CORAM : B.P. DHARMADHIKARI,J.
DATE : 28.09.2012
ORAL JUDGMENT
1. The matter is part heard. It was adjourned
on 25.9.2012 and 26.9.2012 to enable the parties to
WP2613.01.odt
further assist the Court. Today, respective Counsel
have completed their arguments.
2. This petition under Articles 226 and 227 of
the Constitution of India is filed by the employer-
Western Coalfields Limited against the Divisional
Commissioner, Amravati Division, Amravati (in person)
and four Trade Unions as also some individual workmen
against
respondent
the
no.1
award,
- Shri
dated
Sumit
16.7.2001
Mullick,
passed
the
by
then
Divisional Commissioner of Amravati after industrial
dispute was referred to him.
3. For deciding the present controversy, it is
not necessary to delve deep into facts. On 8.5.2001
the petitioners had communicated to respondent no.1
Divisional Commissioner, Amravati Division, Amravati
the fact that they have already submitted statement of
claim. Respondent no.1 has been mentioned as an
Arbitrator in earlier communication dated 28.3.2001.
The said communication is on the subject of
arbitration in case of so-called sons-in-law . The
letter mentions that Trade Union and the concerned
dismissed employees have agreed to terms of reference
WP2613.01.odt
and those terms are as under :
As to whether the action of the
management in dismissing the services of
S/Shri Gajanan Vishwanath Jeurkar, Gajanan
Pandurang Ghotekar, Surendra Neelkanth
Khutemate, Sanjay Wasudeo More, Dilip
Digambar Chopne, Vikas Rameshrao Bhongle,
Cat. I general Mazdoors, Wani North Area
and Shri N.T. Ledange, Cat. I General
Mazdoor, Majri Area on being found that
they secured employment on fake
declarations sons-in-law of land oustees
is justified ?
The relief if any to be given to
the dismissed employees.
Persons named therein are respondent nos.6
to 12.
4. Thus, it is obvious that dismissal of those
respondents by the petitioners on the ground that
employment provided to them as sons-in-law was not
proper formed the subject of arbitration proceeding.
The parties do not dispute that an industrial
dispute was thus referred to arbitration to
respondent no.1.
WP2613.01.odt
5. Respondent no.1 has delivered his award in
the said matter on 16.7.2001. After mentioning that
these workers were represented by four different Trade
Unions, the Divisional Commissioner has noted rival
contentions and found that employment was provided
with knowledge that recruits were not sons-in-law. It
was only after newspaper reports and vigilance
terminated
objection, the Management of petitioners panicked and
their services. Respondent no.1 also
concluded that these employees had filed false
declaration, claiming to be sons-in-law, however, in
the peculiar facts, the said Arbitrator directed the
petitioners to reinstate them with full back wages.
This Court has issued Rule in the matter on 6.4.2001
and no interim relief has been granted, with the
result the respective respondents-workmen, total seven
in number claim to be continuing in the employment.
6. In this background, Advocate Shri Mehadia on
behalf of the petitioners has invited attention to the
Scheme contained in Section 10A of the Industrial
Disputes Act, 1947 to show that the agreement to refer
the industrial dispute to Arbitrator is required to be
WP2613.01.odt
forwarded to an appropriate Government as also to the
Conciliation Officer and the appropriate Government
thereafter is expected to publish the same in official
gazette within one month. Sub Section 3A of Section
10A of the Industrial Disputes Act expects the
Government to undertake scrutiny of that agreement and
to issue a notification so as to enable the other
employers and other workmen who are not the parties to
the arbitration agreement but are concerned in the
dispute to participate in arbitration proceeding. As
these steps are not taken, the award must fall to
ground.
7. He has, in support of his contentions,
relied upon various judgments to which reference will
be made at appropriate juncture. According to him, as
the award is without jurisdiction, the same needs to
be quashed and set aside.
8. Learned Assistant Government Pleader
Shri Thakare appearing for respondent no.1 and
Advocate Shri Chavan appearing for respondent nos.6 to
12 have opposed the petition.
