Arbitration as a Method of Adjudication of Industrial Disputes: An Analysis

Introduction

The Industrial Disputes Act, 1947¹, which is more than 72 years old, contemplates both arbitration and conciliation as an alternate means of dispute resolution. The purpose of this article is to analyse the mechanism laid down therein as against the aegis of the Arbitration and Conciliation Act, 1996² and to understand whether arbitration as a dispute resolution option in the Industrial Disputes Act, 1947 is desirable and consistent in keeping with today’s times.

The important provisions of the Industrial Disputes Act

Object. — The object of the Industrial Disputes Act, 1947 (ID Act) as its Preamble indicates, is to make provision for the investigation and settlement of industrial disputes, which also means an adjudication of such disputes. The ID Act envisages collective bargaining, and contracts between the Union representing the workmen and the management, a matter which is outside the realm of the common law or the Indian law of contract.

Important definitions

“Award”³ means an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under Section 10-A⁴;

“Industrial dispute”⁵ means 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;

“Settlement”⁶ means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to an officer authorised in this behalf by the appropriate Government and the conciliation officer;

“National Tribunal”⁷ means a National Industrial Tribunal constituted under Section 7-B⁸;

“Tribunal”⁹ means an Industrial Tribunal constituted under Section 7-A¹⁰ and includes an Industrial Tribunal constituted before the 10th day of March, 1957 under this Act.

Chapter II of the ID Act in brief

Chapter II provides for the authorities under the Act, namely, for the constitution of the Works Committee, Boards of Conciliation, Courts of Inquiry, Labour Courts, Tribunals and National Tribunals as also for the appointment of conciliation officers. Different kinds of authorities having very varied and extensive powers in the matter of settlement and adjudication of industrial disputes have been constituted. Since the time of the earliest decisions of the Federal Court and the Supreme Court of India, it has been recognised fully well that the powers of the authorities deciding industrial disputes under the Act are very extensive much wider than the power of a civil court while adjudicating a dispute which may be an industrial dispute. The Labour Courts and the Tribunals to whom industrial disputes are referred by the appropriate Governments under Section 10¹¹ of the ID Act can create new contracts, lay down new industrial policy for industrial peace, order reinstatement of dismissed workmen which ordinarily a civil court could not do. The procedure of raising an industrial dispute starts with the submission of a charter of demands by the workmen concerned. The conciliation officer can be and is often made to intervene in the matter first. He starts conciliation proceeding under Section 12¹². If a settlement is arrived at during the course of the conciliation proceeding, it becomes binding on all workmen under Section 18(3)¹³ of the Act. If there is a failure of conciliation, the appropriate Government is required to make a reference under Section 10(1) of the Act. The award published under Section 17(1) becomes final and cannot be called into question by any court in any manner whatsoever as provided in the sub-section.

Voluntary reference of disputes to arbitration

Chapter III provides for the reference of disputes to the Boards, courts or Tribunals by the appropriate Government and also voluntary reference of disputes of arbitration under provisions of Section 10-A. It may be noted that Section 10-A excluding sub-sections (1-A), (3-A) and (4-A) have been added to the parent Act by Act 36 of 1956. After about eight years, sub-sections (1-A), (3-A) and (4-A) came to be added by the amending Act 36 of 1964.

Section 10-A of the ID Act (as applicable in Maharashtra) lays down as under:

10-A. Voluntary reference of disputes to arbitration.—(1) Where any industrial dispute exists or is apprehended and the employer and the workmen agree to refer the dispute to arbitration, they may, at any time before the dispute has been referred under Section 10 to a Labour Court or tribunal or National Tribunal, by a written agreement, refer the dispute to arbitration and the reference shall 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 the arbitration agreement.

(1-A) Where an arbitration agreement provides for a reference of the dispute to an even number of arbitrators, the agreement shall provide for the appointment of another person as umpire who shall enter upon the reference, if the arbitrators are equally divided in their opinion, and the award of the umpire shall prevail and shall be deemed to be the arbitration award for the purposes of this Act.

(2) An arbitration agreement referred to in sub-section (1) shall be in such form and shall be signed by the parties thereto in such manner as may be prescribed.

(3) A copy of the arbitration agreement shall be forwarded to the appropriate Government and the conciliation officer and the appropriate Government shall, within one month from the date of the receipt of such copy, publish the same in the Official Gazette.

(3-A) Where an industrial dispute has been referred to arbitration and the appropriate Government is satisfied that the persons making the reference represent the majority of each party, the appropriate Government may, within the time referred to in sub-section (3) issue a notification in such manner as may be prescribed; and when any such notification is issued, the employers and workmen who are not parties to the arbitration agreement but are concerned in the dispute, shall be given an opportunity of presenting their case before the arbitrator or arbitrators.

(4) The arbitrator or arbitrators shall investigate the dispute and submit to the appropriate Government the arbitration award signed by the arbitrator or all the arbitrators, as the case may be.

(4-A) Where an industrial dispute has been referred to arbitration and a notification has been issued under sub-section (3-A), the appropriate Government may, by order, prohibit the continuance of any strike or lockout in connection with such dispute which may be in existence on the date of the reference.

(5) Nothing in the Arbitration Act, 1940¹⁴ (10 of 1940), shall apply to arbitrations under this section.

(emphasis supplied)

Consequent to the additions of these provisions, several corresponding changes were also made in the other provisions of the Act. Section 2(b) which defines an award was amended by the addition of the words “it includes an arbitration award made under Section 10-A“. As a result of this amendment of the definition, an arbitration award has now become an award for all purposes of the Act attracting the application of Sections 17¹⁵, 17-A¹⁶, 18(2)¹⁷, 19(3)¹⁸, 21¹⁹, 29²⁰, 30²¹, 33²², 33-C²³ and 36-A²⁴ of the Act. It may be noted that Sections 23²⁵ and 24²⁶ of the Act as originally stood provided power to the appropriate Government to prohibit strikes and lockouts, but they could not be invoked in relation to proceedings before the arbitrator. So, these sections were also amended to bring them in harmony with sub-sections (3-A) and (4-A) of Section 10-A. The Government could now by order prohibit continuance of any strike or lockout in connection with a dispute referred to arbitration and in respect of which a notification has been issued under sub-section (3-A).

