1. This petition is directed against interlocutory orders of the State Industrial Court in a proceeding under Section 38A of the Central Provinces and Berar Industrial Disputes Settlement Act commenced by the respondent No. 2 against the petitioners.
2. Only two questions arise in this petition. The first is whether the assessors referred to in Section 22(4) of the Act must joint in all the proceedings before the State Industrial Court or whether that Court could undertake any of these proceedings in the absence of the assessors. The other question raised is whether one of the assessor viz. Mr. Sonkamle, respondent No. 3, who was the President of the Akola Mazdoor Sangh, which was the applicant before the State Industrial Court, could be an assessor when he was himself a party to the proceedings.
3. So far as the first question is concerned it is concluded by a decision of a division Bench of this Court reported in Provincial Transport Services v. N.H. Mazumdar, 1957 Nag LJ 405, wherein it was held that under Section 22 (4) of the C.P. and Berar Industrial Disputes Settlement Act where a question of an increase or decrease of wages is before the State Industrial Court the assessors have to associate with it during the enquiry into such question. Some argument was advanced as to whether this meant that at every stage of the enquiry the assessors should be associated with the Court. In our opinion, the section itself requires and the ruling also makes it clear that the assessors should be associated at every stage of the enquiry on the merits of an industrial dispute or an industrial matter before the Court.
4. As to the second question raised, no doubt, it is a principle of natural justice that a party must not be a judge in its own cause. That is a rule however which is applicable to judicial proceedings strictly so called. But in the case of industrial disputes the element of judicial adjudication is not the only element. There is mere often involved an element of conciliation, arbitration or collective bargaining. This is clear if we consider the nature of the functions it has be perform. The nature of its functions is well put by Ludwig Teller in this book of Labour Disputes and Collective Bargaining, Vol. 1, at page 534 as follows:
'The kernel of the distinction between commercial and industrial arbitration is said to be found in the fact that commercial arbitration is an aspect of the administration of justice, and more particularly, a substitute for the judicial process, while the arbitration of labour disputes is more often an extension of the process of collective bargaining.'
And at page 536, the point is further elucidated as follows:
'Again, industrial arbitration is more usually spoken of in connection with the adjustment of existing labour controversies, while commercial arbitration is said more often to include the disposition of controversies which may arise in the future out of agreements between the parties. The too, industrial arbitration may involve the extension of an existing agreement, or the making of a new one, or in general the erection of new obligations or modifications of old ones, while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existing agreements ..... Compromise by contending advocate rather than justice by impartial men is thus the purpose of the procedure adopted under such Statutes.'
And the learned author adds-
'Hence, partisan arbitration condemned in connection with commercial arbitration, are commonly found setting in judgment upon the merits of respective contentions of the parties to a labour dispute.'
We are in agreement with these view and, in our opinion, the mere fact that the third respondent was the President of the Akola Mazdoor Sangh, which was also an applicant before the State Industrial Court, would not ipso facto preclude him from being an assessor under Section 22(4) of the Act.
5. We therefore partly allow the petition and quash the order of the State Industrial Court holding that it can proceed with the proceedings in the absence of the assessors. As to its order holding that the third respondent Mr. Sonkamle could validly continue to act as an assessor, it is upheld. In the circumstances there shall be no order as to costs.
6. There was a third question raised in the petition as to the scope of the reference, a question disposed of by the first respondent by its order dated 27-3-1957. Counsel on both sides agree that the question need not be decided here and should be left open.
7. Petition partly allowed.