PETITIONER:
ASBESTOS CEMENT LTD.
Vs.
RESPONDENT:
P.D. SAWARKAR & ORS.
DATE OF JUDGMENT:
23/02/1970
BENCH:
SHELAT, J.M.
BENCH:
SHELAT, J.M.
MITTER, G.K.
CITATION:
1971 AIR 100 1970 SCR (3) 752
1970 SCC (1) 475
CITATOR INFO :
R 1972 SC1598 (12)
ACT:
Constitution of India, Arts. 133(1) & 226-Final order-
Interim award by arbitrators under Industrial Disputes Act,
1947 deciding one of several issues-Other issues left to be
decided later-Award published in Gazette under s. 17 of Act-
Such award whether an interlocutory order-High Court's
decision dismissing writ petition against such award whether
a 'final order,'.
HEADNOTE:
The 4th respondent was a union of workmen in one of the
factories ,owned by the appellant company. By an agreement
between the 4th respondent and the company a charter of
workmen's demands was referred to adjudication by
arbitrators under s. 1OA of the Industrial Disputes Act,
1947. The arbitrators decided first the dispute relating to
dearness allowance, leaving other disputes to be considered
later. This Part I award was published in the Government
Gazette under s. 17 of the Act. Aggrieved by the said award
the company filed a writ petition under Art. 226-of the
Constitution. The petition was dismissed by the High Court.
The company applied to the High Court for leave to appeal to
this Court. This was refused on the ground that the
arbitration was not completed and therefore neither the
award in question nor the High Court's order dismissing the
writ petition was a final order within the meaning of Art.
133(1) of the Constitution. Against the High Court's order
refusing leave. the company, by special leave, applied to
this Court.
HELD : (i) Under sub-s. 4 of s. 10-A, the arbitrators
submitted the Part I Award duly signed by all of them to the
Government. As required by s. 17(1), the said. Part I
Award was published in the manner prescribed therefore by
the State Government and thereupon under s. 17(2) it became
final and could not be called in question in any court in
any manner whatsoever. Under s. 17A(1) the award became
enforceable on the expiry of 30 days from the date of its
publication. Therefore so far as the question of dearness
allowance among other disputes, was concerned, Part I Award
became final and binding on the parties. It was not an
interlocutory order in the sense of any dispute in respect
of its subject matter remaining to be finally adjudicated by
the arbitrators or the rights of the parties in relation
thereto remaining pending any further determination. [755 B-
E]
(ii) The petition filed by the appellant-company for a
writ of certiorari and for quashing the said Part I Award
under Art. 226 was a proceeding independent of the dispute
between the parties. Such a writ proceeding was not an
interlocutory proceeding nor the order dismissing it an
interlocutory order leaving any question raised in the writ
petition to be determined at any later stage. The) effect
of the dismissal of the writ petition by the High Court was
that the said Part I Award, Subject to any appeal to this
Court, was not liable to be questioned on the grounds
alleged in that writ petition and the appellant-company
would be bound to pay to its workmen dearness allowance at
the rates provided in that award. The controversy between
the parties on questions raised in the writ petition -was
finally determined and brought to an end as a result of the
order ,dismissal. In view of the decision of this Court in
Ramesh v. Seth Genadadal
753
the High Court must be said to be in error in holding that
its order dismissing the writ petition was not a final order
within the meaning of Art. 133(1) and that no appeal,
therefore, lay therefrom in this Court. [755 F-G; 766 B-C]
Ramesh v. Seth Gendadal [1966] 3 S.C.R. 198, applied.
Mohanlal Maganlal Thacker v. State of Gujarat, [19681 2
S.C.R. 685, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2448 of1969.
Appeal by special leave from the order dated November
25, 1968 of the Bombay High Court in Supreme Court Civil
Application No. 2687 of 1968.
V. M. Tarkunde, P. N. Tiwari, and O. C. Mathur, for
the appellant.
B. Sen and S. K. Dholakia, for respondent No. 4.
The Judgment of the Court was delivered by
Shelat, J. This appeal, by special leave, raises the
question as to whether an order dismissing a writ petition
challenging the validity of an industrial award, which
disposes of one of the items of a charter of demands by
workmen but leaves the rest of the demands to be adjudicated
by a, subsequent award, is a final order in a civil
proceeding of a High Court within the meaning of Art. 133(i)
of the Constitution.
The following are the relevant facts
The appellant-company conducts factories at Mulund in
Greater Bombay, Kymore, Calcutta and Podanur. The present
dispute relates to the factory at Mulund where the company
employs more than 1700 workmen and has its Head Office also.
On September 21, 1962 the 4th respondent union on behalf of
the workmen of the Mulund factory submitted a charter of
demands consisting of 20 items including the demand for
increased dearness allowance. By an agreement dated
November 26, 1964 between the appellant-company and the 4th
respondent union made under S. 10-A of the Industrial
Disputes Act, 1947, the said demands were referred for
adjudication to a board of arbitrators consisting of
respondents I to 3. A notification dated December 5, 1964
referring the said disputes to respondents 1 to 3 was issued
by the Maharashtra Government and published in the
Government Gazette. Demand No. 1A in the said charter of
demands related to dearness allowance to be paid to both
monthly and daily rated workmen at the rates threin set out.
The arbitrators decided to hear and dispose of, first, the
dispute as to dearness ‘allowance -and then to deal with the
rest of the
754
disputes relating to other demands. Accordingly, the
parties were heard and ultimately the arbitrators gave their
award which they called Part 1 Award dated March 27, 1965.
