Reference Mechanisms under the

Industrial Disputes Act, 1947.

Done by: Windows User

[Company name]
M V Rahul,
[Date]
1287,
V Semester B-Section
 CONTENT

1. Introduction
2.
2. Meanings to the Provisions
6.
3. Scope of Reference under Section 10
10.
4. Case Laws to Section 10A
13.
5. Distinction between Adjudication and Arbitration
15.
6. Tribunal’s Jurisdiction
16.
7. Rights of a Badli Worker
18.
8. Industrial Disputes (Central) Rules, 1957
19.
8.1. Procedure for Reference of Industrial Disputes to the Boards of Conciliation,
Court of Enquiry, Labour Court, Industrial Tribunal or National Tribunal 19.
8.2. Arbitration Agreement
20.
9. Constitutionality of Section 10
22.
10. References
23.

pg. 1
 INTRODUCTION

Reference of a dispute under the Industrial Disputes Act, 1946 is mentioned in Section 10 and
10A of the Act. Of which, Section 10 envisages the reference powers which can exercised by the
Government, whether Centre or the State, and Section 10A envisages the power which can be
exercised by an individual, upon application for Arbitration.

10. Reference of disputes to Boards, Courts or Tribunals

(1)Where the appropriate government is of opinion that any industrial dispute exists or is
apprehended, it may at any time]1, by order in writing-
(a) refer the dispute to a Board for promoting a settlement thereof; or
(b) refer any matter appearing to be connected with or relevant to the dispute to a court for
inquiry; or
2
[(c) refer the dispute or any matter appearing to be connected with, or relevant to, the
dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for
adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute ,
whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a
Tribunal for adjudication:
Provided that where the dispute relates to any matter specified in the Third Schedule and is not
likely to affect more than one hundred workmen, the appropriate government may, if it so thinks fit,
make the reference to a Labour Court under clause (c):
3
[Provided further that where the dispute relates to a public utility service and a notice under section
22 has been given, the appropriate government shall, unless it considers that the notice has been
frivolously or vexatiously given that it would be inexpedient so to do make a reference under this
sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may
have commenced:
4
[Provided also that where the dispute in relation to which the Central Government is the appropriate
government, it shall be competent for that government to refer the dispute to a Labour Court or an
Industrial Tribunal, as the case may be, constituted by the State Government

1 Substituted by Act 18 of 1952, Section 3, for "If any industrial dispute exists or is apprehended, the appropriate
Government may".
2 Substituted by Act 36 of 1956, Section 7, for Clause. (c) (w.e.f. 10-3-1957).
3 Substituted by Section 7, ibid., for "Provided that" (w.e.f. 10-3-1957
4 Inserted by Act 46 of 1982, Section 8 (w.e.f. 21-8-1984)

pg. 2
5
[(1A) Where the Central Government is of opinion that any industrial dispute exists or is
apprehended and the dispute involves any question of national importance or is of such a nature that
industrial establishments situated in more than one State are likely to be interested in, or affected by,
such dispute and that the dispute should be adjudicated by a National Tribunal, then, the Central
Government may, whether or not it is the appropriate government in relation to that dispute, at any
time, by order in writing, refer the dispute or any matter appearing to be connected with, or relevant
to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third
Schedule to a National Tribunal for adjudication.]
(2) Where the parties to an industrial dispute apply in the prescribed manner, whether jointly or
separately, for a reference of the dispute to a Board, Court, 6[Labour Court, Tribunal or National
Tribunal], the appropriate government, if satisfied that the persons applying represent the majority of
each party, shall make the reference accordingly.
7
[(2A) An order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under
this section shall specify the period within which such Labour Court, Tribunal or National Tribunal
shall submit its award on such dispute to the appropriate government:
Provided that where such industrial dispute is connected with an individual workman, no such period
shall exceed three months:
Provided further that where the parties to an industrial dispute apply in the prescribed manner,
whether jointly or separately, to the Labour Court, Tribunal or National Tribunal for extension of
such period or for any other reason, and the presiding officer of such Labour Court, Tribunal or
National Tribunal considers it necessary or expedient to extend such period, he may for reasons to be
recorded in writing, extend such period by such further period as he may think fit:
Provided also that in computing any period specified in this sub-section, the period, if any, for which
the proceedings before the Labour Court, Tribunal or National Tribunal had been stayed by any
injunction or order of a civil court shall be excluded:
Provided also that no proceedings before a Labour Court, Tribunal or National Tribunal shall lapse
merely on the ground that any period specified under this sub-section had expired without such
proceedings being completed.]
(3) Where an industrial dispute has been referred to a Board, 8[Labour Court, Tribunal or National
Tribunal] under this section, 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.
[(4) Where in an order referring an industrial dispute to a Labour Court, Tribunal or National
9

