JUDGMENT
Nainar Sundaram, J.
1. These Writ Appeals are against a common order in Writ Petitions Nos. 1742 and 1743 of 1982. The first- respondent in the Writ Petitions is the appellant in the Writ Appeals. The petitioner in each of the Writ Petitions is the first-respondent in the respective Writ Appeals. The second-respondent in the Writ Petitions is the second-respondent in the Writ Appeals. For the sake of convenience, we shall refer to the parties as they stood arrayed in the Writ Petitions.
2. An industrial dispute between the T.U.C.S. Employees’ Union and the first-respondent relating to wage increase, wastage, driage and spillage allowance and non-employment of certain workmen was conciliated before the Deputy Commissioner of Labour-I, Madras. It is to be noted that the two petitioners were amongst the workmen non- employed by the first respondent. There was a settlement on 2nd July, 1977 under S. 12(3) of the Industrial Disputes Act, 1947, hereinafter referred to as ‘the Act’. While the other issues were settled in the real sense, terms were mutually arrived at between the parties and a quietus was given to such issues, with regard to the dispute relating to on-employment of the concerned workmen including the petitioners, Clause III of the settlement provided as follows :
“It is agreed that the following issue relating to the dismissal of 51 workmen belonging to T.U.C.S. Ltd., Madras and fourteen workmen belonging to Kamadhenu Co-operative Super Market, Madras, will be left for the (informal arbitration) decision of the Commissioner of Labour, Madras. The decision of the Arbitrator shall be final and binding on both parties.
‘Whether the non-employment of 65 workmen listed in the Annexe is justified; if not to what relief each workmen would be entitled;
To compute the relief, if any, awarded in terms of money, if it could be so computed’.”
In the present cases, we are not concerned with the dispute between the Management of Kamadhenu Co-operative Super Market, Madras, and its workmen. The second-respondent, pursuant to this reference, took up the question of non-employment of the concerned workmen by the first- respondent and upheld the non-employment of eleven workmen including the two petitioners. The petitioners questioned the decision of the second-respondent dated 21st March, 1978 in the Writ Petition.
3. Two contentions were raised on behalf of the petitioners before Venkataswami, J. who heard the Writ Petitions. One is, the proceedings before the second-respondent, as a result of the settlement under S. 12(3) of the Act, must be deemed to be an arbitration under S. 10-A of the Act and, if that be so, the requirement under S. 10-A(3) has not been followed and the award has not been published and, therefore, the award is vitiated for non-compliance with S. 10-A(3) of the Act. Secondly, it was contended before the learned Judge that the second- respondent, if deemed as an Arbitrator for the purpose of S. 10-A of the Act, should have gone into the merits of the case in detail and should have exercised the powers under S. 11-A of the Act with reference to the punishment aspect and since the second-respondent failed to do so, the award is vitiated and is liable to be quashed. The learned Judge upheld these contentions following the ratio of the Full Bench of this Court in R. K. Steels v. Their Workmen [1977-I L.L.J. 382] and the pronouncement of the Supreme Court in Gujarat Steel Tubes Ltd. v. G.S.T. Mazdoor Sabha [1980-I L.L.J. 137].
4. In these Writ Appeals directed against the common order of the learned Judge, Mr. Dwarakanath, learned counsel appearing for the first-respondent-appellant herein would make three submissions : One is, the parties by the settlement dated 2nd July, 1977, chose to settle the dispute relating to non-employment by an informal arbitration, and agreed to be bound by the decision of the informal arbitration, and the second-respondent functioned only as an informal arbitrator and hence the proceedings before the second-respondent cannot fall within the purview of S. 10-A of the Act and his decision is final and binding on the parties. We find that the settlement under S. 12(3) of the Act on 2nd July, 1977 did not settle the issue of non- employment and the issue was relegated to be adjudicated before the second-respondent. Hence, we cannot take it that the dispute relating to on-employment was given a quietus by the settlement dated 2nd July, 1977. “Settlement” stands defined in S. 2(p) of the Acts as follows :
“Settlement 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 therefor has been sent to an officer authorised in this behalf by the appropriate Government and the conciliation officer.”