Despite this position, the legislature did not make corresponding changes to Section 17-B²⁷ of the Act which is an important provision from the point of view of the workmen on account of which the option of arbitration is rendered less preferable to other adjudication options, as we will subsequently see.

Sub-section (4) of Section 10-A of the Act empowers the arbitrator to investigate and adjudicate upon the industrial dispute referred to him under the arbitration agreement. He shall submit an award signed by him. If there is more than one arbitrator, all of them must sign the award. The award shall be submitted to the appropriate Government. It is also to be published like any other award under the Act in accordance with the provisions of sub-section (1) of Section 17. Section 17-A provides that an award (including an arbitration award) shall become enforceable on the expiry of 30 days from the date of its publication. Sub-section (2) of Section 18 makes an arbitration award which has become enforceable, and binding on the parties to the agreement. Sub-section (3) of Section 18 goes a step further. In a case where notification has been issued under sub-section (3-A) of Section 10-A, the arbitration award would be binding on all parties to the dispute as well as on all other persons summoned to appear in the proceedings as parties to the dispute. Such an award will also bind the successors or assigns of the employer and all present and future workmen employed in the establishment.

It is also interesting to note that sub-section (5) of Section 10-A specifically ousts the application of the provisions of the Arbitration Act, 1940 to arbitration under the said section. It is further interesting to note that even as on today the provisions of the Act as they stand on the statute book, still make a reference to the old Arbitration Act, 1940 and not the Arbitration and Conciliation Act, 1996.

Other relevant provisions of the ID Act concerning arbitrators

Section 11²⁸ deals with the procedure and powers of conciliation officers, Boards, courts and Tribunals and Section 11(1) states as under:

(1) Subject to any rules that may be made in this behalf, an arbitrator, a Board, court, Labour Court, tribunal, or National Tribunal shall follow such procedure as the arbitrator or other authority concerned may think fit.

Section 17 of the ID Act deals with the publication of reports and awards and states as under:

(1) Every report of a Board or court together with any minute of dissent recorded therewith, every arbitration award and every award of a Labour Court, tribunal or National Tribunal shall, within a period of thirty days from the date of its receipt by the appropriate Government, be published in such manner as the appropriate Government thinks fit.

(2) Subject to the provisions of Section 17-A, the award published under sub-section (1) shall be final and shall not be called in question by any court in any manner whatsoever.

Thereafter, Section 17-A(1) of the ID Act states that an award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its publication under Section 17.

Sections 23 and 24 deal with the general prohibition of strikes and lockouts and states that during the pendency of arbitration proceedings before an arbitrator and two months after the conclusion of such proceedings, where a notification has been issued under sub-section (3-A) of Section 10-A.

Section 33²⁹ of the Act provides that conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings and states as under:

(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before an arbitrator or a Labour Court or tribunal or National Tribunal in respect of an industrial dispute, no employer shall,

(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or

(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.

(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the Standing Orders applicable to a workman concerned in such dispute or, where there are no such Standing Orders, in accordance with the terms of the contract, whether express or implied, between him and the workman,

(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or

(b) for any misconduct not connected with the dispute, or discharge or punish, whether by dismissal or otherwise, that workman:

Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.

(3) Notwithstanding anything contained in sub-section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute,—

(a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings; or

(b) by discharging or punishing, whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending.

Explanation.— For the purposes of this sub-section, a “protected workman”, in relation to an establishment, means a workman who, being a member of the executive or other office-bearer of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf.

(4) In every establishment, the number of workmen to be recognised as protected workmen for the purposes of sub-section (3) shall be one per cent of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognised as protected workmen.

(5) Where an employer makes an application to a conciliation officer, Board, an arbitrator, a Labour Court, tribunal or National Tribunal under the proviso to sub-section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, within a period of three months from the date of receipt of such application, such order in relation thereto as it deems fit:

Provided that where any such authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing, extend such period by such further period as it may think fit:

Provided further that no proceedings before any such authority shall lapse merely on the ground that any period specified in this sub-section had expired without such proceedings being completed.

Section 33-C(2)³⁰ of the ID Act is the execution remedy available with the workman and states as under:

33-C. (2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government within a period not exceeding three months:

Provided that where the Presiding Officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.

Provisions of the ID Act which do not include arbitration/arbitral awards from their ambit

Section 2-A³¹ of the ID Act: Dismissal, etc., of an individual workman to be deemed to be an industrial dispute:

1. Where any employer discharges, dismisses, retrenches, or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.

2. Notwithstanding anything contained in Section 10, any such workman as is specified in sub-section (1), may make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of forty-five days from the date he has made the application to the conciliation officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government.

3. The application referred to in sub-section (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub-section (1).

(emphasis supplied)

It is pertinent to note at this point that under Section 2-A of the ID Act, the workman can only approach the Labour Court and the Industrial Tribunal directly and as such, an arbitrator is excluded from the purview of Section 2-A of the Act (this point will be considered later).

Section 17-B³² of the ID Act deals with payment of full wages to workman pending proceedings in higher courts and states thus:

17-B. Where in any case, a Labour Court, tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such court:

Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be.

As such, under Section 17-B of the ID Act, the High Court has not been expressly conferred with the statutory power to grant interim wages to a workman aggrieved by an order of stay granted to an arbitral award, even though such power may be definitely vested in the High Court under Article 226³³ of the Constitution of India.

