Avadh Behari Rohatgi, J.
(1) Here we are concerned with an arbitrator's award made under section 10-A of the Industrial Disputes Act (the Act). The validity of the award is being questioned on the ground that the award gives no reasons and a court is entitled to know the reasons of the arbitrator for arriving at a particular conclusion.
(2) These are the facts. Jamiat-e-Ulernai Hind, an organisation of Muslim divines, has an official organ a daily newspaper in Urdu called the Aljamiat. Des Raj Wadhawan respondent No. 2 was working with them in the press as advertisement manager. He joined their service many years ago. The terms and conditions on which Wadhawan was working for them were settled from time to time by agreement between the parties. The last such agreement was executed on May 17, 1965. It came into force from June 1. 1965.
(3) The management of the newspaper thought that Wadhawan was guilty of breaches of the agreement. On December 5, 1966, the management asked Wadhawan to hand over the charge to another person. In this way his services were terminated.
(4) Wadhawan went to the conciliation officer. The officer started conciliation proceedings. Before the conciliation officer the manager of the press appeared. At the outset he raised an objection. It was that Wadhawan was not a workman as defined in the Act (s. 2(s)). He said that Wadhawan had no right to raise an industrial dispute.
(5) At the suggestion of the conciliation officer the management and Wadhawan entered into an agreement under section 10-A of the Act. Both parties agreed to refer the dispute to the arbitration of Shri Gopi Nath Aman, respondent No. 1. The following three specific matters in dispute were referred :
1. Whether Des Raj Wadhawan was a workman under the Industrial Disputes Act ?
2.If so, whether his services were terminated in a wrongful and illegal manner ?
3.Whether Shri Des Raj Wadhawan is entitled to any compensation or any relief and what directions are necessary in this respect
This agreement was duly published in the Delhi Gazette on February 23,1967.
(6) The arbitrator entered upon the reference. The management requested him to decide item no. (a) as a preliminary issue before taking up the remaining items. The arbitrator agreed. He heard both parties. He perused the agreement of service. His attention was drawn by the lawyers appearing before him to the judicial decisions on the point.
(7) The arbitrator gave his award on April 29, 1968. He held that Wadhawan was a workman. After reciting the request made to him he gave his award in these words :
'Ihold that Shri Wadhawan is covered by the definition of an employee within the meaning of the Act. I have reached this conclusion after going through the terms of agreement between the parties and case law produced by either side.'
(8) On the preliminary point this was his decision. Then he called upon the management to file a statement of account to show what payments had been made to Wadhawan and what was due to him so that he could reach a final conclusion on the remaining points in dispute.
(9) Against the award on the preliminary point the management brought a writ petition in this court on July 16, 1968 under Art. 226 and 227 of the Constitution. The management contends that the award of the arbitrator is liable to be quashed.
(10) Counsel for the management has raised three points. In the first place he submits that the arbitrator's decision is a non-speaking award. It gives no reasons and is thereforee bad as it does not enable the court to know what were the thought processes of the arbitrator by which he arrived at a conclusion in favor of Wadhawan.
(11) Secondly, counsel maintains that the question whether Wadha- wan is a workman or not is a jurisdictional fact and on it depends the further question whether he is entitled to the reliefs open to him under the industrial law.
(12) Thirdly, counsel invites me to read the terms and conditions of the agreement executed between the parties on June 1, 1965, and come to my own independent conclusion on the question whether Wadhawan is a workman or not.
(13) In the forefront of his arguments the counsel attacked the award on the ground that there was no decision by the arbitrator holding that Wadhawan is a workman. The arbitrator, he submits, has held Wadhawan to be an 'employee' and that is a term unknown to the Act. It is true that the arbitrator has described Wadhawan as an 'employee' but I have no doubt in my mind that what he was saying was that he is a 'workman' within the meaning of the Act. His decision which I have set out above is quite intelligible and clear if we look at it in the context of point (a). He was asked to give his decision on the preliminary point. The preliminary point is whether Wadhawan is a workman under the Act. The arbitrator's answer is in the affirmtive. thereforee, the use of the word 'employee' in place of 'workman' does not matter much. He has decided the point against the management and in favor of Wadhawan. I will thereforee attach no importance to the mere use of the word 'employee' in place of 'workman'.