WP2613.01.odt
9. Advocate Shri Chavan submits that the
petitioners had an alternate and equally efficacious
remedy under Section 34 of the Arbitration and
Conciliation Act, 1996 and therefore, the writ
petition ought not to have been entertained. He
submits that as statutory remedy is available to the
petitioners, the question of delay in raising this
objection is immaterial. He is taking support of the
judgment of the Hon'ble Apex Court in the case of
State of Uttar Pradesh and another...Versus...Uttar
Pradesh Rajyakhanij Vikas Nigam Sangharsh Samiti and
others, reported at 2008 (12) Supreme Court Cases 675
for the said purpose. He has also relied upon several
other judgments to substantiate the contention that
the arbitration award, as delivered by the agreed
Arbitrator, cannot be allowed to be challenged by the
petitioners. The petitioners willingly participated in
those proceedings and only after an adverse award,
have found it proper to make grievance of precedural
or technical nature. He, therefore, prays for
dismissal of petition.
10. In reply, Advocate Shri Mehadia relied upon
the judgment of the Hon'ble Apex Court in the case of
WP2613.01.odt
The Rajasthan State Road Transport Corporation and
another etc. etc....Versus...Krishna Kant etc. etc.,
reported at AIR 1995 Supreme Court 1715, particularly
paragraph 13 to urge that it is only the Arbitrator
under the Industrial Disputes Act who can take
cognizance of dispute and it has to be inconsonance
with the scheme of Section 10A of the Industrial
Disputes Act. He urged that permitting the respondents
to raise an objection on alternate remedy at this
stage i.e. almost after 11 years is, therefore, unjust
in present facts.
11. Perusal of the judgment in the case of State
of Uttar Pradesh and another...Versus...Uttar Pradesh
Rajyakhanij Vikas Nigam Sangharsh Samiti and others,
(supra), particularly paragraph nos.37 and 38 shows
that there the objection raised was about premature
filing of writ petition before the High Court and it
was also pointed out that several disputed questions
on facts were involved. Respondent no.1 had pointed
out that there was illegal closure of undertaking and
there was non-payment of wages by the employer. One of
the Judges constituting Division Bench of High Court
upheld the contention and observed that employees
WP2613.01.odt
should have asked compensation under Section 25 FFF of
the Industrial Disputes Act. It is in this background,
the Hon'ble Apex Court has observed that it has never
laid down a proposition that once petition is
admitted, it cannot be dismissed on the ground of an
alternate remedy. The observation of the Hon'ble Apex
Court, therefore, shows that availability of alternate
remedy is one of the relevant considerations and writ
petition cannot be said to be not maintainable merely
because the alternate remedies are available. In view
of this position, it is not necessary for this Court
to dwell more on this issue.
12. Coming to the merits of writ petition,
parties do not dispute that what is referred to
Arbitrator is an industrial dispute. Section 2 (k)
of the Industrial Disputes Act defines that industrial
dispute to mean any dispute or difference between
employers and employers, or between employers and
workmen, or between workmen and workmen, which is
connected with the employment or non-employment or the
terms of employment or with the conditions of labour
of any person. Here, the issue pertains to dismissal
i.e. non-employment of seven so called sons-in-law.
WP2613.01.odt
That dispute constituted industrial dispute, was
agreed to be referred to by the Trade Unions
representing those seven workmen (sons-in-law) for
arbitration to Divisional Commissioner, Amravati.
Respondent no.1- Sumit Mullick was then the learned
incumbent. He has passed the impugned award in that
capacity.
13. Section 10A of the Industrial Disputes Act
is about voluntary reference of disputes to
arbitration. Its Sub Section 1 enables employer and
the workman to agree to refer the dispute to
arbitration, if there is recognized union in respect
of any undertaking. The reference can 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
arbitration agreement. Only condition is reference can
be made by written agreement at any time before the
said dispute is referred under Section 10 of the
Industrial Disputes Act to Labour Court or Tribunal or
National Tribunal. Sub Section 1A of Section 10A of
the Industrial Disputes Act is a procedural part which
envisages the reference to an even number of
WP2613.01.odt
Arbitrators and need of an opinion of an umpire.
Sub Section 2 stipulates that arbitration agreement
has to be in such a form and signed by the parties
thereto, in such manner as may be prescribed. There is
no dispute between the parties in relation to
compliances with these provisions.