Though, “settlement” within the meaning of S. 2(p) takes in a settlement arrived at in the course of conciliation proceedings, as the one entered into on 2nd July, 1977 in the present cases, yet the question to be posed is as to whether the dispute was settled or not by such arrangement. Though every settlement is an arrangement or agreement, yet every arrangement or agreement is not a settlement. Even the common sense of conception of a settlement suggests that the arrangement or agreement must decide the dispute one way or the other and give a quietus to it. It must settle the dispute and not relagate it to be decided through some other agency at a future date. An arrangement or agreement to refer an industrial dispute to arbitrator, in out view, cannot amount to a settlement, under the Act, the reason being the dispute subsists, even after such an arrangement or agreement and it is not put an end to and given a quietus, by the arrangement or agreement. In the present cases, parties agreed to refer to an informal arbitration by the second-respondent. The question is whether the agreement was only an agreement to refer the dispute to an arbitration within the meaning of S. 10-A of the Act. The said provision, as a whole, reads as follows :
“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 S. 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 the 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-s. (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 arbitrator 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.
(3A) 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-s. (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.
(4A) Where an industrial dispute has been referred to arbitration and a notification has been issued under sub-s. (3A), the appropriate Government may, by order, prohibit the continuance of any strike or lock-out in connection with such dispute which may be in existence on the date of the reference.
(5) Nothing in the Arbitration Act, 1940 (10 of 1940) shall apply to arbitrations under this section.”
Clauses III of the settlement already extracted could only be considered as an agreement to refer the matter to arbitration under S. 10A of the Act, in view of the ratio of the Full Bench of this Court. In the Full Bench case, the relevant clause in the settlement was more or less similar to the clause in the present cases, and it reads as follows :
“…. Both parties agree to settle the issue of bonus for the accounting year ending 31st December, 1974 by leaving it to the decision of the Assistant Commissioner of Labour (Conciliation), Madras, and his decision in this issue will be final and binding on the parties.”
With reference to this clause, the contention put forth before and how it was repelled by the Full Bench will be better appreciated if the relevant passages in the judgment of the Full Bench are extracted as below :
“…. It was contended by the learned counsel for the petitioner that the terms of settlement amounted only to an agreement to refer the dispute to arbitration within the meaning of S. 10-A. Per contra, the learned counsel for the respondents contended that the parties did not deliberately want to avail themselves of the statutory arbitration under S. 10A, but agreed to refer the matter to informal arbitration outside S. 10-A and this is clear from the fact that the agreement was not in the form prescribed nor the procedure prescribed under S. 10A was followed. We are unable to agree with the contention of the learned counsel for the respondents. The dispute between the parties related to the payment of bonus and, therefore, it is an industrial dispute. An industrial dispute could be resolved under the Act by a settlement in the course of conciliation proceedings under S. 12(3) or by a settlement arrived at by agreement between the parties otherwise than in the course of conciliation proceedings or by adjudication on a reference under S. 10 or by arbitration by referring the dispute to an arbitrator as provided under S. 10A. Section 10-A(1) of the Act reads as follows :
It is seen from this provision that at any time before the dispute has been referred under S. 10, the parties could agree to refer the dispute to arbitration. The terms of settlement arrived at during the conciliation proceedings in this case did not settle the dispute relating to bonus. Therefore, the agreement entered into by the parties on 28th February, 1976 to settle the issue of bonus by leaving it to the decision of the Assistant Commissioner of Labour did not amount to a settlement during conciliation proceedings under S. 12(3) of the Act, and it would clearly amount only to an agreement to refer the dispute to arbitration.”
It is the categorical opinion of the Full Bench that if the terms of the settlement did not settle the dispute as such, and there was only an agreement to refer the matter to arbitration, such an agreement must only be held to be an agreement to refer the dispute to arbitration under S. 10A of the Act. It is not disputed before us by the learned counsel for the first-respondent that the agreement in the present cases, substantially complies with all the requirements of S. 10-A(1) and (2) of the Act. In the Full Bench case also substantial compliance with the requirements was noted in respect of that agreement. In our view, the Full Bench ratio provides answer for the first-contention put forth by the learned counsel for the first- respondent.
