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Harbanswala Tea Estate Vs. Srivastava (J.N.) (Regional Conciliation Officer and Arbitrator) and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Judge
Reported in(1962)IILLJ702All
AppellantHarbanswala Tea Estate
RespondentSrivastava (J.N.) (Regional Conciliation Officer and Arbitrator) and ors.
Excerpt:
- - they complained that the punishments so awarded were unjustified. kakkar appearing for the petitioner urged that the award in question is bad in law for three reasons. so the present case was not governed by rule 40. in view of clause (iii) of the agreement, the arbitrator would have been well advised if he had refused the mazdoor union permission to represent the six workmen during the arbitration proceedings......parties are agreed that on 12 august 1958 they entered into an agreement for referring their dispute to arbitration. annexure b to the affidavit is a copy, of the arbitration agreement dated 12 august 1953. in support of his contention that this was not an industrial dispute, mr. kakkar referred to certain provisions of the agreement, annexure b. in clause (iv) of the agreement it was mentioned that total number of workmen employed in the undertaking affected was about 500. in clause (v) of the agreement it was stated that the estimated number of workmen affected or likely to be affected by the dispute was six. from this recital in the agreement, mr. kakkar contended that this was merely a dispute between the management and six specified employees. for this reason it was contended.....
Judgment:

V.G. Oak, J.

1. This writ petition is directed against an award delivered by an arbitrator. Harbansiwala Tea Estate, Debra Dan, are the petitioner. Sri Mehra, who is the manager of the petitioner estate, has filed an affidavit in support of the petition.

2. According to the affidavit, Mata Din and others, who are opposite parties 2 to 7 in the writ petition, were six employees of the petitioner. The petitioner imposed various penalties upon the six workmen. They complained that the punishments so awarded were unjustified. The dispute between the management and the six workmen was referred to arbitration. Sri Srivastava, Regional Conciliation Officer, Meerut, was appointed arbitrator. He gave an award on 15 January 1960 in favour of the workmen. According to the petitioner, the award is vitiated for various reasons. The petitioner has therefore prayed that the award dated 15 January 1960 be quashed.

3. The Secretary, Chai Bagan Mazdoor Union, is opposite party 8. Sri Mela Ram, who is the general secretary of the Chai Bagan Mazdoor Union, has filed one counter-affidavit. Another counter-affidavit has been filed by Sri Gupta, who is an additional regional conciliation officer.

4. Mr. S.N. Kakkar appearing for the petitioner urged that the award in question is bad in law for three reasons. The award was published in Uttar Pradesh Gazette on the footing that it was an award under the Uttar Pradesh Industrial Disputes Act, 1957 thereafter referred to as the Act). Mr. Kakkar'a first contention is that there was no industrial dispute and the award could not be enforced under the Act.

5. Parties are agreed that on 12 August 1958 they entered into an agreement for referring their dispute to arbitration. Annexure B to the affidavit is a copy, of the arbitration agreement dated 12 August 1953. In support of his contention that this was not an industrial dispute, Mr. Kakkar referred to certain provisions of the agreement, annexure B. In Clause (iv) of the agreement it was mentioned that total number of workmen employed in the undertaking affected was about 500. In Clause (v) of the agreement it was stated that the estimated number of workmen affected or likely to be affected by the dispute was six. From this recital in the agreement, Mr. Kakkar contended that this was merely a dispute between the management and six specified employees. For this reason it was contended that it was not an industrial dispute. On the other hand, in Para. 12 of Sri Mela Ram's counter-affidavit, it is stated that a representation was made for the reinstatement of respondents 2 to 7. The representation was signed by about 150 employees of the petitioner tea estate. Representation to the petitioner-tea estate was also made in this respect by the Harbanswala Tea Estate Mazdoor Union and the Chai Bagan Mazdoor Union, Dehra Dun. There is no particular reason for not accepting the facts stated in Para. 12 of the counter-affidavit of Sri Mela Ram.

6. It is common ground that there was voluntary reference of a dispute to arbitration. Section 5B of the Act provides for voluntary reference of disputes to arbitration. Form V in the Uttar Pradesh Industrial Disputes Rules, 1957, gives a model form for an arbitration agreement. On comparing annnexure B with form V given In the rules, it becomes clear that annexure B was drawn up on the lines of form V given in the rules. Rule 8 also deals with arbitration agreement. At the top of annexure B we find mention of form V, Section 5B and Rule 8. It is therefore obvious that parties entered into an agreements, as contemplated by Section 5B of the Act. In this connexion, Mr. Kakkar drew my attention to Clause (iii) of the agreement. Clause (iii) ran thus:

Name of the union, if any, representing the workmen in question. None.

