TMI Blog1975 (12) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... ial processes have promises to keep if positive industrial peace, in tune with distributive economic justice and continuity of active production, were to be accomplished. The architects of these processes will, we hopefully expect, fabricate creative changes in the system, normative and adjectival. The two appeals before us, passported by special leave under Art. 136, relate to an industrial dispute with its roots in 1948, meandering along truce union rivalry and the like, into strikes and settlements, the last of which led to an arbitration award in 1959 which, in turn, prompted two writ petitions before the High Court. After a spell of a few years they ripened into a judgment. Appeals to this Court followed and, after long gestation of six years for preparation of papers and a like period the cases are ready for final hearing or parturition, in all 12 years after the grant of leave. By this cumulative lapse of time the generation of workers who struck work two decades ago have themselves all but retired, the representative Union itself which sponsored the dispute has, the other side faintly states, ceased to command representative character, the Managements themselves have, ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shall be submitted for arbitration of Sri J. N. Majumdar and Sri R. C. Mitter, ex-High Court Judges and Ex Members of the Labour Appellate Tribunal of India as joint arbitrators and their decisions on the two questions shall be final and binding on all the parties. (Clause 7 of agreement) This agreement was admittedly arrived at during conciliation proceedings contemplated by the Industrial Disputes Act, 1947 (for short, the Act) and the reference to arbitration spelt out in clause 7 directly and. admittedly fell under s. 10A of the Act. It is apparent that the arbitrators were seized of two questions: (a) the claim of the workers for wages for the period of strike; and (b) the claim of the management for compensation for its losses flowing from the strike. The Board of arbitrators, two retired Judges of the Calcutta High Court-held extensive hearings spread over a year and a half, made a lengthy award marshalling the evidence, adducing the reasons, discussing the law and recording its decision on the two vital issues. At the end of the detailed and reasoned record of conclusions, the award runs thus : Our award accordingly is:- (1) That the workmen participat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the canons of restraint this Court has set down. (2) The award of compensation by the arbitrators suffers from no vice which can be regarded as a recognised ground for the High Court's interference. (3) The view of law taken by the High Court on (1) the supposed flaw in the award based on 'mixed motives' for the offending strike; (ii) the exclusion of remedies other than under s. 26 of the Act; and (iii) the implied immunity from all legal proceedings against strikers allegedly arising from s. 18 of the Trade Unions Act, 1926 is wrong. A few other incidental arguments have cropped up but the core contentions are what we have itemised above. (1)-(a) (b) The expansive and extraordinary power of the High Courts under Art. 226 as wide as the amplitude of the language used indicates and so can affect any person-even a private individual-and be available for any (other) purpose even one for which another remedy may exist. The amendment to Art. 226 in 1963 inserting Art. 226(1A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to 'the residence of such person'. But it is one thing to affirm the jurisdiction, another t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry tribunals amenable to judicial review. i This observation made en passant by us is induced by the discussion at the bar and turns on the amendments to s. 10A and cognate provisions like s. 23, by Act XXXVI of 1964. Should the Court invoke this high prerogative under Art. 226 in the present case ? That depends. We will examine the grounds on which the High Court has, in the present case, excised a portion of the award as illegal, keeping in mind the settled rules governing judicial review of private arbitrator's awards. Suffice it to say, an award under s. 10A is not only not invulnerable but more sensitively susceptible to the writ lancet being a quasi-statutory body's decision. Admittedly, such an award can be upset if an apparent error of law stains its face. The distinction, in this area, between a private award and one under s. 10A is fine, but real. However it makes slight practical difference in the present case; in other cases it may. The further grounds for invalidating an award need not be considered as enough unto the day is the evil thereof. (2) Thus, we arrive at a consideration of the appellants second submission, perhaps the most significant in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teel Furniture ([1967] 1 S.C.R.633) and to the unreported decision Babu Ram. In simple terms, the Court has to ask itself whether the arbitrator has not tied himself down to an obviously unsound legal proposition in reaching his verdict as appears from the face of the award. Bhargava J., speaking for the majority, in Bungo Steel, C.A.107 of 1966 decided on 5-12-68 stated the law: It is now a well-settled principle that if an arbitrator, in deciding a dispute before him, does not record his reasons and does not indicate the principles of law on which he has proceeded, the award is not on that account vitiated. It is only when the arbitrator proceeds to give his reasons or to lay down principles on which he has arrived at his decisions that the Court is competent to examine whether he has proceeded contrary to law and is entitled to interfere if such error in law is apparent on the face of the award itself. (p. 640-641) In Bharat Barrel Drum Manufacturing Co. (A.I.R 1967 S.C. 361) dealing with a private award and the conditions necessary for exercise of writ jurisdiction to correct an error of law apparent on the record, did not lay down the law differently from what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s finding of law alone, it must fail. The clincher is that the factual conclusion involving a legal question must necessarily be wrong in point of law. Even though the award contains no statement of the legal proposition, if the facts found raise 'a clear point of law which is erroneous on the face of it', the Court may rightly hold that an error of law on the face of the award exists and invalidates. Let us put the proposition more expressively and explicitly. What is important is a question of law arising on the face of the facts found and 'F its resolution ex facie of sub silentio. The arbitrator may not state the law as such. Even then such cute silence confers no greater or subtler immunity on the award than plain speech. The need for a speaking order, where considerable numbers are affected in their substantial r t rights, may well be a facet of natural justice or fair procedure, although, in this case, we do not have to go so far. If, as here, you find an erroneous law as the necessary buckle between the facts found and the conclusions recorded, the award bears its condemnation on its bosom. Not a reference in a narrative but a clear legal nexus between the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ievances redressed