Section 19³⁴ of the ID Act deals with period of operation of settlements and awards and Section 19(4) thereof states as under:

19. (4) Where the appropriate Government, whether of its own motion or on the application of any party bound by the award, considers that since the award was made, there has been a material change in the circumstances on which it was based, the appropriate Government may refer the award or a part of it to a Labour Court, if the award was that of a Labour Court or to a tribunal, if the award was that of a tribunal or of a National Tribunal for decision whether the period of operation should not, by reason of such change, be shortened and the decision of Labour Court or the Tribunal, as the case may be, on such reference shall be final.

As such, a reference regarding disputes on settlement cannot be referred to arbitration.

Section 25-M³⁵ deals with prohibition of lay off and Section 25-M(7) states as under:

25-M. (7) The appropriate Government or the specified authority may, either on its own motion or on the application made by the employer or any workman, review its order granting or refusing to grant permission under sub-section (4) or refer the matter or, as the case may be, cause it to be referred, to a tribunal for adjudication:

Provided that where a reference has been made to a tribunal under this sub-section, it shall pass an award within a period of thirty days from the date of such reference.

In view of the fact that a tribunal is a specific term which is an “exhaustive” term having used the words “tribunal means…” in Section 7³⁶, both Labour Court and arbitrator are excluded from the purview of the aforesaid provision.

Character of the Arbitral Tribunal and that of the decisions passed by it

It is now important to understand the character of the Arbitral Tribunal constituted under Section 10-A of the Act and the nature of the award that is passed or that of the decisions given by the Arbitral Tribunal. This question arose before the Supreme Court of India in Engineering. Mazdoor Sabha v. Hind Cycles Ltd.³⁷. In this case, the challenge before the Supreme Court was to the arbitral awards passed by the arbitrators which gave rise to the respective civil appeals before the Supreme Court. It was the appellants’ contention that the arbitrators are a “tribunal” within the meaning of Article 136³⁸ of the Constitution of India whereas the respondents contended that they are not. In support of the proposition that an appeal is maintainable under Article 136 of the Constitution of India from an award, or a decision made by the arbitrator, the following broad submissions were made on behalf of the appellants:

1. The decisions given by an arbitrator appointed under Section 10-A of the Act are quasi-judicial decisions and they amount to a determination or order for the purpose of Article 136(1).

2. Section 10-A gives statutory recognition to the appointment of the arbitrator and the consequential changes made in the Act and the statutory rules framed thereunder clearly show that he has been clothed with quasi-judicial powers and his proceedings are regulated by rules of procedure. Therefore, it would be appropriate to treat him as a statutory arbitrator and as such, a writ of certiorari would lie against his decision under Article 226. For this reason, the arbitrator’s decision was also amenable to a challenge under Article 136 of the Constitution of India.

3. On a fair and reasonable construction of Section 10-A, it should be held that the arbitrator cannot be distinguished from an Industrial Tribunal and is therefore, a tribunal under Article 136.

On the other hand, the respondents contended that the arbitrator appointed under Section 10-A of the Act is no less or no more than a private arbitrator appointed under the Arbitration Act, 1940 and no writ can be issued under Article 226, much less any order under Article 136(1) can be passed on the decisions/award made by such an arbitrator. Explaining the scope of Article 136 of the Constitution of India, the Supreme Court observed that for invoking Article 136(1), two conditions must be satisfied. The proposed appeal must be from any judgment, decree, determination, sentence or order, that is to say, it must not be against a purely executive or administrative order. If the determination or order giving rise to the appeal is a judicial or quasi-judicial determination or order, the first condition is satisfied. The second condition imposed by the article is that the said determination or order must have been made or passed by any court or tribunal in the territory of India. These conditions, therefore, require that the act complained against must have the character of a judicial or quasi-judicial act and the authority whose act is complained against must be a court or a “tribunal”. Unless both the conditions are satisfied, Article 136(1) cannot be invoked.

As regards the first condition required for invoking Article 136(1), the Supreme Court held that the decisions of the arbitrators to whom industrial disputes are voluntarily referred under Section 10-A of the Act are quasi-judicial decisions, and they amount to a determination or order. The real bone of contention before the Supreme Court was, however, the character of the authority of the arbitrator which decided the disputes and not so much the character or the nature of the decisions it makes.

Having regard to the several provisions contained in the Act and the rules framed thereunder, the Supreme Court observed that an arbitrator appointed under Section 10-A cannot be treated to be exactly similar to a private arbitrator to whom a dispute has been referred under an arbitration agreement under the Arbitration Act. The arbitrator under Section 10-A is clothed with certain powers, his procedure is regulated by certain rules and the award pronounced by him is given by statutory provisions, a certain validity, and a binding character for a specified period. Having regard to these provisions, the Supreme Court further observed that it may perhaps be possible to describe such an arbitrator, as in a loose sense, a “statutory arbitrator” and to that extent, the argument that he is no more and no less than a private arbitrator under the Arbitration Act, was rejected.

But the Supreme Court went on to hold that the fact that the arbitrator under Section 10-A is not exactly in the same position as a private arbitrator does not mean that he is a tribunal under Article 136. Even if some of the trappings of a court are present in his case, he lacks the basic, the essential and the fundamental requisites in that behalf because he is not invested with the State’s inherent judicial power, which is a prerequisite for an adjudicatory authority to be a “tribunal”. The arbitrator under Section 10-A is appointed by the parties and the power to decide the dispute between the parties who appoint him is derived by him from the agreement of the parties and from no other source. He is not a tribunal because the State has not invested him with its inherent judicial power and the power of adjudication which he exercises is derived by him from the agreement of the parties. His position, thus, may be said to be higher than that of a private arbitrator and lower than that of a statutory tribunal. A statutory tribunal is appointed under the relevant provisions of a statute which also compulsorily refers to its adjudication certain classified classes of disputes. That is the essential feature of what is properly called statutory adjudication or arbitration.

