1. There was a dispute between the Textile workers in Ahmedabad and the Millowners' Association and in regard to those disputes and future disputes there was a submission in arbitration on 31-7-1952. On 9-9-1953 respondent 2 company gave a notice to its workers to close down the second shift from 10-10-1953.
On 2-10-1953 the petitioners, who are the Textile Labour Association, wrote to respondent 2 company pointing out that the action that they sought to take was covered by the general submission made on 31-7-1952 and before closing down this shift they should have the matter adjudicated upon by the arbitrators. Respondent 2 company did not accept this contention of the petitioners and the second shift was closed down from 10-10-1953.
At that time an industrial dispute was pending before the Labour Appellate Tribunal and the petitioners made a complaint under Section 23, Industrial Disputes (Appellate Tribunal) Act, 1950, that respondent 2 company had dismissed its employees without the necessary permission of the Labour Appellate Tribunal under Section 22.
This dispute between the petitioners and respondent 2 company was referred to arbitration on 18-12-1953 and the submission paper signed by the General Secretary of the Textile Labour Association and the Manager of respondent 2 company stated that the parties shall refer within a week the dispute involved in the present application to he arbitration of Sheth Shri Sakarlal Balabhai and Shri S.R. Vasavda under the terms of the arbitration agreement between the Millowners Association and the Textile Labour Association of Ahmedabad, and this was the reference to the general submission made on 31-7-1952.
The submission to arbitration was registered under Section 66, Bombay Industrial Relations Act, 1946, on 17-1-1954 and the dispute which was referred is the dispute regarding the closure of the second and third shifts to the arbitration of Vasadva and Sakarlal Balabhai. The arbitrators differed and the matter was referred to Mr. Divatia who acted as the Umpire, and Mr. Divatia gave his award on 16-9-1954. Respondent 2 company then applied to the Labour Court to set aside the award on the ground of legal misconduct on the part of Mr. Divatia.
The Labour Court held that the application was not maintainable and dismissed the application. Respondent 2 company appealed to the Labour Appellate Tribunal. The Labour Appellate Tribunal took the view that the application was Well founded, set aside the order of the Labour Court and remanded the matter to the Labour to dispose of the application of respondent 2 company on merits. The petitioners have now come before us on this petition.
2. The contention of Mr. Buch is that In arbitration under the Bombay Industrial Relations Act, 1946, the provision contained in the Arbitration Act for setting aside an award on the ground of misconduct of an arbitrator does not apply. Chapter XI of the Bombay Industrial Relations Act deals with arbitration and Section 66 provides for submission to arbitration of any Industrial dispute by an employer and a representative Union or any other registered union and the submission may be to a private or to a labour Court or the Industrial Court. Section 68 provides:
'The proceedings in arbitration under this Chapter shall be in accordance with the provisions of the Arbitration Act, 1940, in so far as they arc applicable and the powers which are exercisable by a Civil Court under the said provisions, shall be exercisable by the Labour Court and the Industrial Court.'
Section 72 confers upon the State Government the power to refer any matter to arbitration of a Labour Court or the Industrial Court, and Section 73 also confers upon the State Government the power to refer to the arbitration of the Industrial Court certain cases mentioned in that section. Section 73A confers powers upon unions to refer matters to arbitration.
Section 74(1) provides that the arbitrator, if he is a private arbitrator, or the Labour Court or the Industrial Court, as the case may be, shall forward copies of the award made by him or it to the parties, the Commissioner of Labour and the Registrar, and Sub-section (2) of Section 74 casts a duty upon the Registrar, on receipt of such award, to enter it in the register kept for the purpose and to publish it in such manner as may be prescribed.
Section 75 provides for the coming into operation of the award and it lays down, that it shall come into operation on the date specified in the award or where no such date is specified therein on the date on which it is published under Section 74. Section 76 provides that the arbitration proceedings shall be deemed to have open completed when the award is published under Section 74.
3. Briefly put Mr. Buch's argument is that Section 68 when it makes the provisions of the Arbitration Act applicable to proceedings in arbitration under Chapter XI, Bombay Industrial Relations Act, only makes those provisions of the Arbitration Act, 1940, applicable which deal with matters connected with arbitrators antecedent to the making of the award.
According to Mr. Buch, once the award is made there is no provision under the Arbitration Act 1940, which can be made applicable to an arbitration entered into under Chapter XI, Bombay Industrial Relations Act, 1946. Such a contention is untenable looking to the wide language used by the Legislature in Section 68. All the provisions of the Arbitration Act, in so far as they are applicable have been applied to arbitrations under Chapter XI, Bombay Industrial Relations Act, 1946, and the powers which a Civil Court exercises under the Arbitration Act are to be exercised by a Labour Court and the Industrial Court.
In other words, the Legislature, instead of setting up a separate machinery for arbitration under Chapter XI incorporated the provisions of the Arbitration Act into the Bombay Industrial Relations Act, 1946. It is true that if we consider any provision of the Arbitration Act it would be necessary to inquire whether that particular provision is applicable looking to the scheme of the Bombay Industrial Relations Act 1946. .