14. Sub Section 3 of Section 10A of the
Industrial Disputes Act mandates that copy of such
agreement is to be forwarded to appropriate Government
and Conciliation Officer. The appropriate Government
thereafter has to publish that agreement in Official
Gazette within one month of its receipt. There is
additional requirement in Sub Section 3A that if after
receipt of such agreement and when dispute is referred
to arbitration, appropriate Government is satisfied
that the persons making the reference represent the
majority of each party, it has to issue a notification
in such manner as may be prescribed, within aforesaid
period of one month and after publication of such
notification the employers and workmen not parties to
arbitration agreement but are concerned in the
dispute, get an opportunity of presenting their case
WP2613.01.odt
before the arbitrator. This Sub Section 3A has no
application if the dispute is referred to arbitration
in pursuance of an agreement between the employer and
recognized union under Sub Section (1). Sub Section 4
requires arbitrator to investigate the dispute and
then submit his award to the appropriate Government.
Sub Section 4A stipulates that where dispute has been
referred
issued
to
under
ig arbitration
Sub Section
and notification
3A or when
has
there
been
is
recognized union for any undertaking, the appropriate
Government may, by order, prohibit continuation of any
strike or lockout in connection with such dispute
which may be in existence on the date of reference.
Sub Section 5 lays down that nothing in Arbitration
Act, 1940 (10 of 1940) applies to arbitrations under
Section 10. There is no dispute between the parties
that this Sub Section also excludes application of the
Arbitration and Conciliation Act, 1996 so far as
arbitration under Section 10A of Industrial Disputes
Act is concerned.
15. The Division Bench of Madras High Court in
the case of Madras Machine Tools Mfres,
WP2613.01.odt
Coimbatore...Versus...Spl. Dy. Commissioner of Labour,
Madras and another, reported in 1979 (II) L.L.J. page
331 has looked into Section 10A of the Industrial
Disputes Act and noted that there are two stages
contemplated in that section. First is the stage of
agreement and the other is the stage of award.
Non-publication of agreement under Sub Section 3 is
held not
to render arbitration
invalid. For said purpose the Full Bench judgment of
agreement itself
that Court reported in the case of R.K. Steels (P)
Ltd....Versus...Their Workmen, reported at 1977-I
L.L.J. 382 has been relied upon. The Division Bench,
however, found that said conclusion was applicable
only to the stage of agreement and cannot be extended
beyond that stage. It cannot therefore be extended to
award. It found that as Section 10A (3A) was not
complied with, award cannot be characterized as valid.
The said Bench holds that any other view will
jeopardise the industrial peace and harmony and the
State Government will also lose its jurisdiction to
issue notification under Section 10A (4A) of the
Industrial Disputes Act. The Division Bench of Orissa
WP2613.01.odt
High Court in the case Rasbehary
Mohanty...Versus...Presiding Officer, Labour Court and
another, reported at 1974 L.L.J page 222 has been
relied upon by Madras Division Bench. The Division
Bench of Madhya Pradesh High Court in the case of
Singh (K.P.) and another...Versus...Gokhale (S.K.) and
another, reported at 1970 (I) L.L.J. 125 has also been
Bench of
relied upon to reach this conclusion. The Division
Madhya Pradesh High Court holds that if
procedure prescribed under Sub Sections (3) and (4) is
not followed, award made by the Arbitrator under
Section 10A of the Industrial Disputes Act will be
invalid. The learned Single Judge of Madhya Pradesh
High Court has reiterated same view in the case of
Sanyukt Koyla Mazdoor Sangh...Versus...The General
Manager, Western Coalfields Ltd. and others, reported
at 1997 (76) FLR 844.
16. In the case of Air Corporations Employees'
Union and another...Versus...D.V. Vyas and others,
reported at AIR 1962 Bombay 274 (V 49 C 61), the
Division Bench of this Court has considered power of
superintendence of High court over Arbitrator's
WP2613.01.odt
functioning under Section 10A and held that said
Arbitrator acts as quasi-judicial body and his orders
can be corrected in writ of certiorari. The Hon ble
Apex Court in the case of Karnal Leather Karamchari
Sanghatan (Regd.)...Versus...Liberty Footwear Company
(Regd.) and others, reported at 1989 (II) L.L.J. 550
has held that the requirement of publication of
Industrial
agreement under Sub Section (3) of Section 10A of the
Disputes Act is mandatory and
non-compliance with that requirement renders award
invalid. Consideration of this controversy in
paragraph nos.26 and 27 made by the Hon ble Apex Court
reveals that a provision may be required to be
construed as mandatory even in absence of any penal
provision dealing with its non-compliance. Paragraph
no.27 gives the reason as to why the Hon ble Apex
Court finds compliance of Section 10A (3) of the
Industrial Disputes Act mandatory. Said paragraph
no. 27 reads as under :
27. Now look at the provisions
of sub-section (3). It is with respect to
time for publication of the agreement. But
publication appears to be not necessary for
WP2613.01.odt
validity of the agreement. The agreement
becomes binding and enforceable as soon as
it is entered into by the parties.