As regards the argument that since the arbitrator’s decisions are quasi-judicial decisions and therefore amenable to a writ of certiorari under Article 226, the Supreme Court observed that Article 226, is, in a sense, wider than Article 136. 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. Therefore, even if the arbitrator appointed under Section 10-A is not a tribunal under Article 136, in a proper case, a writ may lie against his award under Article 226. That is why the argument that a writ may lie against an award made by such an arbitrator under Article 226, in the opinion of the Supreme Court, did not materially assist the appellants’ case that the arbitrator is a tribunal under Article 136.

Coming to the question whether an arbitrator can be equated with an Industrial Tribunal under the Act, the Supreme Court, in furtherance of its observations that the arbitrator appointed under Section 10-A of the Act is higher than a private arbitrator and lower than that of a statutory tribunal, went on to answer that he cannot be equated with an Industrial Tribunal.

At this juncture however, it is important to bear in mind that when the Supreme Court answered this particular question, the provisions of Section 10-A of the Act as they stand today, did not have the provisions of sub-sections (1-A), (3-A) and (4-A). It is in that context, that the Supreme Court observed that there is no doubt that the appropriate Government plays some part in these arbitration proceedings — it publishes the agreement; it requires the arbitration award to be submitted to it; then it publishes the award; and in that sense, some of the features which characterise the proceedings before the Industrial Tribunal before an award is pronounced and which characterise the subsequent steps to be taken in respect of such an award, are common to the proceedings before the arbitrator and the award that he may make. But the similarity of these features cannot disguise the fact that the initial and the inherent power to adjudicate upon the dispute is derived by the arbitrator from the parties, agreement, whereas it is derived by the Industrial Tribunal from the statutory provisions themselves. In this connection, the provisions of Section 10(2) were taken into consideration. This provision with a case where the parties to an industrial dispute apply in the prescribed manner for a reference of their dispute to an appropriate authority, and it provides that the appropriate Government, if satisfied that the persons applying represent the majority of each party, shall make the reference accordingly. In other words, if the parties agree that a dispute pending between them should be referred for adjudication, they move the appropriate Government, and the appropriate Government is bound to make the reference accordingly. Unlike cases falling under Section 10(1) where in the absence of an agreement between the parties it is in the discretion of the appropriate Government to refer or not to refer any industrial dispute for adjudication, under Section 10(2) if there is an agreement between the parties, the appropriate Government has to refer the dispute for adjudication. But the significant fact is that the reference has to be made by the appropriate Government and not by the parties, whereas under Section 10-A the reference is by the parties to the arbitrator named by them and it is after the parties have named the arbitrator and entered into a written agreement in that behalf that the appropriate Government steps in to assist the further proceedings before the named arbitrator.

The Supreme Court also referred to Section 18(2) of the Act in the course of this discussion, as the said provision stood then. It provided that an arbitration award which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration. It would be noticed that this provision mentions the parties to the agreement as the parties who have referred the dispute to arbitration and that indicates that the act of reference is not the act of the appropriate Government, but the act of the parties themselves. Further referring to Section 10-A(5), the Supreme Court observed as under³⁹:

22. Section 10-A(5) may also be considered in this connection. If the reference to arbitration under Section10-A(1) had been made by the appropriate Government, then the legislature could have easily used appropriate language in that behalf assimilating the arbitrator to the position of an Industrial Tribunal and in that case, it would not have been necessary to provide that the Arbitration Act will not apply to arbitrations under this section. The provisions of Section 10-A(5) suggest that the proceedings contemplated by Section 10-A are arbitration proceedings to which, but for sub-section (5), the Arbitration Act would have applied.

(emphasis supplied)

From the aforesaid observation it is clear that the Supreme Court held that since the reference to arbitration on the agreement of the parties, was not made by the appropriate Government, the legislature felt the need to specifically insert sub-section (5) to Section 10-A to exclude the application of Arbitration Act to the arbitrations under the Industrial Disputes Act. In the opinion of the authors, this also means that if the provisions of sub-section (5) of Section 10-A were not present in the statute book at the time when Section 10-A stood without the provisions of sub-sections (1-A), (3-A) and (4-A), the Arbitration Act would have applied to such arbitrations as it would apply to a private arbitration.

Be that as it may, the Supreme Court also noticed that as the Act stood then, it appears that in enacting Section 10-A the legislature probably did not realise that the position of an arbitrator contemplated therein would become anomalous in view of the fact that he was not assimilated to the status of an Industrial Tribunal and was also excluded from the provisions of the Arbitration Act. The Supreme Court, however, stated that it was a matter for the legislature to consider and it appears that the legislature did subsequently assimilate the status of the arbitrator appointed under Section 10-A to that of the Industrial Tribunal through an amendment to Section 10-A by inserting sub-sections (1-A), (3-A) and (4-A) therein.

Be that as it may, as regards the character of the decisions/award given by the arbitrator appointed under Section 10-A of the Act are concerned, the same are “quasi-judicial” in nature. As regards the character of the authority of such an arbitrator is concerned, the same can be said to be higher than that of a private arbitrator and lower than that of a statutory tribunal. The award passed by the arbitrator is also amenable to writ jurisdiction of the High Court under Article 226 of the Constitution of India, which position is reaffirmed by the Supreme Court of India in Rohtas Industries Ltd. v. Rohtas Industries Staff Union⁴⁰. The Supreme Court in Rohtas Industries Ltd. case⁴¹ perhaps noticed the change in position of the status of the arbitrator under Section 10-A of the Act after the insertion of sub-sections (1-A), (3-A) and (4-A). At para 11 observed thus:

11. We agree that the position of an arbitrator under Section 10-A of the Act (as it then stood) vis-à-vis Article 227⁴² might have been different. Today, however, such an arbitrator has power to bind even those who are not parties to the reference or agreement and the whole exercise under Section 10-A as well as the source of the force of the award on publication derives from the statute. 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. This observation made en passant by us is induced by the discussion at the Bar and turns on the amendments to Section 10-A and cognate provisions like Section 23, by Act 36 of 1964.