Tribunal] under this section or in a subsequent order, the appropriate government has specified the

5 Inserted by Act 36 of 1956, Section 7 (w.e.f. 10-3-1957).

6 Substituted by Section. 7, ibid, for "or Tribunal" (w.e.f. 10-3-1957).
7 Inserted by Act 46 of 1982, Section. 8 (w.e.f. 21-8-1984).
8 Substituted by Act 36 of 1956, Section. 7, for "or Tribunal" (w.e.f. 10-3- 1957).
9 Inserted by Act 18 of 1952, s. 3.

pg. 3
points of dispute for adjudication, 10[the Labour Court or the Tribunal or the National Tribunal], as
the case may be, shall confine its adjudication to those points and matters incidental thereto.
(5) Where a dispute concerning any establishment or establishments has been, or is to be, referred to
a 11[Labour Court, Tribunal or National Tribunal] under this section and the appropriate government
is of opinion, whether on an application made to it in this behalf or otherwise, that the dispute is of,
such a nature that any other establishment, group or class of establishments of a similar nature is
likely to be interested in, or affected by, such dispute, the appropriate government may, at the time of
making the reference or at any time thereafter but before the submission of the award, include in that
reference such establishment, group or class of establishments, whether or not at the time of such
inclusion any dispute exists or is apprehended in that establishment, group or class of establishments.
12
[(6) Where any reference has been made under sub-section 1A to a National Tribunal, then
notwithstanding anything contained in this Act, no Labour Court or Tribunal shall have jurisdiction
to adjudicate upon any matter which is under adjudication before the National Tribunal, and
accordingly-
(a) if the matter under adjudication before the National Tribunal is pending in a proceeding
before a Labour Court or Tribunal, the proceeding before the Labour Court or the Tribunal, as
the case may be, insofar as it relates to such matter, shall be deemed to have been quashed on
such reference to the National Tribunal; and
(b) it shall not be lawful for the appropriate government to refer the matter under adjudication
before the National Tribunal to any Labour Court or Tribunal for adjudication during the
pendency of the proceeding in relation to such matter before the National Tribunal.]
[Explanation: In this sub-section "Labour Court" or "Tribunal" includes any court or Tribunal or
13

other authority constituted under any law relating to investigation and settlement of industrial
disputes in force in any State.]
(7) Where any industrial dispute, in relation to which the Central Government is not the appropriate
government, is referred to a National Tribunal, then, notwithstanding anything contained in this Act,
any reference in section 15, section 17, section 19, section 33A, section 33B and section 36A to the
appropriate government in relation to such dispute shall be construed as a reference to the Central
Government but, save as aforesaid and as otherwise expressly provided in this Act, any reference in
any other provision of this Act to the appropriate government in relation to that dispute shall mean a
reference to the State Government.
14
[(8) No proceedings pending before a Labour Court, Tribunal or National Tribunal in relation to an
industrial dispute shall lapse merely by reason of the death of any of the parties to the dispute being a
workman, and such Labour Court, Tribunal or National Tribunal shall complete such proceedings
and submit its award to the appropriate government.]

10 Substituted by Act 36 of 1956, Section. 7, for "a Tribunal" (w.e.f. 10-3- 1957).
11 Substituted by Section 7. ibid. for "Tribunal" (w.e.f. 10-3-1957).
12 Inserted by Section 7, ibid. (w.e.f. 10-3-1957).
13 Inserted by Act 36 of 1964, s. 5 (w.e.f. 19-12-1964).
14 Inserted by Act 46 of 1982, s. 8 (w.e.f. 21-8-1984).

pg. 4
15
10A. 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 section 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.
16
1A. Where an 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. An arbitration agreement referred to in sub-section (1) shall be
in such form and shall be signed by the parties thereto in such manner as may be prescribed.
(2) An arbitration agreement referred to in sub-section (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 arbitration agreement shall be forwarded to the appropriate Government and
the conciliation officer and the appropriate Government shall, within 17[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
18

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-section (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.
19
4A Where an industrial dispute has been referred to arbitration and a notification has been
issued under sub-section (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.

