SAYANI TALKIES Vs. K A RAMAMURTHI

JUDGEMENT

(1.) THE second respondent was employed under the appellant, the Management of Sayani Talkies, and a dispute arose about his non- employment before the Conciliation Officer, Labour Officer I, Madras. THE appellant and the second respondent entered into a settlement under S. 12 (3) of the Industrial Disputes act, 1947, on 28-9-1968 agreeing to refer the dispute to the arbitration of the commissioner of Labour, Madras, or his nominee. THE Commissioner of Labour nominated the first respondent, deputy Commissioner of Labour, evidently as persona designata, to arbitrate and he obtained statements from the appellant and the second respondent, recorded evidence, heard them and found that the non-employment of the second respondent was not justified and that he is entitled to reinstatement with continuity of service and half back wages. Accordingly, he passed an award on 12-5-1969. THEse facts are admitted in the appellant's affidavit filed in support of the petition filed by the appellant under S. 14 (2) of the Arbitration Act, 1940, (hereinafter referred to as the Act) for filing the award into the Court. THE lower Court allowed that petition

(2.) THE appellant filed another petition under S. 30 of the Act, for setting aside the said award dated 12-5-1969 on the following grounds " (a) THE Arbitrator has misconducted himself and the proceedings are vitiated by an error of law apparent on the face of the record (b) THE Arbitrator failed to appreciate that the arbitration was governed by the Arbitration Act and as such his power were not larger than those of the civil Court in trying a a civil suit (c) THE Arbitrator failed to note that it was beyond the scope of his jurisdiction to direct reinstatement of the second respondent as it would amount to enforcement of a contract of personal service which is prohibited by S. 14 of the Specific Relief Act (d) THE Arbitrator should have referred to the enquiry proceedings and should have given a finding as to whether the enquiry was fair and reasonable (e) THE Arbitrator misdirected himself in going into the evidence led before him before giving a finding as to fairness of the enquiry (f) THE Arbitrator exceeded his jurisdiction in re-assessing the evidence placed at the enquiry proceedings (g) THE Arbitrator grievously erred in law in submitting his judgment for that of the enquiry officer, when there was an enquiry into the charge of misconduct in which the charge had been made out beyond any shadow of doubt (h) THE Arbitrator has not given any reason to discard the domestic enquiry officer's findings and in the absence of such a finding he ought not to have proceeded to assess the evidence before him with a view to find the guilt of the workmen (i) THE approach of the Arbitrator in going into the merits of the case was contrary to law (j) THE Arbitrator should have seen that even if the non-employment was found to be unjustified the only relief to which the second respondent would be entitled was only damages and not reinstatement in service. THE second respondent, who alone contested that petition under S. 30 of the act, contended in his counter-statement that the grounds alleged for setting aside the award are not true, and stated that the first respondent reached his conclusion expressed in the award only after considering all the records and evidence placed before him and that his awarded is valid and cannot be set aside. He contended in the counter-statement filed in the said application under S. 14 (2) of the Act that the parties to the arbitration proceedings have agreed to treat the award of the arbitrator as final and binding on all parties under S. 18 (3) of the Industrial Disputes Act, and that the settlement arrived at on 28-9-1968 under S. 12 (3) of the Act, for referring the matter to arbitration is not an arbitration agreement as defined in S. 2 (a) of the Act as alleged in that petition, but is a settlement under S. 12 (3) of the Industrial Disputes act, the scheme and the provisions of the civil Court. He thus contended that it is not open to the appellant to invoke the jurisdiction of the civil Court under S. 14 (2) of the Act. He further contended that even if in fact there was an arbitration, S. 10a of the Industrial Disputes Act would be attracted and sub-s. (5) of that section says that nothing in the Arbitration Act, 1940 shall apply to arbitrations under S. 10a and that, therefore, the civil Court has no jurisdiction to entertain the petitionthe points referred for arbitration according to the settlement reached by the parties on 28-9-1968 1. Whether the non-employment of the second respondent is justified and if not, to what relief he will be entitled " 2. To compute the relief in terms of money if it could be so computed

(3.) IT is true that under the law the Courts have the authority to set aside the awards made by arbitrators on certain grounds such as that they (sic) on matters not referred to arbitration, or that the arbitrators had misconducted themselves, or that there are errors apparent on the face of the award. But where the award is not open to any such objection, the Court had to pass a decree in terms of the award, and under S. 17 of the arbitration Act, an appeal lies against such a decree only on the ground that it is in excess of or not otherwise in accordance with the award. In other words, it is the decision of the arbitrator where it is the not set aside that operates as the real adjudication binding on the parties, and it is with a view to its enforcement that the Court is authorised to pass a decree in terms thereof. There is thus a sharp distinction between a decision which is pronounced by a Court in a cause which it hears on the merits, and one which is given by it in a proceeding for the filing of an award. The former is judgment, decree or order rendered in the exercise of its normal jurisdiction as a civil court and that is appealable under the general law. . . . . . The latter is an adjudication of a private tribunal with the imprimatur of the Court stamped on it, and to the extent that the award is within the terms of the reference, it is final and not appealable. "in that case, the reference to the District Judge, khandwa, was as arbitrator under S. 19 (1) (b) of the Defence of India Act, 1939, of a dispute as to compensation for requisitioned property. In Alopi Prasad and sons v. Union of India, 1960 II An W. R. R. (S. C.) 46, it is observed thus at page 50" *