If any provision is inconsistent with the scheme of the Bombay Industrial Relations Act, 1946, then the provision of the Arbitration Act to that extent would not be applicable. One salient fact which becomes immediately apparent is that Chapter XI does not provide for any machinery for setting aside an award. If an arbitrator is guilty of misconduct or if the award is otherwise invalid, there is nothing in Chapter XI which confers any right upon the aggrieved party to challenge the award.
Mr. Buch does not suggest indeed -- he cannot suggest -- that an aggrieved party should be without a remedy, but his contention is that the remedy is to be found not within the four corners of the Arbitration Act, 1940, but outside the Act. But before we seek the remedy outside the Arbitration Act, we must be satisfied that the remedy provided in the Arbitration Act itself is a remedy Which cannot be resorted to looking to the scheme of Chapter XI.
4. Turning to the Arbitration Act, 1940, Section 30 lays down the grounds for setting aside an award and the award of Mr. Divatia has been challenged by respondent 2 company on one of the grounds mentioned in Section 30. Whether they succeed in making good that ground or not is another matter with which we are not concerned on this petition.
Therefore, as far as Section 30 is concerned there is no reason why the provisions of Section 30 should not be made applicable to arbitration under Chapter XI, Bombay Industrial Relations Act, 1946. But what is pointed out by Mr. Buch is that when you look at some of the other provisions of the Act it is clear that the machinery set up under the Arbitration Act, for setting aside the award cannot possibly be made applicable to arbitrations under the Bombay Industrial Relations Act.
In the first place, attention is drawn to Section 14 and it is pointed out that that section deals with the filing of the award and it is pointed out that as far as the Bombay Industrial Relations Act is concerned the provisions with regard to filing of the award are different from the provisions contained in Section 14. To that extent Mr. Buch may be right that when an award is made in an arbitration under Chapter XI, Bombay Industrial Relations Act, the award has to be filed not as provided by Section 14, Arbitration Act but as provided by Section 74, Bombay Industrial Relations Act.
But that does not present any insurmountable difficulty with regard to an application to set aside an award. Then reliance is placed on Section 31, Arbitration Act, and that is the section which confers jurisdiction upon the Courts to take an award on file and to deal with awards which have been so filed. It is the Courts mentioned in Section 31 Which either may pass a decree on the award or which may set aside the award or which may remit the award to the arbitrator and what is relied upon is that the Court in which the question regarding the validity of the award can be raised is the Court in which the award has been filed and no other Court, and it is contended that inasmuch as the award cannot be filed as provided by Section 14, Arbitration Act there is no jurisdiction under Section 68, Bombay Industrial Relations Act upon the Labour Court or the Industrial Court to consider and adjudicate upon the validity of an award.
It is perfectly true that under the Arbitration Act an award has got to be filed under Section 14 and it is only that Court in which the award has been filed or where the award may be filed that has jurisdiction to deal with the question of the validity of an award under Section 30. But Section 68 -- and that is the whole purpose of Section 68 -- substitutes a Labour Court or an Industrial Court for the Civil Court which exercises jurisdiction with regard to awards under Section 31.
The powers which are exercisable by a Civil Court are exercisable by a Labour Court and the Industrial Court, and it is difficult to understand why a Labour Court or an industrial Court cannot deal with the validity of an award in the same way as a Civil Court can under the provisions of the Arbitration Act. Obviously, the provisions of the Arbitration Act must be applied to the Bombay Industrial Relations Act mutatis mutandis.
Under the Arbitration Act an award has to be filed as provided by Section 14 and then an application to set aside an award has to be made to a Court having jurisdiction under Section 31. Under the Bombay Industrial Relations Act the award has to be filed as provided by Section 74, but once the award has been filed there seems to be no principle which could justify the contention that the Labour Court or the Industrial Court, which are Courts upon which jurisdiction has been conferred by Section 68, cannot deal with an application to set aside the award.
5. Mr. Buch suggested that an aggrieved party would not be without a remedy because he could file a suit challenging the award. The whole principle underlying the Arbitration Act is to make it a self-contained Code and Section 32 of the Act bars suits which question the existence, effect or validity of an arbitration agreement or award.
It is difficult to accept the contention that the Bombay Industrial Relations Act should have deprived an aggrieved party of the summary and. more expeditious remedy of challenging an award by the procedure laid down in the Arbitration Act and should have driven the party to a Civil Court to have his right adjudicated upon. The Whole object of Labour Legislation is to get quick decisions with regard to industrial disputes and it cannot be seriously suggested that Labour Legislature contemplated an award being challenged by the rather leisurely, expensive and slow method of a civil suit being filed with regard to the validity of the award.
6. It is then urged by Mr. Buch that even if a suit would not lie to determine the validity of the award, the aggrieved party could always come to this Court under Article 226 or Article 227. What we are looking for is an ordinary legal remedy afforded to the aggrieved party.