Mr. Kakkar contended that, in view of the agreement between the parties that nobody was to represent the workmen, the dispute between the parties could not be treated as an industrial dispute. It may be that parties agreed that no official of a trade union should represent the workmen during proceedings before the arbitrator. But that does not alter the nature of the dispute. We saw from Sri Mela Ram's counter-affidavit that initially the cause of the six workmen was taken up by as many as 160 workmen, and also by two trade unions. There is, therefore, no difficulty in looking upon the dispute between the parties as an industrial dispute. According to Clause (v) of the agreement, only six workmen were affected or likely to be affected by the dispute. This recital merely meant that only six workmen were directly involved in the dispute. That fact need not affect the nature of the dispute, in view of the form of the arbitration agreement, it must be held that there was an industrial dispute. That dispute could, therefore, be disposed of, as provided in Section 5B and other provisions of the Act.

7. The award has been filed as annexure D to the affidavit. Annexure D shows that the Chai Bagan Mazdoor Union (hereafter referred to as mazdoor union) was permitted to represent the six workmen during the proceedings before the arbitrator. Mr. Kakkar contended that the procedure adopted by the arbitrator in permitting the mazdoor union to appear during arbitration proceedings was against the express terms of the agreement Mr. Kakkar pointed out that, according to Clause (iii) of the agreement, no union represented the six workmen. Nonetheless the mazdoor union was permitted by the arbitrator to represent the six workmen during arbitration proceedings.

8. The arbitrator relied upon Rule 40. Rule 40 provides for representation of parties. Sub-rule (1) of Rule 40 runs thus:

The parties may, in their discretion, be represented before a board, labour court or tribunal....

The arbitrator was not a board, a labour court, or a tribunal. So the present case was not governed by Rule 40. In view of Clause (iii) of the agreement, the arbitrator would have been well advised if he had refused the mazdoor union permission to represent the six workmen during the arbitration proceedings.

9. The question, however, remains whether the irregularity is sufficient to vitiate the arbitration proceedings. In 'Russell on Arbitration,' 16th Edn., we find the following passage on p. 112:

Where the submission prescribes the arbitrator's powers or duties, he must strictly observe and comply with the term of it. If the agreement of reference directs that the arbitrator shall view the premises which are the subject of the dispute within a certain time before proceeding with the reference, he ought to view within the prescribed period, otherwise it may after wards be urged against the validity of the award that he has not acted in pursuance of the powers entrusted to him.

10. Clause (iii) of the agreement (annexure B) no doubt mentioned that no union would represent the workmen. But it is doubtful whether Clause (iii) was in the nature of a limitation on the powers or duties of the arbitrator. It may be that on the date of the agreement it was understood by the parties that no union would represent the workmen during arbitration proceedings. But that clause need not prevent the arbitrator from permitting a trade union from representing the workmen during arbitration proceedings. In Para. 31 of the affidavit it was stated that the procedure was to the grave prejudice to the petitioner. In Para. 35 of the affidavit it is stated:

The proceedings were delayed and the award was made on 15 January 1960, nearly one and a half years later. The delay in disposal of the arbitration proceedings has fastened undue financial liability on the management of the said tea estate.

The delay in the disposal of the reference to arbitration was regrettable. However, I do not think that the petitioner was seriously prejudiced on merits daring the proceedings before the arbitrator. I understand that Sri Mehra represented the petitioner before the arbitrator. The petitioner should have had, therefore, no difficulty in putting forward its case before the arbitrator.

11. I am prepared to assume that the arbitrator committed an irregularity in not complying with Clause (iii) of the agreement. But I do not think that that irregularity is sufficient to vitiate the proceedings before the arbitrator.

12. The arbitrator directed that the workmen should be reinstated within fifteen days of the date of the publication of the award by the State Government. Section 6A deals with commencement of the award. Sub-section (1) of Section 6 states:

An award shall become enforceable on the expiry of thirty days from the date of its publication under Section 6.

Under Section 6A, the petitioner was entitled to get thirty days from the date of publication for carrying out the directions of the award. But the arbitrator allowed only fifteen days. Mr. K.P. Agarwal appearing for the opposite parties conceded that the direction given by the arbitrator as regards the commencement of the award was not in accordance with Section 6A of the Act. However, the award was published in the Uttar Pradesh Gazette dated 27 February 1960. More than a year has passed since the publication of the award by the State Government. This writ petition was admitted on 21 March 1960. An interim stay was granted. That interim stay has remained in force till today. So it makes no practical difference whether the award allowed fifteen days or thirty days as required by Section 6A of the Act. Thus all the contentions advanced on behalf of the petitioner against the validity of the award fall.

13. The petition is dismissed with costs. (One set of costs in favour of opposite party 1, and another set of costs in favour of opposite party 8.) The stay orders, dated 21 March 1960 and 20 May 1960, are vacated.


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