(emphasis supplied)

The Supreme Court in Rohtas Industries Ltd. case⁴³, despite noticing this change in position of the status of the arbitrator, did not concern itself with the question whether an award by an arbitrator is appealable directly before the Supreme Court under Article 136 since it satisfied the tests of being a “tribunal” as explained in the decision of Hind Cycles Ltd. case⁴⁴. On account of this change in the position of the status of the arbitrator appointed under Section 10-A of the Act, where the legislature has given the power to the appropriate Government to effectively make a reference to such an arbitrator chosen by the parties, in the opinion of the authors, a question therefore arises whether such an arbitrator is now elevated to a status of a tribunal since the test explained by the Supreme Court in Hind Cycles Ltd. case⁴⁵ is satisfied, thereby making an award passed by the arbitrator capable of being challenged in an appeal under Article 136 of the Constitution of India. This question has not been considered by the Supreme Court as yet after the case of Hind Cycles Ltd. case⁴⁶ and especially after the amendment to Section 10-A of the Act.

However, the Supreme Court in a subsequent judgment in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha⁴⁷ has in no uncertain terms held that an arbitrator would fall within the natural meaning of the word “tribunal”. One of the questions that arose before the Supreme Court was whether an arbitrator would fall within the ambit of the term “tribunal” as used in Section 11-A of the Industrial Disputes Act and whether an arbitrator would have the power to grant a relief of reinstatement in an industrial dispute relating to discharge or dismissal of workmen. The Supreme Court, in a majority judgment⁴⁸ authored by V.R. Krishna Iyer, J., held that the word “tribunal” found in Section 11-A of the Act has to be given its ordinary natural meaning and not the one as per the definition of “tribunal” in Section 2(r) of the Act. To restrict the meaning of the word “tribunal” to its definition in Section 2(r) of the Act was thought to be repugnant to the context in which the said word was used in Section 11-A of the Act. The Supreme Court thus held that Section 11-A of the Act did clothe the arbitrator with similar power as tribunals, despite the doubt created by the abstruse absence of specific mention of “arbitrator” in Section 11-A of the Act.

Whether Part I of the Arbitration and Conciliation Act, 1996 is applicable to arbitral proceedings conducted under Section 10-A of the Industrial Disputes Act, 1947

Sub-section (5) of Section 10-A specifically excludes the application of the provisions of the Arbitration Act, 1940 to an arbitration under Section 10-A. It is further interesting to note that even as on today the provisions of the Act as they stand on the statute book, still make a reference to the old Arbitration Act, 1940 and not the Arbitration & Conciliation Act, 1996. It may therefore appear that there is some scope to argue that the Act does not exclude the application of the Arbitration and Conciliation Act, 1996 to a voluntary reference of arbitration under Section 10-A of the Act. Let us now examine this issue in detail.

The Arbitration Act, 1940 was repealed by Section 85⁴⁹ of the Arbitration and Conciliation Act, 1996. Despite the repeal of the Arbitration Act, 1940, the legislature has not thought it fit to carry out a corresponding amendment in Section 10-A(5) of the Act which still refers to the Arbitration Act, 1940. In such a situation, it would be apposite to note the provisions of Section 8 of the General Clauses Act, 1897⁵⁰.

Section 8(1) of the General Clauses Act, 1897 reads as under:

(1) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.

It is therefore possible to construe the reference to Arbitration Act, 1940 as found in Section 10-A(5) of the Act, to mean a reference to Arbitration and Conciliation Act, 1996 subsequent to the repeal of the Arbitration Act, 1940.

Now, when Section 10-A(5) specifically excludes the application of the Arbitration Act, the next question that arises is which of the two special enactments will prevail. On one hand, the ID Act is not only a special enactment but also a beneficial social legislation aimed at bettering the position of workmen. On the other hand, the Arbitration and Conciliation Act, 1996 is a special enactment that governs the law of arbitration in the country. In this context, it would be relevant to note the provisions of Sections 2(4) and 2(5) of the Arbitration and Conciliation Act, 1996⁵¹, which are pari materia with Sections 46⁵² and 47⁵³ of the Arbitration Act, 1940.

Sections 2(4) and 2(5) of the Arbitration Act, 1996 read as under:

(4) This Part except sub-section (1) of Sections 40, 41 and 43 shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except insofar as the provisions of this Part are inconsistent with that other enactment or with any rules made thereunder.

(5) Subject to the provisions of sub-section (4) and save insofar as is otherwise provided by any law for the time being in force or in any agreement in force between India and any other country or countries, this Part shall apply to all arbitrations and to all proceedings relating thereto.

A perusal of the aforesaid sections would reveal that the provisions of the Arbitration Act would have been applicable to every arbitration under the Industrial Disputes Act, 1947 except insofar as the provisions of the Arbitration Act are inconsistent with those of the Industrial Disputes Act, 1947. On this touchstone, leaving aside the fact that provisions of Section 10-A(5) of the Act specifically exclude the application of the Arbitration Act, even then there are several inconsistencies between the Industrial Disputes Act, 1947 and the Arbitration Act.