15 Inserted by Act 36 of 1956, s. 8 (w.e.f. 10-3-1957).

16 Inserted by Section. 6, ibid. (w.e.f. 19-12-1964)
17 Substituted by Act 36 of 1964, s. 6, for "fourteen days" (w.e.f. 19-12- 1964
18 Inserted by Section 6, ibid. (w.e.f. 19-12-1964).
19 Inserted by Section 6, ibid. (w.e.f. 19-12-1964).

pg. 5
 MEANINGS TO THE PROVISIONS

Section 10(1) confers discretionary power on the Government and this discretionary power can
being satisfied that an industrial dispute exists or is apprehended. There must be some material
before the Government on the basis of which it forms an opinion that an industrial dispute exists or is
apprehended. The power conferred on the Appropriate Government is an administrative power and
the action of the Government in making the reference is an administrative act. The adequacy or
sufficiency of the material on which the opinion was formed is beyond the pale of judicial scrutiny. If
the action of the Government in making the reference is impugned by a party it would be open to
such a party to show that what was referred was not an industrial dispute and that the tribunal had no
jurisdiction to make the award but if the dispute was an industrial dispute, its factual existence and
the expediency of making a reference in the circumstances of a particular case are matters entirely
for Government to decide upon, and it will not be competent for the Court to hold the reference bad
and quash the proceedings for want of jurisdiction merely because there was, in its opinion, no
material before Government on which it would have come to an affirmative conclusion on those
matters.20

Ordinarily and generally in a large number of cases, a reference

Under Section 10(1A) the Central Government may refer a dispute to a National Tribunal for
adjudication if it’s of the opinion that:-

1. Any dispute exists or is apprehended; or

2. The dispute involves any question of national importance; or
3. The dispute is of such a nature that industrial establishments situated in more than one State
are likely to be interested in, or affected by such dispute; or
4. The dispute should be adjudicated by a National Tribunal.

It’s further provided that the reference to National Tribunal shall be made by the Central
Government only whether it’s Appropriate Government in relation to that dispute or not. The
reference must be by order in writing. The Central Government may refer the dispute or any matter
appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified
in the Second Schedule or the Third Schedule.

20 A.S. Production Agencies v. Industrial Tribunal, Haryana, AIR 1979 SC SC 170; State of Madras v. C.P. Sarathy, AIR
1953 SC 53

pg. 6
 Section 10(2) of the Act provides for compulsory reference of an industrial dispute by the
Appropriate Government. The two conditions that make it obligatory for the Appropriate
Government to make a reference are:

1. An application in the prescribed manner made by the parties to an industrial dispute, whether
made jointly or separately;
2. Satisfaction of the Appropriate Government as to the fact that the person applying represent
the majority of the party.

If these two conditions are fulfilled then the industrial dispute may be referred to Board, Court,
Labour Court, Tribunal or National Tribunal.

Section (2A) of the Act requires an order referring a dispute to a Labour Court, Tribunal or
National Tribunal under this Section shall specify the period within which such Labour Court,
Tribunal or National Tribunal shall submit its award such dispute to the Appropriate Government.

Section 10(3) of the Act provides that where an industrial dispute has been referred to Board,
the Labour Court, Tribunal or National Tribunal under Section 10 of the Act, Appropriate
Government may issue an order prohibiting the continuance of any strike or lock-out in connection
with such dispute which may be in existence on the date of reference.

The scope of an adjudication proceeding is laid down in Section 10(4) of the Act. Where an
order making the reference of any industrial dispute to any authorities as mentioned in this section
has been made and wherein the points of dispute for adjudication are specified the adjudication are
specified the adjudication shall be confined only to those points and the maters incidental thereto.

Sub-section (5) of the Section 10 empowers the Appropriate Government to include at the time of
making the reference or at any time before the submission of the award, any other establishment,
group or class of establishments of a similar nature, which is or is likely to be interested in or
affected by the dispute. Such inclusion is permissible whether at the time of inclusion any dispute
exists or is apprehended in that establishment, group or class of establishments. Whether the dispute
is of such a nature that any other establishment, group or class of establishments of a similar nature is
likely to be interested in or affected by such dispute or not is the absolute discretion of the
Appropriate Government. The Appropriate Government may arrive at such a conclusion either on an
application being made to it or otherwise.

