Air Corporation Employees' Union v D.V. Vyas (1962)

An arbitrator under s. 10A is chosen by the parties, not appointed by the State. Does that make him a private arbitrator, beyond the High Court's supervisory jurisdiction — or a statutory tribunal subject to Articles 226 and 227?

The answer given here is that he is a statutory tribunal. The route to it is instructive: the Court looked not at who appointed him but at how much of his existence, procedure and effect comes from the statute.

Under the Air Corporations Act 1953 two corporations were created on nationalisation of air transport — Air-India International Corporation, taking over the assets of Air-India International Ltd on the international routes, and Indian Airlines Corporation, taking over the inland operators.

The Air Corporations Employees' Union submitted demands in October 1954 and again in September 1956. Conciliation failed in January 1958; direct negotiations through a committee also failed. The dispute went to arbitration, and the arbitrator's conduct was challenged before the High Court under Articles 226 and 227.

Is an arbitrator appointed under an arbitration agreement made under s. 10A of the Industrial Disputes Act a private tribunal or a statutory one — and therefore subject to the High Court's superintendence and to certiorari?

A s. 10A arbitrator is a statutory tribunal, subject to the judicial superintendence of the High Court, and his orders may be corrected by certiorari where there is an error of law apparent on the face of the record.

The starting proposition

The Court accepted the general rule that a purely private adjudicator is outside Article 227: where parties agree to abide by "the decision of a third person on whom law casts no obligation or duty to act judicially, such a person would not be a 'tribunal' within the meaning of Art. 227." Likewise "a person or a body of persons whose proceedings may not conform to statutory requirements and who possess a discretion as distinguished from a duty, to decide the dispute unfettered by any rules or regulations, may not be subject to the superintendence of the High Court under Art. 227."

Why a s. 10A arbitrator is different — the statutory scaffolding

Chandrachud J went through the Act, and this list is the substance of the case:

• s. 10A(1) — the employer and workmen may refer their disputes to arbitration to persons specified in the agreement;
• s. 10A(2) — the arbitration agreement must conform to the prescribed form;
• s. 10A(3) — a copy must be forwarded to the Government, which must publish it in the official gazette within fourteen days;
• s. 10A(4) — casts on the arbitrator the duty to investigate the dispute and submit the award to the Government;
• s. 2(b) — "award" includes an arbitration award under s. 10A;
• s. 17 — the award must be published by the Government within thirty days, and s. 17(2) gives the published award finality;
• s. 17A — it becomes enforceable on the expiry of thirty days from publication;
• s. 18(3) — once enforceable it binds the parties;
• s. 19(3) and (6) — it remains in operation for a year, subject to the Government's power to reduce or extend, and continues thereafter as provided.

An adjudicator whose form, duty, publication, finality, enforceability and duration are all fixed by statute is not a private arbitrator.

The English objection answered

Reliance was placed on English authority that certiorari or prohibition does not go to an ordinary arbitrator — that "it would be an enormous departure from the law relating to prerogative writs if we were to apply these remedies to an ordinary arbitrator."

The Court distinguished it on three grounds: first, "in England, the issue of prerogative writs is largely conditioned by historical reasons"; second, the arbitrators there were a purely private body to whom the reference was made under "a clause in the indenture of apprenticeship", and their "authority did not depend upon any statutory jurisdiction"; and third, Lord Goddard CJ's observation that a statutory arbitrator is one to whom by statute the parties must resort "cannot be read to mean that in no other case could a tribunal be deemed to be a statutory tribunal."

The conclusion

"In view of our conclusion that an arbitrator functioning under the powers conferred by S. 10A of the Industrial Disputes Act is subject to the judicial superintendence of the High Court, it must follow that the orders passed by such an arbitrator, who acts as a quasi-judicial body, are capable of being corrected by a writ of certiorari, provided of course there is an error of law apparent on the face of the record."

The Court added the necessary caution that it would not be justified in converting itself into a court of appeal on the merits.

An arbitrator appointed under an arbitration agreement under s. 10A of the Industrial Disputes Act is a statutory tribunal acting quasi-judicially, because the statute prescribes the form of the agreement, imposes a duty to investigate, and governs the publication, finality, enforceability and duration of the award. He is therefore subject to the High Court's superintendence under Article 227 and to certiorari for an error of law apparent on the face of the record.

• Direct question: Is a s. 10A arbitrator amenable to writ jurisdiction? Yes — give the statutory features that make him a statutory tribunal, then the limit: certiorari for error apparent on the face of the record, not an appeal on merits.
• Compare: Engineering Mazdoor Sabha v Hind Cycles on what counts as a "tribunal" for Article 136, and Province of Bombay v Kusaldas Advani on the duty to act judicially. These three together answer most questions on the supervisory jurisdiction over industrial adjudicators.
• Method worth copying: to decide whether a body is statutory, list what the statute supplies — form, duty, publication, finality, enforceability, duration. It is a checklist you can apply to any adjudicator.