5. Secondly, learned counsel for the first-respondent would contend that the agreement in question in the present cases falls outside the scope of the Act and the non-compliance with the provisions of S. 10-A of the Act shall not vitiate such an arbitration and the decision rendered by the second-respondent must be upheld. Here again, we find the answer has been already given by the Full Bench in the following passage :
“We are also of the view that an agreement entered into during conciliation proceedings between the management and the workers union regarding an industrial dispute is an agreement, to refer the dispute to arbitration under S. 10-A, for the Act does not contemplate arbitration of an industrial dispute outside S. 10-A. In the face of S. 10-A(5) excluding the application of Arbitration Act, 1940 to arbitrations under S. 10-A, it would be very doubtful whether private agreement in respect of industrial disputes contracting out of the statutory provisions of S. 10-A would be permissible at all in law. The argument that in the instant case the arbitration agreement was not forwarded to the Government or the officers referred to in sub-s. (3) of S. 10-A and that the agreement or the award also was not published in the Gazette, showed that…. the parties deliberately did not want to avail the provisions of S. 10-A could not be accepted as that will amount to putting the cart before the horse. The Government comes into the picture only after the arbitration agreement had been entered into under S. 10-A(1) and signed by the parties as required under S. 10-A(2). If once that is done, there is a valid arbitration agreement and non-compliance with the other provisions of S. 10-A or any other provision in the Act relating to publication of the award will not invalidate or take the arbitration agreement itself outside the purview of S. 10-A.”
Section 10-A(5) specifically excludes the application of the provisions of the Arbitration Act, 1940 to arbitrations under the Section. This to out mind, to a very great extent suggests that when once an industrial dispute has arisen, within the meaning of the Act and if it has to be given a quietus in the eye of law, it could be done only in the manner contemplated in the Act. The Act as such, in express terms, does not contemplate a private arbitration to resolve an industrial dispute. There could be a settlement, either in the course of conciliation proceedings or outside it, provided the ultimate agreement by which the issues are settled is signed by the parties, as contemplated in S. 2(p). Or the industrial dispute could be resolved by reference and adjudication. Or it could be resolved by arbitration and award under S. 10-A. The scheme of the Act does not contemplate a private arbitration outside the Act as a method of solving the industrial dispute. The industrial dispute in the present cases got conciliated, and the agreement entered into could only be an agreement within the meaning of S. 10-A and cannot be taken outside it. Merely because the parties say that the matter will be left for informal arbitration, the agreement cannot be stated to refer the dispute to an arbitration outside the purview of S. 10-A. It is also the opinion of the Full Bench that it would be very doubtful whether private agreement in respect of industrial disputes contracting out of the statutory provision of S. 10-A would be permissible at all in law.
6. Thirdly, it is contended by Mr. Dwarakanathan, learned counsel appearing for the first-respondent, that the settlement under S. 12(3) on 2nd July, 1977 was duly arrived at the instance of the Union, espousing the cause of the workmen including the two petitioners and the arbitration before the second respondent also having been prosecuted by the Union on behalf of the two petitioners, the two petitioners cannot individually attack the award of the second- respondent before this Court. It cannot be disputed that the two petitioners are “the persons affected” and we cannot deny them the right to invoke the writ jurisdiction of this Court if there is a warrant for it, impeaching the award of the second-respondent. Before us, submissions were made by both counsel with reference to the provisions of the Act enabling representations on behalf of workmen. We need not necessarily resort to the provisions of the Act enabling the parties to agitate their rights either individually or through Union. Even within the Act individual workmen are enabled to agitate for their cause without reference to the Union. So far as powers of this Court are concerned, they shall always be available at the instance of persons who stand affected by the decisions of an authority like the second-respondent. Our attention has not been drawn to any pronouncement which has taken a view contrary to what we have observed above. On the other hand, Miss Anna Mathew, learned counsel for the petitioners drew our attention to a pronouncement of the Supreme Court in Air India v. Nergesh Meerza [1981-II L.L.J. 314] to state that though the cause of the employees was earlier espoused by the Union, yet the individual employees themselves did agitate the matter before the Supreme Court and obtained reliefs. Whatever that be, as we have already pointed out, as persons affected, the petitioners can always invoke the jurisdiction of this Court under Art. 226 of the Constitution of India. We find that the learned Judge has granted reliefs only so far as the two petitioners are concerned and in the instant case, admittedly, the relevant requirements of S. 10-A and S. 11-A of the Act have not been complied with and the learned Judge has remitted the matter back to file of the second- respondent for him to dispose of the matter afresh and in accordance with law. It is needless to state that the second-respondent will endeavour rectify and direct the parties also, if necessary, to rectify the lacunae with regard to the compliance of the requirements of S. 10-A of the Act. For the reasons expressed above, we are not able to persuade ourselves to interfere in Writ Appeals. Accordingly, the Writ Appeals fail and will stand dismissed. No costs.
7. Now we have disposed of the Writ Appeals and, since pending disposal of the Writ Appeals, there were orders of stay, we direct the second-respondent in the Writ Petitions to take up the matter and dispose it of as directed by the learned single Judge as expeditiously as possible and in any event before the lapse of three months from the date of receipt of copy of this judgment.