Section 10(6) of the Act provides that where any reference has been made under sub-section
(1A) to a National Tribunal, then notwithstanding anything contained in this Act, no Labour Court or

pg. 7
Tribunal shall have jurisdiction to adjudicate upon any matter which is under adjudication before the
National Tribunal and accordingly:

a. If the matter under adjudication before the National Tribunal is pending in a proceeding
before a Labour Court or Tribunal, the proceeding before the Labour Court or Tribunal, as the
case may be, in so far as it relates to such matter, shall be deemed to have been quashed on
such reference to the National Tribunal ; and
b. It shall not be for the Appropriate Government to refer the matter under adjudication before
the National Tribunal to any Labour Court or Tribunal for adjudication during the pendency
of the proceeding in relation to such matters before the National Tribunal.

Explanation. - In this, ‘Labour Court’ or ‘Tribunal’ includes any Court or Tribunal or other
authority constituted under any law relating to investigation and settlement of industrial disputes in
force in any State.

Section 10(7) of the Act provides that where a reference of a dispute in relation to which the
Central Government is not the Appropriate Government, is made to a National Tribunal, then
notwithstanding anything contained in Section 15, 17, 19, 33A and 36A the Appropriate Government
in relation to such dispute shall be the Central Government. But save as aforesaid and of this Act, any
reference in any provisions of this Act to the State Government in relation to that dispute shall mean
a reference to the State Government.

Section 10(8) of the Act provides that no proceeding pending before a Labour Court, Tribunal or
National Tribunal in relation to an industrial dispute shall lapse merely by reason of the death of any
of the parties of the dispute being a workmen, and such Labour Court, Tribunal or National Tribunal
shall complete such proceedings and submit its award to the Appropriate Government.

Section 10A of the Act differs from Section 10 of the Act mainly in one respect. Section 10 of
the Act provides for reference of an industrial dispute by the Government either on its own or on an
application having been made to it by the parties to the dispute. The arbitrator under Section 10 is
appointed by the Government making such reference. But Section 10Aof the Act authorizes the
parties to a dispute themselves to choose their own arbitrator, including a Labour Court, Tribunal
or National Tribunal.

Section 10A (1) provides that where any industrial dispute exists or is apprehended and the
employer and the employee agree to refer the dispute to arbitration, they may refer the dispute to
arbitration. Such reference by agreement may be made at any time before the dispute has been
referred under Section 10 to Labour Court, Tribunal or National Tribunal. The agreement, between
pg. 8
the parties to an industrial dispute, to make a reference must be in writing. The reference shall be
made to such person or persons (including the presiding officer of a Labour Court, Tribunal or
National Tribunal.) as an arbitrator or arbitrators as may be specified in the arbitration agreement.

Section 10A (1A) provides that where an arbitration agreement provides for 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 reference, if the arbitrators are equally divided in their
opinion. The award of the umpire shall prevail and shall be deemed to be arbitration award for the
purpose of this Act.

Section 10A (2) provides that an arbitration agreement referred to in sub-section (1) shall be in
such form and shall be signed by the parties thereto in such manner as may be prescribed.

Section 10A (3) provides that a copy of the arbitration agreement shall be forwarded to the
Appropriate Government and the conciliation officer, and the Appropriate Government shall be
within one month from the date of the receipt of a copy publish the same in the Official Gazette.

Sub-section (3A) provides that where an industrial dispute has been referred to the Appropriate
Government is satisfied that the persons making the reference represented the majority of each party,
the Appropriate Government may, within one month from the date of such copy, issue a notification
in the prescribed manner. When any such notification is issued the employers and 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 arbitrators or arbitrators.

Section 10A (4) the arbitrator or arbitration shall investigate the dispute and submit to the
Appropriate Government the arbitration award signed by the presenting by the signed by the
arbitrator or all arbitrators as the case may be.

Under Sub-section (4A) where an industrial dispute has been referred to arbitration and a
notification has been issued under sub-section (3A), the Appropriate Government may 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. The Appropriate Government shall do so try by issuing an order.