Points of distinction in arbitrations under the ID Act vis-à-vis arbitrations under the Arbitration and Conciliation Act

Statute of arbitration	Industrial Disputes Act, 1947	Arbitration and Conciliation Act, 1996
(1) Appointment of the arbitrator.	Section 10-A of the ID Act, by an agreement between the parties. The appointment is made after a reference is made to such an arbitrator(s) by the appropriate Government.	Arbitrator(s) is appointed on the basis of an agreement between the parties. If the parties fail to agree on the arbitrator concerned, the arbitrator is appointed under Section 11 of the Arbitration and Conciliation Act, 199654 by the Court.
(2) Whether alternate mode of adjudication of disputes is permissible even when there is an arbitration agreement?	Yes, even when there is an arbitration agreement between the parties, the parties may still opt for a traditional mode of adjudication of disputes by going to the Labour Court or the Industrial Tribunal, as the case may be. There is no provision in the nature of Section 8 of the Arbitration and Conciliation Act, 199655 in a situation where the other party is not willing to submit to arbitration despite there being an arbitration agreement.	If there is an arbitration agreement, the parties may still elect (by consent) to have their disputes adjudicated by a civil court or other judicial authority, as the case may be. If, however, one of the parties files a proceeding before an alternate forum, the other party may file an application under Section 8 of the Arbitration Act, in which case it would be obligatory on the court or the judicial authority, as the case may be to refer the disputes to arbitration.
(3) Conciliation, whether mandatory?	Conciliation before the Conciliation Officer is mandatory having regard to provisions of Section 11 of the Act.	Unless mandated by contract between the parties, the conciliation is not mandatorily held between parties before recourse to arbitration. Sections 61 to 81 of the Arbitration Act56 deal with conciliation.
(4) Reference of disputes to arbitration.	Sections 10-A and 12(3) contemplate disputes by consent of parties to arbitration by Government.	Section 11 of the Act by the Chief Justice or his designate.
(5) Jurisdiction of the arbitrator over third parties.	The arbitrator has power to bind even those who are not parties to the reference or the agreement and the whole exercise under Section 10-A as well as the source of the force of the award on publication derives from the statute.	The award of the arbitrator does not bind third parties who are not parties to an arbitration agreement but only binds persons claiming under the respective parties (Section 35 of the Arbitration Act57).
(6) Remedy to a person affected by an award/order incidentally.	Writ petition under Article 226 of the Constitution of India.	A stranger to an arbitration agreement cannot be allowed to be impleaded in an arbitration proceeding and cannot be permitted to seek modification of any order passed by an Arbitral Tribunal, but, if such a stranger is affected or aggrieved by an order passed by an Arbitral Tribunal, the remedy available to such a stranger/third party is to file an appeal under Section 3758 of the Arbitration Act.59 However, if a person is wrongly impleaded as a party to the arbitration proceedings and is aggrieved by an arbitral award, he can invoke Section 3460 of the Arbitration Act.61
(7) Challenge procedure to an arbitral award.	Under the Industrial Disputes Act, 1947 an award shall be final and shall not be called in question by any court in any manner whatsoever. It is, however, trite law that an arbitral award is nevertheless amenable to the writ jurisdiction of the High Court as per the Wednesbury principle.	An arbitral award is only capable of being challenged by way of an objection petition before the court under Section 34 of the Arbitration Act on the specific grounds enumerated under the said section. The High Court cannot normally interfere with an arbitral award passed in a private arbitration.62
(8) Susceptibility of an arbitral award for being interfered with on account of circumstances beyond the Arbitral Tribunal’s control.	An arbitral award passed by an Arbitral Tribunal constituted under the Industrial Disputes Act, 1947 can be set aside in an instance where the appropriate Government has failed in publishing the agreement in accordance with Section 10-A(3) of the Act.63	An arbitral award passed in a private arbitration can only be set aside either by consent of the parties or under Section 34 of the Arbitration and Conciliation Act, 1996 but not for any reasons beyond the control of the Arbitral Tribunal.
(9) Manner of execution.	Section 33-C(2) of the ID Act before the Labour Court (supra).	Execution application before a civil court of appropriate jurisdiction.

Judicial pronouncements on Section 10-A of the ID Act

The question whether the provisions of Arbitration Act would apply to an arbitration under the Industrial Disputes Act, 1947 and whether an award passed therein is capable of being challenged under Section 34 of the Arbitration and Conciliation Act, 1996 came up before the Bombay High Court in at least two proceedings. In Western Coalfields Ltd. v. Sumit Mullick⁶⁴, in a writ petition challenging the award, an objection was raised before the Court, that the award can be challenged only by filing proceedings before the District Court under Section 34 of the Arbitration and Conciliation Act, 1996. The argument was rejected with an observation that the award could not be treated as an award under the Arbitration Act and that the industrial dispute cannot be settled in any other mode or manner or dehors Section 10-A of the ID Act. It was held 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 Procedure⁶⁵. 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 are the exclusive province and necessary mechanism including forums therefore are provided under the Industrial Disputes Act, 1947.

Further, in Kingfisher Airlines Ltd. v. Prithvi Malhotra⁶⁶, the Bombay High Court once again had occasion to consider the issue of whether an industrial dispute is capable of being adjudicated by a private individual such as an arbitrator. In the said matter the CGIT-cum-Labour Court by the impugned order, held that in the light of Section 10-A(5) of the ID Act, it is clear that a special scheme for arbitration is prescribed under Section 10-A of the ID Act. Therefore, the provisions of the Arbitration Act, would not be attracted to an industrial dispute. The learned Presiding Officer also observed that a proceeding under Section 33-C(2) of the ID Act is an execution proceeding filed for recovery of the amount of salary due and payable to the respondent. CGIT-cum-Labour Court had therefore dismissed the application filed under Section 8 of the Arbitration and Conciliation Act, 1996 filed before it. In the challenge mounted against the impugned order, the Bombay High Court considered the judgments of Booze Allen⁶⁷ and Haryana Telecom Ltd. v. Sterlite Industries (I) Ltd.⁶⁸ and other judgments and thereafter opined that the test to be applied for the disputes of the nature is not, whether the action therein is in rem or in personam. The test would be whether adjudication of such disputes is reserved by the legislature exclusively for public fora as a matter of public policy. Because even an action in personam, if reserved for resolution by a public fora as a matter of public policy would become non-arbitrable by private arbitration. The Bombay High Court thereafter proceeded to consider Section 10-A of the ID Act.