(14) Next counsel says that an arbitrator ought to record reasons and if no reasons are given the award is bad. In this connection he has referred me to Rohtak Delhi Transport v. Risal Singh, . A division bench (A. N. Grover and I. D. Dua JJ) of the Punjab High Court in that case took the view that the decision of an arbitrator under s. 10-A is quasi-judicial and thereforee reasons must be given by the arbitrator. If that is not done the award is liable to be quashed. In that case the award of the arbitrator had awarded compensation without slating reasons thereforee. The court struck down the award. This ruling no doubt supports the management. In the Punjab decision Grover J. said :
'THUSarbitrariness or partial exercise of powers or taking into consideration extraneous circumstances cannot be eliminated and neither the parties concerned nor this court to which the matter has been brought up under Article 226 have any means of ascertaining how the sum of Rs. 2700 was determined as the compensation to be paid to respondent No. 2 by the petitioner, with the result that the impugned order must be struck down,...............'
Dua J. in his concurring judgment said :
'...........On the whole I am inclined, as at present advised, to consider as preferable the view that the law does not intend to confer on the arbitrator under the Act wholly uncontrolled and absolute power to make the award completely bare of reasons so as to render it incapable of judicial scrutiny by this Court under Article 226.'
(15) With great respect to the learned judges of the Punjab High Court I am unable to subscribe to their line of reasoning. There is no provision in the Act which makes it obligatory on the part of the arbitrator under s. 10-A to give reasons for his decision, it would be putting an intolerable burden on the arbitrator if he were required to give reasons. The arbitrator may be a layman or a lawyer. In the Punjab decision he was a lawyer. He can as well be a layman. To say that a lay arbitrator must give reasons for his award when the statute does not require him will be too much to ask. He may find it difficult to articulate his ideas and mental processes. The court cannot compel him to give reasons. Many persons decide by intutive knowledge and instinct. They have a quick comprehension without orderly reason, thought or cogitation.
(16) Under the Arbitration Act the law has never insisted upon the arbitrators to give reasons. Non-speaking awards have always been upheld. It is true that the application of the Arbitration Act of 1940 has expressly been excluded from arbitrations under the Industrial Disputes Act [see s. 10-A(5)] But the definition of the term 'award' as given in s. 2(b) does not indicate that an industrial award is to be any different from an award as we know it under the law of arbitration.
(17) The essence of arbitration is that some dispute is referred by the parties for settlement to a tribunal of their own choosing, instead of to a court. In order that such a method of settling disputes shall be effective, it is necessary that some assistance should be lent by the ordinary machinery of law; in particular, recourse to this machinery may be necessary for enforcing the arbitrator's decision. Law lends official status to duly constituted arbitrations. This is what the Act does by prescribing the procedure in s. 10-A which must be followed before the decision can become effcetive. Sections 17-A and 18 of the Act deal with the operation, commencement and the binding character of the arbitration award. But nowhere do we find any requirement- mandatory or directory that the arbitrator must give reasons for his award. Section 11 on the other hand points in the direction that the arbitration is free to give or refuse to give reasons. He is not bound by any particular procedure. He can evolve his own procedure. In inc last analysis he is master of procedure and law and facts,
(18) On the question whether an arbitrator under s. 10-A is a statutory arbitrator and a writ lies against him under Article 226 of the Constitution judges took different sides. Some held that he is a private arbitrator and neither prohibition nor certiorari will issue to him [See A.T.K.M. Employees Association v. Musaliar Industries (P) Ltd., : (1961)ILLJ81Ker and Angle American Tea Trading Co. Ltd., v. Its Workmen, 1963 II Llj 7521 . Others held that he is a statutory arbitrator and certiorari can issue against him. This was the preponderant view. [Sec Koru v. Standard Tile and Clay Works, 1964 I Llj 102. Rohtas Industries Staff Union v. State of Bihar, : (1962)IILLJ420Pat , R. J. Mills v. Workmen, : AIR1968Pat66 . K. P. Singh v. S. K. Gokhalc, : (1970)ILLJ125MP .