Sub-section (5) provides that nothing in the Arbitration Act, 1940 shall apply to arbitration under
this section.

pg. 9
 SCOPE OF REFERENCE UNDER SECTION 10

Section 10(1) and 10(4) of the Act lays down the scope of reference. Under Section 10(1)
matters appearing to be connected with or relevant to the dispute may be referred and under Section
10(4) the scope of reference shall be confined to specified points of dispute and matters incidental
thereto. Unless a dispute was raised by the workmen with their employer it could not become an
industrial dispute.21 The scope of reference under Section 10 has to be to be gathered from the
circumstances preceding the Government Order.22

Sections 10 and 10A are the alternative remedies to settle an industrial dispute. Once the parties
have chosen the remedy under Section 10A, the Government cannot refer the same dispute for
adjudication under Section 10. Of any such reference is made, it’s invalid.23

In Tamil Nadu Joint Action Council and Textile Trade Union v. Government of Tamil Nadu &
Ors,24 there was dispute between Textile Mills in Tamil Nadu and their workmen. The Government
of Tamil Nadu referred the dispute leaving out ten Mills on the ground that there was a settlement in
force between such Mills and its workmen. The Joint Action Council challenged the order leaving
out ten Mills from reference. It was held that since dispute was industry-wise and not establishment-
wise dispute, the ten Mills should have been included in the reference and it should have been left to
the Management of the Mills to object to the reference before the Tribunal.

In Hotel Imperial, New Delhi v. Hotel Workers Union 25, some workmen working in a Hotel in
New Delhi were suspended pending disposal of applications under Section 33 of the Act. The
Industrial Tribunal directed that usual wages and an additional sum of Rs. 25 per month in lieu of
food should be paid to the workmen as interim relief. The Supreme Court observed that interim relief
can be granted as a matter incidental to the main question, without being itself referred in express
terms but the interim relief should not be the whole relief that the workmen would get if they
succeeded finally. Where a settlement was arrived at regarding payment of wages including Dearness
Allowances which had the character of interim relief and a dispute subsequently arose on the
question of Dearness Allowance payable to monthly rated and daily rated employees and also about
certain employees, a reference by the State Government to the Industrial Tribunal was held to be
within the scope of Section 10.
21 Sindhu Resttlement Corporation Ltd v. Industrial Tribunal of Gujarat, AIR 1968 SC 529.
22 Jaipur Udyog Ltd. v. C.W.K. Sangh, AIR 1972 SC 1352
23 Karnal L.K. Sanghatan v. Liberty Footwear Company, (1989) 2 LLJ 550 (SC)
24 AIR 1969 SC 1341
25 (1987) 1 LLJ 105(SC)

pg. 10
 In Makham Singh v. Narainpura Co-Operative Agricultural Service Society Ltd & Ant 26, the
service of a Secretary of a Co-Operative Society was terminated without conducting a domestic
enquiry about the charges of embezzlement made against him. The dispute relating to his termination
was referred was referred for adjudication and the Labour Court rejected the claim of the employee
after gibing a finding that the employee had committed embezzlement and had absented himself
from duty without obtaining leave. In support of the charge of the embezzlement only photocopies of
certain entries were exhibited and originals were not produced before the Labour Court. The
management pleaded that the employee was on strike without getting leave. According to the
employee photocopies were fabricated document and he was not able to attend to his duties as he
was ill. It was held that photocopies of entries cannot be accepted as evidence in the absence of
originals to support charge of embezzlement and the question of obtaining leave will not arise when
employee is said to have gone for leave. Further there is no reason for not accepting that he was ill
and therefore, was not able to attend to his duties. The termination was held to be unjustified and the
society was asked to reinstate the employee with full back-wages. The Supreme Court directed the
Labour Court to find out whether the employee had worked in any other society after termination of
his service as pleaded and if so the amount of back wages shall be reduced by the amount of salary
drawn by the employee during the period.