An application to this Court under Article 226 or Article 227 is an extraordinary remedy and an aggrieved party has no right to get relief at the hands of this Court under Article 226 or Article 227. The Arbitration Act gives the aggrieved party a right which cannot be denied to him of having the award set aside if the arbitrator is guilty of misconduct, and to suggest that in place of that legal right a mere discretionary remedy is possible to a party aggrieved with regard to an arbitration under Chapter XI, Bombay Industrial Relations Act is really not to meet the difficulty at all.
7. It is then pointed out that under Section 75, Bombay Industrial Relations Act it is provided that the award is to come into, operation on the date specified in the award or where no such date is specified therein on the date on which it is published under Section 74, and it is seriously urged that the Bombay Relations Act, 1948, does not contemplate any proceeding between the filing of the award and the coming into force of the award.
In other words, it is urged that once the award is filed it automatically comes into operation and nothing could prevent the coming into operation of the award. The award that shall come into operation under Section 75 is obviously a valid award. If the award itself is not valid & it can be successfully challenged, surely the Legislature did not intend that an invalid award shall come into operation.
8. Mr. Buch also drew our attention to Section 49, Arbitration Act and that section applies the provisions of the Act, except certain sections to statutory arbitrations. The sections which are excepted do not deal with the question of the validity of the award or the setting aside of the award. Therefore, the provisions of the Arbitration Act with which we are concerned are made applicable to statutory arbitrations. What Section 46 provides is that the provisions of the Arbitration Act shall apply except in so far as the Arbitration Act is inconsistent with any other enactment or the rules made thereunder which provide for a statutory arbitration.
Section 46 deals with those statutory arbitrations where the statute itself is looked upon as an arbitration agreement and it may be said that as far as the case with which we are concerned it is not a statutory arbitration in the sense in which Section 46 intends it to be. We are dealing with an arbitration under Section 66 where parties by a written submission go to the arbitration of a private party.
This is not a case where the State refers the dispute to arbitration find the statutory provision itself constitutes an arbitration agreement. But even assuming that Section 46 applied, Mr. Buch has failed to satisfy us that there is anything in the provisions of the Arbitration Act with regard to the setting aside of an award which is inconsistent with the provisions contained in Chapter XI, Bombay Industrial Relations Act.
9. Mr. Buch wanted to draw our attention to the scheme of the Bombay Industrial Relations Act, 1946 with regard to the appointment of the Labour Court or the Industrial Court as the arbitrator. It is always undesirable to lay down any principle of law with regard to a matter which is not 'directly under the consideration of the Court, and the only question which we are concerned With here and which we are deciding is a case of a submission under Section 66 to provide arbitrators and to a private Umpire. We will consider the question when it arises whether what we are laying down today could also apply to a case when the arbitrator is the Labour Court or the Industrial Court.
10. The next contention urged by Mr. Buch is that the Labour Appellate Tribunal had no Jurisdiction to hear the appeal from the decision of the Labour Court, and what is pointed out is that the application of respondent 2 company was made to the Labour Court to set aside the award because the matter fell under Section 78(1)(A)(a)(iii) and an appeal from a decision of the labour Court under Section 78 lies to the Industrial Court under Section 84 and the proper appellate authority was the Industrial Court and not the Labour Appellate Court.
It is erroneous to suggest that the Labour Court was exercising its jurisdiction under Section 78 in dealing with the application made by respondent 2 company. The Labour Court was dealing with an application to set aside an award and the Labour Court would have no jurisdiction to entertain such an application to set aside an award and the Labour Court would have no jurisdiction to entertain such an application under Section 78 at all. Its jurisdiction springs from the provisions of Section 68.
It is that section which confers jurisdiction upon the Labour Court to exercise the powers exercisable by a Civil Court under the Arbitration Act and the question that we have to consider is, when a Labour Court exercises the power of a Civil Court under the Arbitration Act under Section 68, whether an appeal lies and if so to which Court. The reason why respondent 2 company went to the Labour Court and not to the Industrial Court on this petition was that the subject matter of the reference to arbitration fell within the jurisdiction of the Labour Court under Section 78.
But even though the subject matter of the reference might have fallen within the jurisdiction of the Labour Court under Section 78, the Labour Court was not dealing with that subject matter but was dealing with the question of the validity of the award under Section 68, and as far as the Bombay Industrial Relations Act is concerned there is no provision with regard to appeal from a decision of the Labour Court exercising its powers under Section 68.
For that purpose we have really to turn to the Industrial Disputes (Appellate Tribunal) Act and under Section 2(c) an Industrial Tribunal is defined as in relation to other cases, where no appeal lies under any law referred to in Sub-clause (ii), any Court, board or other authority set up in any State under such law, and it is not disputed that under this definition the Labour Court under Section 68 would be an industrial tribunal and if the Industrial Court would be an industrial tribunal under Section 2 then an appeal is provided against the decision of the Industrial Court under Section 7 to the Appellate Tribunal and it is under this provision that the appeal was entertained by the Labour Appellate Tribunal.
In our opinion, the appeal was rightly entertained and the Labour Appellate Tribunal had jurisdiction to entertain the appeal.
11. The result is that the petition fails and must be dismissed. No order as to costs.
12. Petition dismissed.