(19) Those judges who took the view that he is a statutory arbitrator and writ lics followed the Supreme Court decision in Engineering Mazdoor Sabha v. Hind Cycle Ltd., : (1962)IILLJ760SC . Gajendragadkar J. speaking for the court there said :
'ARTICLE 226 under which a writ of certiorari can be issued in an appropriate case, is, in a sense, wider than Article 136, because the power conferred 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 Article 226(1), an appropriate writ can be issued to any person or authority, including in appropriate cases any Government, within the territories prescribed. thereforee, even if the arbitrator appointed under Section 10A is not a tribunal under Article 136 in a proper case, a writ may lie against his award under Art. 226.'
(20) Happily the cleavage of judicial opinion on this point has now been resolved by the Supreme Court in its recent decision : Rohtas Industries v. Its Union, : (1976)ILLJ274SC . Following its earlier decision in Engineering Mazdoor Sabha supra Krishna lyer J. speaking for the court said :
'IT is legitimate to regard such an arbitrator now as part of the methodology of the sovereign's dispensation of justice, thus falling within the rainbow of statutory tribunals amenable to judicial review.'
On the maintainability of a writ petition under Article 226 the court said:
'SUFFICEit to say, an award under section 10A is not only not invulnerable but more sensitively susceptible to the writ lancet being a quasi-statutory body's decision. Admittedly, such an award can be upset if an apparent error of law stains its face.'
(21) Referring to its previous decisions in Bungo Steel Furniture v. Union of India, : 1SCR633 and Bharat Barrel and Drum Mfg. Co. v. L. K. Bose, : 1SCR739 the Supreme Court has held that the award under s. 10A can be set aside if it discloses an error of law on its face. It was said :
'INsimple terms, the Court has to ask itself whether the arbitrator has not tied himself down to an obviously unsound legal proposition in reaching his verdict as appears from the face of award.'
In the course of his judgment Krishna lyer J. said :
'IFat its face value, the award appears to be based on an erroneous finding of law alone, it must fail. The clincher is that the factual conclusion involving a legal question must necessarily be wrong in point of law. Even though the award contains no statement of the legal proposition, if the facts found raise a clear point of law which is erroneous on the face of if, the court may rightly hold that an error on the face of the award exists and invalidates.'
In that case there was a strike in two connected industries. It came to an end by an agreement. The management and the workers agreed to refer the following two questions to the arbitration of two retired judges of the Calcutta High Court under s. 10A :
1.THEclaim of the workers for wages for the period of strike ; and
2.the claim of the management for compensation for its losses flowing from the strike.
(22) The arbitrators made a speaking award both on facts and on law. They held that (1) the strike was illegal and the workmen participating in the strike are not entitled to wages and salaries for the period of the strike, and (2) that the company is entitled to recover from the workmen participating in the strike compensation assessed at Rs. 80,000 in one industry and Rs. 6,90,000 in the other. This was estimated to be the loss of profits suffered by the manufacturing business of the management.
(23) The Mazdoor Sangh challenged the award as illegal and bad by filing two writ petitions in the High Court. The High Court (Ramaswami Cj and Untwalia J) held that that part of the award which directed payment of compensation by the workers to the management was void. Accordingly it was quashed. (See Rohtas Industries Staff Union v. State of Bihar, : (1962)IILLJ420Pat for the High Court judgment) .
(24) The Industries came to the Supreme Court by special leave under Art. 136 of the Constitution. The Supreme Court affirmed judgment of the High Court and dismissed both the appeals.
(25) The Supreme Court held that upholding a case for compention on a rule of the common law, that is, English law was wrong a this was an error apparent on the face of the award. That the works were liable in damages to make good the loss is the logic of the award Compensation could be granted to the management under the common law and not under the Industrial Disputes Act. 'The relief of compensation by proceedings in arbitration is contrary to law and bad.' This was the ratio of their decision. As was said :
'THErule of common law thus necessarily arising on the face of the award is a clear question of law.'
(26) How does the Supreme Court decision bear on the question before us The Supreme Court stressed the need and desirability of a speaking order where considerable numbers arc affected in their substantial rights. This is a facet of natural justice or fair procedure, the court said. But even if the award is not a speaking award and
'IF,as here, you find an erroneous law as the necessary buckle between the facts found and the conclusions recorded, the award bears its condemnation on its bosom............ The inscrutable face of the sphinx has no better title to invulnerability than a speaking face which is a candid index of the mind.'