The jurisdiction of the Tribunal in industrial disputes is limited to the points specifically referred
for its adjudication and to matters incidental thereto and the Tribunal cannot go beyond the terms of
reference. Where the very terms fact of closure of its business by the employers and the references
were limited to the narrow question as to the point as to question as to whether the closure was
proper and justified, the tribunals by the very terms of the references, had no jurisdiction to go
behind the facts of closure and inquiry into the question whether the business was in fact closed
down by the management.27

It’s not well established that the discretion is either unfettered nor arbitrary, for Section 10(1)
clearly provides that there must exist an “industrial dispute” as defined in the Act or such dispute
must be apprehended before the Government decides to refer it. 28 The only relevant factor is
consideration in making reference under Section 10 is whether an industrial dispute exists or is
apprehended.29 It’s necessary for the Government to be satisfied about the one or the other. 30 There is
26 (1987) 2 LLJ 533(SC)
27 Pottery Mazdoor Panchayat v. Perfect Pottery Co., AIR 1979 SC 1356
28 Western India Match Co. Ltd v. Western India Match Co. Workers Union, (1970) 3 SCR 370: AIR 1970 SC 1205; State
of Madras v. C.P. Sarathy (1953) 4 SCR 334: AIR 1953 SC 53
29 Ruston & Hornsby (I) Ltd. v. T.B. Kadam, (1976) 1 SCR 119: (1976) 3 SCC 71
30 I.T.C. Ltd., Monghyr, Bihar v. Presiding Officer, Labour Court, Patna (Bihar), (1978) 3 SCR 1044: AIR 1978 SC 1428

pg. 11
no indication in Section 10 to any further requisite or condition to be satisfied in order to sustain the
continued validity of the reference until it ends in an award.31

It is manifest that the dispute or difference between employers and workmen must be connected
with the employment or non-employment or the terms of employment or with conditions of labour of
any person. No other relief de hors or outside the Act can be claimed on general principles of
jurisprudence. “Jurisdictional essence is the presence of an industrial dispute. No industrial dispute,
no valid arbitral reference. Once the truth is grasped, the rest of the logic is simple”. Unless the
condition that the dispute is an industrial dispute is satisfied, no reference can be made. Consent
cannot be created or conferred jurisdiction.32

The purpose sought to be achieved by the Act has been has been well defined in the preamble to
the Act. The scope of industrial dispute is defined in Section 2(k) of the Act and the various
industrial disputes, which may arise between the employers and their workmen, which may have to
be referred for adjudication, are indicated in general terms.

It is a well settled principle of law that if a person sets up a plea of existence of relationship of
employer and employee, the burden would be upon him to

Declining to refer despite of a trainee not improper. 33 There is no time-limit to refer a dispute for
adjudication.34 Declining to refer a dispute being barred by limitation will not be justified. 35 A
dispute, either in existence or even apprehended, cane be referred for adjudication. 36 Reference of
Industrial Dispute could not be quashed merely because on the ground of delay. 37 Reference made
and later withdrawn, a fresh reference for adjudication is not bareed in law.38

31 Working Journalists of ‘Hindu’ v. The Hindu, AIR (1961) I LLJ 28P(M)

32 Rohtas Industrial Ltd. v. Staff Union, AIR 1976 SC 425: (1976) I LLJ 274
33 Nilesh Shivaji Sapkar v. State of Maharashtra through Secretary Labour Department Mantralya, Mumbai 2015 LLR
733 (Bom HC)
34 Bharat Heavy Electricals Ltd. v. State of Uttarakhand, 2011 LLR 104(SN); 2010 (127) FLR 387 (Uttr HC)
35 Ramkumar Suryavanshi v. State of Chatisgargh, 2007 LLR 142(P&H)
36 Triveni Engineering and Industrial Ltd. v. State of Uttar Pradesh, 2007 LLR 893 (SN) (All)
37 Narendra Kumar Barik v. State of Orrisa, 2015 LLR (SN) 335.
38 Bhim Sen Sharma v. Presiding Officer, Patiala, 2010 (124) FLR 281 (P&H)

pg. 12
 CASE LAWS TO SECTION 10A

The award of the arbitrator has the same force and sanctity as an award given by other
authority created under the Act, viz., the Labour Court, the Industrial Tribunal or the National
Tribunal. Duty to cast on the arbitrator under Sub-Section (4) of Section 10A to submit his award to
the Government, and the Government is required by Section 17 to publish the award within a period
of 30 days. The provisions which lays down that “the arbitrator shall investigate the dispute”, that he
that he has the power to administer an oath and that the parties shall have the right to examine and
cross-examine witnesses, shows that the proceedings’ before the arbitrator are quasi-judicial
proceeding and that the arbitrator must function within the limits of his powers as defined by the Act
and the rules.39