20. … Section 10-A provides, a detailed procedure on how the arbitration thereunder shall proceed, which includes mandatory forwarding of the arbitration to the appropriate Government and the Conciliation Officer. It also includes publication of notification thereafter so that the employers and workmen not parties to the arbitration agreement, but are concerned in the dispute, get an opportunity of presenting their case before the arbitrator. The section does not entirely leave the matter in the hands of the parties to the arbitration agreement and the private fora of their choice. This shows that an industrial dispute is not treated solely as an individual dispute but is always approached from the context of the larger picture of the industry as a whole. The status of the arbitrator appointed under Section 10-A of the ID Act, is also different. To put it in the words of the learned Single Judge of this Court from Nagpur Bench in the unreported decision in Western Coalfield’s case⁶⁹, he falls “within the rainbow of statutory tribunals”.⁷⁰

The Bombay High Court thereafter observed as under:

23. … Therefore, by necessary implication the same stands excluded from the purview of the private fora of the arbitrator. Consequently, the industrial dispute is rendered inarbitrable outside the ID Act. In such a case, the Court where the dispute is pending, must refuse to refer the parties to arbitration, under Section 8 of the Arbitration Act, even if they have agreed upon arbitration as the forum for settlement of disputes between them.⁷¹

Similarly, the Karnataka High Court in Rajesh Korat v. Innoviti Embedded Solutions (P) Ltd.⁷², held that the Arbitration Act is not applicable to the arbitral proceedings under the Industrial Disputes Act, 1947.

It is clear from the aforesaid decisions that the Bombay High Court and Karnataka High Court came to the aforesaid conclusion by holding that the Industrial Disputes Act, 1947 provides for a conclusive mechanism for conducting arbitration of industrial disputes. It is held that adjudication of such disputes is reserved to be done by the authorities mentioned under the Industrial Disputes Act which included the Arbitral Tribunal under Section 10-A of the Act being an authority falling within the rainbow of statutory tribunals under the Act. It was thus held that the provisions of the Arbitration and Conciliation Act, 1996 had no application to the arbitral proceedings under the Industrial Disputes Act, 1947. The courts, however, did not venture into a discussion of the provisions of Sections 2(4) and 2(5) of the Arbitration and Conciliation Act, 1996 and the apparent inconsistencies in the provisions of the Arbitration and Conciliation Act, 1996 and the Industrial Disputes Act, 1947.

It can therefore be safely concluded that as the legal position stands today, the provisions of the Arbitration and Conciliation Act, 1996 are not applicable to the arbitrations under the Industrial Disputes Act, 1947.

Need for bringing the arbitral proceedings conducted under Section 10-A of the Industrial Disputes Act, 1947 in line with those conducted as per the Arbitration Act

Different treatment in terms of reference of disputes to arbitration and archaic style of dispute resolution leading to unexplained delay

An example of wishful thinking that arbitration is thought to be a speedy remedy for industrial disputes is seen in the judgment of the Supreme Court in Karnal Leather Karamchari Sanghatan v. Liberty Footwear Co.⁷³ observed as under:

29. It must be recognised that in the modern welfare State, healthy industrial relations are a matter of paramount importance. In attempting to solve industrial disputes, industrial adjudication, therefore, should not be delayed. Voluntary arbitration appears to be the best method for settlement of industrial disputes. The disputes can be resolved speedily and in less than a year, typically in a few months. The Tribunal adjudication of reference under Section 10(1) often drags on for several years, thus defeating the very purpose of the industrial adjudication. Arbitration is also cheaper than litigation with less legal work and no motion practice. It has limited document discovery with quicker hearings and less formal than trials. The greatest advantage of arbitration is that there is no right of appeal, review or writ petition. Besides, it may, as well reduce company’s litigation costs and its potential exposure to ruinous liability apart from redeeming the workmen from frustration.

(emphasis supplied)

However, as seen from the provisions of the ID Act briefly enumerated in the foregoing paragraphs, it is seen that the provisions of Sections 2-A, 17-B, 19(4), 25-M(7), do not specifically include arbitration in their purview.

Section 2-A of the ID Act allows a workman to raise a reference individually without recourse to the appropriate Government’s mechanism under Section 10 of the ID Act. The aforesaid section however, specifically, and strangely, excludes an arbitrator, meaning thereby that the Labour Court and/or Industrial Tribunal is giving a bigger weightage in the said section. Moreover, this is in stark contrast to Section 33 of the Act where an arbitrator is entitled to consider and/or grant approval to an action taken by an employer for a distinct and separate misconduct conducted by the workman during pendency of a reference before him. No reasons are given to justify the said differential treatment and as such, not allowing a direct reference under Section 2-A of the ID Act is itself completely against the very purpose of arbitration as an expeditious method of alternate dispute resolution.

Perhaps the most glaring of them all is the provision of Section 17-B of the ID Act which concerns with interim wages to a workman who is the beneficiary of an award which is challenged and stayed before the High Court. Unlike the provisions of Sections 11(1) and 33(2) of the Act which specifically include an arbitrator, the legislature has strangely ignored an arbitrator’s award from the purview of the entitling a workman for interim wages. Although, in the opinion of the authors, the decision of the Supreme Court in Gujarat Steel Tubes case⁷⁴ can be extended even to Section 17-B meaning thereby the “tribunal” mentioned therein would also include an Arbitral Tribunal, it would be preferable if this is made certain by an appropriate legislative amendment, especially in the absence of an authoritative judicial pronouncement.

Inapplicability of recent amendments to the Arbitration and Conciliation Act, 1996 to the arbitrations under the ID Act

In 2015, the Arbitration and Conciliation Act, 1996 underwent several changes. The inapplicability of the changes is telling upon the ID Act. Some of the major changes and/or their implications can be culled out below:

(a) The time-frame of 12 months with an extension of 6 months under the Arbitration Act for an arbitrator to render an award. No such time-limit is given under the ID Act except as per the discretion of the appropriate Government.