(27) The test remains as laid down by Williams J in the case of Hodgkinson v. Fernie (1857) 3 Cb 189:140 Er 712 that the award would be set aside 'where the question of law necessarily arises on the face of the award.' If an erroneous legal proposition is the basis of the arbitrator's decision the award is bad. The Supreme Court relied upon Champsey Bhara & Co. v. Jivraj Baloo Spinning and Weaving Co. Ltd., Air 1923 Pc 66 where Lord Dunedin defined an error of law apparent on the face of the record. He said :
'ANerror in law on the face of the award means, in their Lordships' view, that you can find in the award some legal proposition which is the basis of the award and which you can then say is erroneous.'
But the question remains.: Is the arbitrator obliged to record his reasons In Bungo Steel Furniture supra Bhargava J. said :
'IT is now a well settled principle that if an arbitrator, in deciding a dispute before him, does not record his reasons and does not indicate the principles of law on which he has proceeded, the award is not on that account vitiated. It is only when the arbitrator proceeds to give his reasons or to lay down principles on which he has arrived at his decisions that the court is competent to examine whether he has proceeded contrary to law and is entitled to interfere if such error in law is apparent on the face of the award itself.'
(28) thereforee it is quite clear that if an arbitrator in deciding a dispute before him does not record his reasons the award is not on that account vitiated. In the present case this is exactly the point. The arbitrator has not given any reasons. Nor has he laid down any principle or proposition of law on which he has proceeded and based himself. It is a non-speaking award, as I have said. All that the arbitrator has said is that Wadhawan is a workman and this conclusion he has reached by reading the agreement of service.
(29) The next important question is: Are we at liberty to see the contract of service Can we look at the contract and search it in order to see whether there is an error of law The counsel invites me to read the contract. I do not think I can do that.. There is a purely general reference to the contract in the award. The contract is not incorporated in the award. If the arbitrator says : 'On the wording of this clause I hold' so-and-so, then 'that clause is impliedly incorporated into the award because he invites the reading of it. (See Union of India v. India Hard Metals Pv. Ltd., 2nd (1975) Ii Del 737 . In Allen Berry Co. v. Union of India, Air 1971 Sc 691 the Supreme Court (15) said:
'BUTa mere general reference to the contract in the award is not to be held as incorporating it' (P. 699).
The court went on to say :
'THErule thus is that as the parties choose their own arbitrator to be the Judge in the dispute between them, they cannot, when the award is good on the face of it, object to the decision either upon the law or the facts. thereforee, even when an arbitrator commits a mistake either in law or in fact in determining the matters referred to him, but such mistake does not appear on the face of the award or in a document appended to or incorporated in it so as to form part of it, the award will neither be remitted nor set aside notwithstanding the mistake.'
(30) To return to the Punjab decision. I think Rohtak Delhi Transport's case supra was wrongly decided. Dua J was of the view that the question was not free from difficulty and it was 'not completely without hesitation' that he agreed with Grover J.
(31) A division bench of the Patna High Court in Rohtas Industries v. Their Workmen, : (1968)ILLJ710Pat has taken a contrary view. They have held that the award cannot be quashed on the ground that the arbitrator has failed to give reasons for his decision. The arbitrator's decision is certainly a quasi-judicial one. But that does not mean that he has to give his reasons for his decision in the award : Dutta J speaking for the court said :
THE'desirability for giving the grounds on which a decision is based does not, ipso facto, lead to the conclusion that such grounds must be given in the quasi-judicial decision of an arbitrator appointed under the Industrial Disputes Act, where there is no specific provision in the law itself to that effect.'
In the course of his judgment he said :
'If the reference is made to a Labour court or a tribunal or National Tribunal such court or Tribunal would be bound to give reasons for its findings in accordance with the provisions of law. If, however, instead of making the reference to either a Labour court or a tribunal or National Tribunal, the parties voluntarily choose a private person, it cannot necessarily follow that such a person also would be bound to give reasons for the decision arrived at by him. Such a person may be chosen merely because the parties expect him to arrive at a proper decision because of his broad common sense or knowledge of a particular industry or for other reasons and he may not have the requisite qualification to express in writing the processes by which or the grounds on basis of which he arrived at his decision.'