The said award was a majority decision in the sense that one
of the arbitrators dissented from the opinion of the other
two. So far as the present appeal is concerned, it is not
necessary to set out the contents of the award. The said
Part I award was thereafter published in the Government
Gazette dated April 15, 1965 and became enforceable under s.
17-A of the Act on the expiry of 30 days from the date of
its publication. If the Appellant-company were to be right,
the said award imposed a burden of about Rs. 40 lacs by way
of arrears, the award having been made retrospective in
operation, and Rs. 5.58 lacs as and by way of recurring
liability every year.
Aggrieved by the said award the appellant-company filed
a writ petition under Art. 226 of the Constitution being
Special Civil Application No. 824 of 1965 in the High Court
of Bombay for quashing the said award on diverse grounds.
The writ petition came up for hearing before a Division
Bench and was dismissed on merits by an order dated April
10, 1968. The appellant-company thereupon filed an
application being Supreme Court Civil Application No. 2687
of 1968 for leave to appeal to this Court. That application
was rejected by an order dated November 25, 1968 which
stated
“No application lies under article 226 of the Con-
stitution as there is further arbitration.”
It appears that the words “Art. 226” were mentioned in the
said order through inadvertence. What was meant was that as
the arbitration proceedings were still pending and the board
of arbitrators had yet to adjudicate on the rest of the
reference, the disputes between the parties could not be
said to have been finally disposed of, and that therefore,
the said Part I award was an interlocutory order.
Consequently, neither that award nor the order dismissing
the writ petition against that award was a final order
within the meaning of Art. 133(1). This appeal challenges
the correctness of this order.
The only question arising in this appeal, is whether
the High Court’s order dated November 25, 1968 dismissing
the writ petition is a final order within the meaning of
Art. 133(1). There is no dispute that the question of
dearness allowance along with several other questions was,
by agreement between the parties, referred to the
arbitration of respondents 1 to 3 as provided by s. 10-A
of the Act and that a copy thereof was published in the
755
Government Gazette as required by sub-s. 3 of that section.
There is similarly no dispute that the -arbitrators, instead
of determining all the disputes at one time, first took up
the question of’ dearness allowance, deciding to take up the
rest of the disputes at a subsequent stage and gave their
award calling it Part 1, Award. Under sub-s. 4 of S. 10-A,
the arbitrators submitted the said Part I Award duly signed
by- all of them to the Government. As required by s. 17(1),
the said Part I Award was. published in the manner
prescribed therefore by the State Government and thereupon
under S. 17(2) it became final and could’ not be called in
question by any court in any manner whatsoever. Under S.
17A(1), the award became enforceable on the expiry of 30
days from the date of its publication under S. 17-in the
present case, as from May 15, 1965. Therefore, so far as
the question of dearness allowance, among other disputes,
was concerned, Part I Award became final and binding on the
parties and nothing further remained to be done or
determined in respect of the controversy between the parties
on the question of dearness allowance. The award,
therefore, was not an interlocutory order in the, sense of
any dispute in respect of its subject matter remaining to be
finally adjudicated by the arbitrators or the rights of the
parties in relation thereto remaining pending any further
determination. In this sense there can be no doubt that so
far as the dispute as to dearness allowance was concerned,
the arbitrators by the said Part I Award finally adjudicated
it and gave their decision leaving nothing to be adjudicated
or decided upon at any subsequent stake of the arbitration.
Quite apart from this consideration, the petition filed
by the appellant-company for a writ of certiorari and for
quashing the said Part I Award under Art. 226 was ‘a
proceeding independent on the dispute between the parties.
Such a writ proceeding was not an interlocutory proceeding
nor was the order dismissing it an interlocutory order
leaving any question raised in the writ petition to be
determined at any later stage. Once the High Court
dismissed the writ petition, the controversy between the
parties raised therein was finally determined and therefore
came to an end. In Ramesh v. Seth Gendalal(1) a similar
question arose for consideration and this Court held that a
writ petition under Art. 226 is a civil proceeding of a High
Court, that such a proceeding is quite independent of the
original controversy between the parties and that a decision
in exercise of jurisdiction under that article, whether
interfering with the proceedings impugned or declining to do
‘so, is a final decision in so far as the High Court is
concerned, if the effect is to terminate the controversy
before it and the order must in that case be
(1) [1966] 3 S.C.R. 198.
756
regarded as final for the purpose of an appeal to the
Supreme Court. (See also Mohanlal Maganlal Thacker v. State
of Gjarat(1).
It is clear that the effect of the dismissal of the
writ petition by the High Court was that the said Part I
Award, subject to any appeal to this Court, was not liable
to be questioned on the grounds alleged in that writ
petition and the appellant-company would be bound to pay to
its workmen dearness allowance at the rates provided in that
award. The controversy between the parties on questions
raised in the writ petition was finally determined and
brought to an end as a result of the order of dismissal. In
view of the decision in Ramesh v. Seth Gendalal(2) the High
Court must be said to be in error in holding that its order
dismissing the writ petition was not a final order within
the meaning of Art. 133(1) and that no appeal, therefore,
lay therefrom to this Court.
The appeal succeeds. The High Court’s order dated
November 25, 1968 is set aside and the case is sent back to
the High Court for disposal in accordance with law. In the
circumstances of the case there will be no order as to
costs. The Special Leave Petition No. 148 of 1969 filed
against the High Court’s judgment and order dated April 10,
1968 dismissing the said writ petition is allowed to be
withdrawn. Stay granted by this Court will continue for ten
days from today.
G.C. Appeal allowed.
(1) [1968] 2. S.C.R. 685.
(2) [1966] 3 S.C.R. 198.
757