Publication is also not an indispensable
foundation of jurisdiction of the
arbitrator. The jurisdiction of the
arbitrator stems from the agreement and not
by its publication in the Official Gazette.
Why then publication is necessary ? Is it an
idle formality? Far from it. It would be
wrong to construe sub-section (3) in the
matter suggested by counsel for the
appellant. The Act seeks to achieve social
justice on the basis of collective
bargaining. Collective bargaining is a
technique by which dispute as to conditions
of employment is resolved amicably by
agreement rather than coercion. The dispute
is settled peacefully and voluntarily
although reluctantly between labour and
management. The voluntary arbitration is a
part of infrastructure of dispensation of
justice in the industrial adjudication. The
arbitrator thus falls within the rainbow of
statutory tribunals. When a dispute is
referred to arbitration, it is, therefore
necessary that the workers must be made
aware of the dispute as well as the
arbitrator whose award ultimately would bind
them. They must know what is referred to
WP2613.01.odt
arbitration, who is their arbitrator and
what is in store for them. They must have an
opportunity to share their views with each
other and if necessary to place the same
before the arbitrator. This is the need for
collective bargaining and there cannot be
collective bargaining without involving the
workers. The union only helps the workers in
resolving their disputes with management but
ultimately it would be for the workers to
take decision and suggest remedies. It seems
to us, therefore, that the arbitration
agreement must be published before the
arbitrator considers the merits of the
dispute. Non-compliance of this requirement
would be fatal to the arbitral award.
17. The Hon ble Apex Court has also made
reference to various judgments including the judgment
of Orissa High Court already referred to supra. This
judgment of the Hon ble Apex Court shows that view
taken by the full Bench of Madras High Court in the
case of R.K. Steels (P) Ltd....Versus...Their Workmen,
reported in 1977 (I) L.L.J. page 382 cannot be said to
be a good law.
WP2613.01.odt
18. Perusal of unreported judgment delivered by
learned Single Judge of Madras High Court in Writ
Petition No.5831/2003 (Rap Mfrs Employees Welfare
Union...Versus...The Deputy Commissioner of Labour) on
29.7.2008 reveals that on 15.12.2004 a reference to
Full Bench was sought on question whether an award
under Section 10A of the Industrial Disputes Act which
is renderedig invalid due to non-compliance
requirement of Section 10A (3) of the Act could be
of the
enforced by one of the parties as an award on private
arbitration under the provisions of the Arbitration
and Conciliation Act, 1996. In paragraph no.9, the
learned Single Judge has noted answer given by this
Full Bench. That answer is as under :
9. The Hon'ble Full Bench
answered the issue as follows :-
it is not disputed by the
respondents/management there was no
publication of the arbitration agreement as
required under Sec. 10A(3) of the I.D. Act.
However, it is the claim of the management
that though the award may be invalid under
the I.D. Act, the award will be enforceable
as an award under private arbitration ..
WP2613.01.odt
the arbitration agreement as
entered into between the parties is
traceable only under Section 10A of the
I.D. Act and the agreement being statutory
agreement, passed in pursuance of the
provisions of the Act whether it is
enforceable or not is to be decided only
under the provisions of the I.D. Act. We
reiterate that if the award fails to
satisfy igthe requirements under the I.D.
Act, then the same becomes invalid and
unenforceable. To put it clear that non-
publication of the arbitration agreement in
terms of Section 10A (3) of the I.D. Act
vitiates the award and it cannot be
enforced by one of the parties, as an award
in private arbitration under the provisions
of Arbitration Act, 1996.
In the light of the above
observation, we hold that an award under
Section 10-A of the I.D. Act, which is
rendered invalid due to non-compliance of
the requirement under Section 10-A (3) of
the I.D. Act, cannot be enforced by the
parties as an award in private arbitration
under the provisions of Arbitration Act,
1996. The reference is answered
accordingly.
WP2613.01.odt
19. Thus, the Full Bench has found that such
invalid award cannot be enforced by one of the parties
as an award on private arbitration under the
provisions of Arbitration Act 1996.