(32) It is one thing to say it is desirable that 'as a norm of processual justice' the arbitrators and quasi-judicial tribunals should give reasons, it is quite another that as a rule of law an award is bad because it does not give reasons. I do not think such a broad proposition can be laid down.
(33) The Supreme Court in Rohtas Industries (supra) has settled that an industrial award under s. 10A can be set aside for an error apparent on the face. On this point nearly all the leading Indian and English decisions rendered under the Arbitration Act were reviewed. The principle of law deducible is : Has the arbitrator tied himself down to an obviously unsound legal proposition in reaching his decision and does it appear from the face of the award 'This jurisdiction is one that exists at common law independent of the statute' (Halsbury Laws of England, vol. 2 p. 334 fourth ed.).
(34) But no one has said that the arbitrator's award is liable to be set aside even if no reasons are given and no unsound legal proposition is the basis of the award.
(35) That an industrial award is subject to judicial review under Art. 226 and a private award is not so subject will not make any difference to the law of arbitration which, generally speaking, is the same for both. This is now clear from Rohtas Industries's case (supra). We cannot set aside the award of the arbitrator appointed on a voluntary reference under s. 10A on a new ground hitherto unknown, viz,, that he has not given reasons. That his award is subject to judicial scrutiny does not mean that we invent new heads for setting aside the award. We cannot advance the frontiers of judicial review beyond recognised limits in the law of arbitration.
(36) One well recognised ground for setting the award is an error apparent on the face of the award. That this is a ground both under the industrial arbitration and the Arbitration Act the Supreme Court has now left us in no doubt. If the arbitrator's award is founded on a proposition of law which is erroneous the award can be set aside. One decision which comes to mind is Dr. S. Dutt v. University of Delhi, : 1SCR1236 . There the arbitrator directed specific performance of a contract of personal service which no court of law had the power to order. The award was set aside on the ground that it disclosed an error on the face of it. Rohtas Industries' case (supra) is another of the same kind. Compensation to the management could not be awarded in arbitration under the Act. That part of the award was set aside.
(37) These two cases have a strange similarity. In Dr. Dutt's case (supra) it was argued that an Industrial Tribunal had power in an award made on a reference under the Industrial Disputes Act to direct reinstatement of discharged employees. thereforee, it was submitted that the arbitrator in ordering reinstatement of Dr. Dutt was not wrong in law. The Supreme Court was referred to Western India Automobile Association v. Industrial Tribunal Bombay, 1949 Fcr 321 . The court rejected this argument and said that they were concerned not with an award under the Industrial Disputes Act but with an award under the Arbitration Act 1940. In Rohtas Industries' case (supra) the argument was that compensation can be awarded to the management for the loss caused by the workmen under the law of conspiracy which is well known to the law of torts. This argument was dismissed. It was said that 'claims by employers against workmen on grounds of tortious liability have not found a place in the pharmecopoea of Indian Industrial Law.' (page 437).
(38) In both cases there were inhibitions in law. In Dr. Dutt's case the prohibition was under the Arbitration Act. In Rohtas Industries' case the prohibition was under the industrial law. The arbitrators in both cases went against the law. Their awards disclosed a patent error. The awards were set aside, even though in Dr. Dutt's case no reasons were given. In Hodgkinson v. Fernie (supra) Williams J. said :
'THElaw has for many years been settled, and remains so at this day that, where a cause or matters in difference are referred to an arbitrator whether a lawyer or a layman, he is constituted the sole and final judge of all questions both of law and of fact................ The only exceptions to that rule, are, cases where the award is the result of corruption or fraud, and one other, which though it is to be regretted, is now, I think, firmly established, viz., where the question of law necessarily arises on the face of the award, or upon some paper accompanying and forming part of the award. Though the propriety of this letter may Very well be doubted. I think it may be considered as established.'
(39) Now the regret expressed by Williams J. in Hodgkinson v. Fernie (supra) has been repeated by more than one learned judge, and it is certainly not to be desired, as Lord Dunedin said in Champsey Bhara's case (supra), that the exception should be in any way extended. thereforee, to say that if the award does not give reasons the court will set it aside is to make sharp and deep in roads into the law of arbitration. The essence of arbitration is chat it is a voluntary reference of disputes to a domestic jurisdiction.