(b) Costs of an arbitrator under the ID Act remain unmonitored. Per contra, the Arbitration Act has specific provisions regulating fees.⁷⁵

(c) The principles for challenging an arbitral award under Section 34 of the Act to ensure minimal interference by the judiciary are inapplicable to the arbitrations under the ID Act where the awards continue to be amenable to writ jurisdiction of the High Court.

(d) No scope for institutional arbitration under the ID Act.

Vagueness in terms of powers of an arbitrator under the ID Act

An arbitrator’s powers under the ID Act are extremely vague and the same can be seen with the following instances:

(a) The reference to the 1940 Act under Section 10-A(5) of the ID Act.

(b) Seemingly to mean that an arbitrator cannot entertain a direct reference raised by a workman under Section 2-A, but he can definitely adjudicate an industrial dispute under Section 10-A which is “voluntary reference of disputes to arbitration”.

(c) An arbitrator does not have power to determine prohibition of lay off under Section 25-M(7) of the Act (as the Government can decide such an application on its own motion or refer it to the Industrial Tribunal for adjudication) but can determine approvals for retrenchment of a workman during pendency of a reference under Section 33 of the ID Act.

(d) An arbitrator can adjudicate “any industrial dispute” under Section 10-A but no benefits are extended to the workman of the provisions of S. 17-B of the ID Act.

(e) Despite parties wishing to refer a dispute to an arbitrator, they are forced to approach the appropriate Government which makes a reference to arbitration. For instance, a party cannot name and/or directly approach the Presiding Officer of the Labour Court or Tribunal as an arbitrator, but the appropriate Government can name the Presiding Officer of the Labour Court or Tribunal as an arbitrator.

ID Act can make the provisions of the Arbitration Act applicable to the arbitrations conducted under Section 10-A

The Arbitration and Conciliation Act is made applicable to multiple special statutes in India some of which are the Micro, Small and Medium Enterprises Act, 2006⁷⁶; the Electricity Act, 2003⁷⁷; Multi-State Co-operative Societies Act, 2002⁷⁸; Land Acquisition Act, 1894⁷⁹ (now repealed); Cantonments Act, 1924⁸⁰; Forward Contracts (Regulation) Act, 1952⁸¹; National Highways Act, 1956⁸².

Similar to the ID Act, the aforementioned statutes are instances wherein Arbitration Act, as may be applicable, is contemplated for redressal of grievances between the parties. The Arbitration and Conciliation Act, 1996 however, is made applicable to the said statutes. There is no foreseeable reason why the Arbitration and Conciliation Act, 1996 should not be made applicable to the arbitrations under the ID Act.

Denial of a right of appeal from an order of the Single Judge

Both the Arbitration and Conciliation Act as well as the ID Act do not contain provisions for an appeal from an award of an arbitrator. However, the remedies provided differ substantially as evidenced by the flowchart mentioned hereinabove. Whereas a party under the Arbitration Act can impugn an award under Section 34 of the Act, a party aggrieved by an arbitral award under the ID Act can only impugn the said award under Article 226 of the Constitution of India by invoking the principles of judicial review under the Indian Constitution.

The problem is that although in Maharashtra, a party can have a remedy of an intra-court appeal under Section 37 of the Arbitration Act (if the order under Section 34 of the Arbitration Act is passed by a Single Judge of the High Court), no such remedy of an intra-court appeal is provided to the aggrieved party from an order passed by the learned Single Judge in exercise of writ jurisdiction under Articles 226/227 of the Constitution of India.⁸³ Furthermore, if an order under Section 34 of the Arbitration and Conciliation Act is passed by the District Court (that is, if the award was passed in an arbitration seated at a place outside the original jurisdiction of the Bombay High Court), then the aggrieved party has the remedy of filing an appeal under Section 37 of the Arbitration Act before the High Court.

Concluding remarks

The present study attempts to point out the inherent lacunae which act as a deal breaker for the supposedly robust alternate dispute resolution mechanism under the ID Act which was introduced to reduce the backlog of cases pending in the Labour Courts/Tribunals. In view of the differential treatment meted to an award made by an industrial arbitrator, the arbitration remedy is unable to achieve the same level of preference that is given to remedies before the Labour Court/Tribunal under the ID Act. Voluntary arbitration as contemplated in the ID Act is “arbitration” for namesake. In reality, it is another name of adjudication under the Act albeit by a consensual adjudicator called “arbitrator”. The object of “arbitration”, as compared to regular “adjudication”, in the area of labour jurisprudence was to assure maximum party autonomy and expeditious disposal at minimal expense. However, under the present scheme of the ID Act, the only liberty the parties have is that they can make a consensual reference of the dispute to an arbitrator of their choice. After the reference has been made, there is little difference between “voluntary arbitration” and compulsory adjudication. The arbitrator has to follow the same procedure as any other adjudicator has to follow as prescribed in Section 11 of the ID Act. Thus, there is no functional difference between an Arbitral Tribunal and the Labour/Industrial Court. On the contrary, as noted hereinabove, several provisions in the ID Act are not expressly extended to include an arbitral award within their sweep. Moreover, the entire gamut of arbitration under the ID Act seems to be at divergence from the arbitration contemplated under Arbitration and Conciliation Act, 1996.

The approach of the makers of the ID Act in failing to appreciate the changing dynamics of the arbitration law in India further prevents the arbitration under the ID Act from being brought under a unified framework of law. As shown by the foregoing paragraphs, there is an urgent need to bring the powers of an arbitrator in line with the powers of the Labour Court and Industrial Court instead of selectively allowing the arbitrator to merely handle a portion of industrial disputes, for there is no functional difference between an Arbitral Tribunal and the Labour/Industrial Court.

It is hoped that appropriate amendments are made both in the ID Act and the Arbitration Act, to cover industrial disputes under the ambit of arbitration under the 1996 Act and to ensure a uniform, robust and modern outlook to modern day industrial disputes.