20. These judgments, therefore, conclusively
established that the agreement between the parties to
refer the dispute to arbitration under Section 10A of
the
Industrial Disputes Act needed
Conciliation Officer as also to appropriate Government
to be sent to
and appropriate Government ought to have published the
same within one month of its receipt in Official
Gazette. The appropriate Government was also duty
bound to apply its mind to ingredients of Sub Section
3A of Section 10A of the Industrial Disputes Act to
find out whether opportunity needed to be given to
other employers or other workmen, not party to
arbitration agreement, so as to enable them to appear
before the Arbitrator and present their case. This
procedure appears to be mandatory for finally
resolving the industrial dispute once for all and to
restore and preserve industrial peace and harmony in
the industry. Any deviation from this procedure may
WP2613.01.odt
result in private and at the most a temporary
resolution of problem, which may again erupt in due
course after others, who are interested or concerned,
get knowledge of its such clandestine settlement.
21. In the case of The Rajasthan State Road
Transport Corporation and another etc.
etc....Versus...Krishna Kant etc. etc. (supra) the
Hon ble Apex Court in paragraph no.32 summarized the
principles regarding jurisdiction of civil Court in
relation to dispute between employer and employee.
Principle no.3 shows that when the dispute involves
the recognition, observance or enforcement of rights
and obligations created by enactments like Industrial
Disputes Act or Industrial Employment (Standing
Orders) Act, 1946 only remedy is to approach the
forums created by the Industrial Disputes Act. This
can also be seen from principle nos.2 and 7. The
Hon ble Apex Court has found that an effort was to
provide an alternate dispute resolution mechanism to
the workmen, a mechanism which is speedy, inexpensive,
informal and un-encumbered by the plethora of
procedural laws and appeals upon appeals and revisions
WP2613.01.odt
applicable to civil Courts. It has been noted that
powers of Courts and Tribunals under the Industrial
Disputes Act are far more extensive in sense that they
can grant such relief as they think proper.
22. This judgment of the Hon ble Apex Court
therefore shows that the Industrial Dispute between
parties before this Court could not have been placed
before the civil Court under Section 9 of the Code of
Civil Procedure. It is, therefore, obvious that the
said dispute could not have been subjected even to the
Arbitration and Conciliation Act, 1996. The Industrial
Dispute and its resolution is the exclusive province
and necessary mechanism including forums therefor are
provided under the Industrial Disputes Act, 1947.
Contention of Advocate Shri Chavan that award impugned
before this Court, therefore, needed to be challenged
by filing proceeding before the District Court under
Section 34 of the Act for setting aside the same is
misconceived. Award delivered by respondent no.1
cannot be treated as an award under the Arbitration
and Conciliation Act, 1996. Industrial dispute
cannot be settled in any other mode and manner or
WP2613.01.odt
de hors Section 10A of the Industrial Disputes Act.
23. The judgments noted supra had taken care of
the similar arguments and found it necessary to
preserve the industrial peace and harmony. Precisely,
for the said purpose, the provisions of the
Arbitration and Conciliation Act, 1996 are not
extended to voluntary reference of disputes to
arbitration
Disputes
Act.
under
In
Section
facts
10A
before
of
me,
the Industrial
admittedly,
procedure envisaged by Section 10A (3) (3A) of the
Industrial Disputes Act has not been followed. The
impugned award dated 16.7.2001, therefore, cannot be
said to be legal and valid, it is not enforceable
also. The same is accordingly quashed and set aside.
24. The matter is placed back for a fresh
consideration before respondent no.1. The copies of
agreement to refer the dispute to arbitration shall be
forwarded by the parties to Conciliation Officer and
to the Central Government and the Central Government
shall comply with the provisions of Section 10A (3) &
(3A) of the Industrial Disputes Act within statutory
time.
WP2613.01.odt
25. If respondent no.1 - Sumit Mallic is not
available as Divisional Commissioner, the parties are
free to name another person as an Arbitrator within a
period of one month from today or they can also accept
the present incumbent holding the post of Divisional
Commission, Amravati as their Arbitrator, provided
said incumbent agrees to take up this responsibility.
26.
Advocate Shri Mehadia states that respondent
nos.6 to 12 are out of employment. Needless to mention
that till the industrial dispute is resolved in
arbitration under Section 10A of the Industrial
Disputes Act, status quo as on today, in relation to
employment or services of respondent nos.6 to 12,
shall be maintained.
27. This petition is, thus, party allowed. Rule
is made absolute accordingly. However, in the
circumstances of the case, there shall be no order as
to costs.
JUDGE
ssw