by resorting to illegal means which is an offence. (b) It has been argued that the claim for compensation is not an industrial dispute as defined in the Industrial Disputes Act. Considering the issue of compensation in a water-tight compartment the argument might appear to be attractive. But, in our opinion, in this case the claim for compensation by the company is a consequence flowing from an admitted industrial J dispute, which in this case is whether the strike was illegal and/or unjustified and as against the condition of service as laid down in the certified standing order on which point our finding has been against the workmen. . The award of the Tribunal, in its totality, is quite prolix the reasons stated in arguing out its conclusions many and thus it is just to state that in the present case the arbitrators two retired Judges of the Calcutta High Court have made a sufficiently speaking award both t on facts and on law. They have referred to the strike being illegal with specific reference to the provisions of the Act, but faulted them selves in law by upholding a case for compensation as axiomatic, necessarily based on a rule of common law i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f even there it is possible to hold that an illegal strike per se spells the wrong. We may state that till recently it could not be said with any certainty that there was any such tort as 'conspiracy'. Salmond thought that there was not (See Salmond-Law of Torts-p. 505, 15 s Ed.). It is interesting that in Edition of Salmond, Mogul is linked up by the learned author with a capitalist economy. Be that as it may, the common law of England today is more or less clear, some rumblings notwithstanding. A combination wilfully to do an act causing damage to a man in his trade or other interests is unlawful and if damage in fact is caused is actionable as a conspiracy. To this there is an exception where the defendants' real and predominant purpose is to advance their own lawful interests in a matter in which they honestly believe that those interests would directly suffer if the action against the plaintiff was not taken. In truth, the Crofter case has made section 11, of the Trade Disputes Act, 1906, largely unnecessary, for there will now be few conspiracies arising out of trade disputes which are not protected at common law. (pp. 508-509, 15th Edn., Sweet Maxwell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sorrel (Supra): How any definite line is to be drawn between acts whose real purpose is to advance the defendant's interests, and acts, whose real purpose is to injure the plaintiff in his trade, is a thing which I feel at present beyond my power. It is absolutely plain that the tort of conspiracy necessarily involves advertence to and affirmation of the object of the combination being the infliction of damage or distraction on the plaintiff. The strike 3-L390SCI/76 may be illegal but if the object is to bring the employer to terms with the employees or to bully the rival trade union into submission, there cannot be an actionable combination in tort. In the present case, it is unfortunate that the arbitrators simply did not investigate or pass upon the object of the strike. If the strike is illegal, the tort of conspiracy is made out, appears to be the proposition of law writ tersely into the award. On the other hand, it is freely conceded by counsel for the appellant that the object was inter-union rivalry. There is thus a clear lapse in the law on the part of the arbitrators manifest. , on the face of the award. We have earlier referred to the need for a fresh l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings were pending the strike was ipso jure illegal (ss. 23 and 24,. The consequence, near or remote, of this combined cessation of work caused loss to the management. Therefore the strikers were liable in damage to make good the loss. Such is the logic of the award. It is common case that the demands covered by the strike and the wages during the period of the strike constitute an industrial dispute within the sense of s. 2(k), of the Act. Section 23, read with s. 24, it is agreed by both sides, make the strike in question illegal. An 'illegal strike' is a creation of the Act. As we have pointed out earlier, the compensation claimed and awarded is a direct reparation for the loss of profits of the employer caused by the illegal strike. If so, it is contended by the respondents, the remedy for the illegal strike and its fall- out has to be sought within the statute and not de hors it. If this stand of the workers is right, the remedy indicated in s. 26 of the Act, viz., prosecution for starting and continuing an illegal strike, is the designated statutory remedy. No other relief outside the Act can be claimed on general principles of jurisprudence. The result is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concept which is the creature not of the common law but of s. 24 of the Act) has to be sought exclusively in s. 26 of the Act. The claim for compensation and the award thereof in arbitral proceedings is invalid on its face on its face' we say because this jurisdictional point has been considered by the arbitrators and decided by committing an ex-facie legal error. It was argued, and with force in our view, that the question of compensation by workers to the management was wholly extraneous to the Act and therefore, outside the jurisdiction of a voluntary reference of industrial dispute under s. 10 A. While we are not called upon to pronounce conclusively on the contention, since we have ex pressed our concurrence with the High Court on other grounds, we rest content with briefly sketching the reasoning and its apparent tenability. The scheme of the Act, if we may silhouette it, is to codify the law bearing on industrial dispute. The jurisdictional essence of proceedings under the Act is the presence of an 'industrial dispute'. Strikes and lock-outs stem from such disputes. l he machinery for settlement of such disputes at various stages is provided for by the act. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of business being regarded as an industrial dispute as defined in the Act, having regard to the language used, the setting and purpose of the statute and the industrial flavour of the dispute as one between the management and workmen. In this context, we are strengthened in our conclusion by the provisions of s. 33C which provides for speedy recovery of money due to a workman from an employer under a settlement or an award, but not for the converse case of money due to an employer from workmen. There is no provision in the Act which contemplates a claim for money by an employer from the workmen.- And indeed, it may be a little startling to find such a provision, having regard to workmen being the weaker section and Part IV of the Constitution being loaded in their favour. The new light shed by the benign clauses of Part IV must illumine even pre-Independence statutes in the interpretative process. As yet, and hopefully, claims by employers against workmen on ground of tortious liability have not found a place in the pharmacopoeia of Indian Industrial Law. However, as earlier stated, we do not pronounce finally as it is not necessary. There was argument at the bar that the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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