(40) In recent time, increasing resort has been had in many countries to the process of arbitration, which involves the submission of disputes to persons standing outside the regular court system. The submission may be entirely voluntary, depending on the free and mutual consent of the parties, or it may be compulsory, if consent is enforced by a legal enactment. In both instances the arbitrators are commonly given a large measure of discretion in adapting their awards to the particular circumstances of the case. The awards are binding and enforceable.
(41) The question may be raised whether arbitration because of the great flexibility and informality of its procedure, signify a contraction of the sphere of the law. To the extent that the arbitrator, in making his decision, is governed by basic rules and principles of law, this need not be the ease. It can be assumed that he will be so guided in many instances, especially when these basic rules at the same time mirror the conceptions of justice prevailing in the particular society.
(42) A lay arbitrator does not know the 'lawyer's law'. But he knows how to accomplish a just result. His is a domestic forum. His award may be nothing but 'an expression of personal reactions and ad hoc responses to the concrete fact situation without any reliance on general pointers and standards.' The award of such an arbitrator can be characterised as an act of 'justice without law', (if a just result is in fact accomplished). Dean Pound has told us that there can be a concept of justice without law. (Roscoe Pound: Jurisprudence Vol. Ii pp. 352 359).
(43) I am not suggesting for a moment that the arbitrator is not bound by the law. He is as much bound as the judge. No one is above the law. But if he does not record his reasons and no erroneous proposition of law is the basis of his award the arbitrator's decision cannot be quashed by certiorari.
(44) Counsel next contended that it was a jurisdictional fact whether Wadhawan was a workman or not. There I think he is right. But that will not make any difference to the arbitrator's award. Whether a fact is jurisdictional or not does not matter to the arbitrator. He can decide the jurisdictional fact in the same manner as he will decide the other two disputes (b) and (c) submitted to him. It is not contended that his powers are different in relation to a jurisdictional fact. The points submitted for his decision do not make any such distinction as is now sought to be made before me. An arbitrator is not bound to give reasons as a court of law is wont to do. It is enough for him to say that on the terms of the agreement between the parties he has reached the conclusion that Wadhawan is a workman. This I think is sufficient if he does not want to give reasons. Nothing more is required of him.
(45) The third contention of the counsel is that I should come to an independent conclusion of my own after reading the agreement of service. I am afraid I cannot do this. This is not open to a court under Art. 226 and 227 of the Constitution. I am not sitting as an appellate court. This is, properly speaking, the function of appellate review.
(46) Suppose I come to a different conclusion. Can I set aside the award I think not. In Halsbury it is said :
'WHEREthe question referred for arbitration is a question of construction, which is generally speaking, a question of law. the arbitrator's decision cannot be set aside only because the court itself would have come to a different conclusion.'
(Laws of England Vol. 2, p. 334 (4th ed.)
(47) Counsel has referred me to Delhi Transport Corporation v. Delhi Administrator and others, 2nd (1973) 1 Del 838 and M/s. Premier Irrigation Equipment (P) Ltd. v. The Presiding Officer, Labour Court and others, (1971) 1 Del 489 in support of his contention that it is open to this court to find out from the terms of the agreement of service whether the arbitrator has arrived at a correct conclusion. I cannot accept this submission for the simple reason that this matter was within the province of the arbitrator. He has not given any reasoning with which this court can find fault. The two rulings cited by the counsel do not relate to a case under s. 10-A of the Act. Section 10-A deals with the case of an arbitrator appointed by a voluntary reference. thereforee, his case is entirely different from other tribunals and authorities.
(48) In the leading decision of R. V. Northumberland Compensation Appeal Tribunal ex. p. Shaw 1952 (1) K.B. 338 Denning Lj said :
'If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision.'
(49) I cannot find any error apparent on the face of the award. Nor can I find fault with the decision of the arbitrator on the ground that he did not give reasons. I would thereforee dismiss the writ petition with costs. Counsel's fee Rs. 250.
(50) Eight years have passed since the decision was given by the arbitrator on the preliminary point. The matter has now to go back I to him. I direct the parties to appear before the arbitrator on September 11, 1976 at 11 A.M. at his residence. A copy of this order be sent to the arbitrator.