The decision of the arbitrator in a reference being quasi-judicial, the award should ex-facie
show the reasons on which it is based. If the award is made without giving any reason it is arbitrary.40

The arbitrator has to follow the same procedure as other authorities mentioned in Section 11 of
the Act, which must consistent with the principles of natural justice. Arbitrator under Section 10A is
subject to the same limitations as a Labour Court or Tribunal and cannot travel beyond the terms of
reference.41 But he can mold the relief according to the circumstances.42

No cognizance can be taken by the arbitrator of demands which do not constitute industrial
dispute. The consent of the parties cannot create arbitral jurisdiction under the Act.43

If the arbitration agreement, for any reason is not a valid one, the arbitrator will have no
jurisdiction to decide the dispute.44 The provision relating to attestation of the arbitration agreement
on behalf of the workmen both by the president and the Secretary of trade union is mandatory; and
non-compliance thereof would render the agreement invalid.45

39 Air Corporation’s Employees Union v. D.C. Vyas, (1962) 64 Bom LR 1

40 Rohtak Del Transport (Pvt.) Ltd. v. Risal Singh, The contrary view in Management of Daily Aljamait v. Gopi Nath
Aman, (1976) ILR 652 (Del.): 1977 Lab IC 1953(D), is with respect, inconsistent with the judicial trend of importing the
requirement of a decision to the supported by reasons.
41 Vaikuntam Estate v. Arbitrator, (1968) I LLJ 93 (Mad): 1968 Lab IC 1569
42 Coimbatore-Salem Transports (Pvt.) Ltd. v. Their Workmen, (1967) II LLJ 120(M)
43 Rohtas Industrial Ltd. v. Staff Union, (1976) 3 SCR 12: (1976) 2 SCC 82
44 Ved Prakash v. Ram Narain Goyel, 1976 Lab IC 1375(D); State of Bihar v. Nathuanic Pandey, 1971 Lab IC 1493(P)
45 Rule 8(b) of the Industrial Disputes (Bihar) Rules, 1961: Rule 8(b): In the case of workmen, either by the President
and Secretary of a trade union of the workmen or by five representatives of the workmen duly authorised in this behalf at
a meeting of the workmen held for the purposes.

pg. 13
 In Karnal Karamchari Sanghatan v. Liberty Footwear Company,46 the arbitration agreement was
not published in the Official Gazette as required under Section 10A(3) and the award made without
such publication. The Supreme Court held that publication of the arbitration agreement under Section
10A (3) was not an idle formality, directed publication of the arbitration agreement within four weeks
and appointed another arbitrator.

An arbitrator appointed under Section 10A can reappraise he evidence held in the domestic
inquiryand satisfy himself whether the evidence led by the employer established misconduct against
the workmen by virtue of the jurisdiction conferred by Section 11A of the Act. It cannot be held that
the arbitrator has only the power to decide whether the conclusions reached by the enquiry officer
were plausible one, deducible from the evidence led in the enquiry and not to appreciate the evidence
itself and to reach the conclusion whether the misconduct alleged against the workmen has been
established or not.47

An arbitrator appointed under Section 10A is not a Tribunal as referred therein and an appeal
against his award before the Supreme Court under Article 136 of the Constitution is not competent.48

The procedure set out in Section 10A and the source of the binding force of the award on
publication is part of methodology of dispensation of justice. 49 An award under Section 10A is not
insulated from interference under Article 226 of the Constitution.50 A writ of certiorari can be issued
if the finding of the arbitrator cannot be supported by any material or is perverse or it is based on
irrelevant materials.51 An award made by the arbitrator pursuant to the agreement in the conciliation
proceedings under Section 12(3) is amendable to Writ Jurisdiction.52

46 (1989) II LLJ 550 (SC): AIR 1990 SC 247: (1989) 4 SCC 448
47 Rajinder Kumar Kindra v. Delhi Administration, (1984) II LLJ 517(SC)
48 Engineering Mazdoor Sabha v. Hind Cycles Ltd., AIR 1963 SC 874
49 Rohtas Industries Ltd. v. Staff Union, (1976) 3 SCR 12
50 Mis. P.C. Roy & Co. (India) Pvt. Ltd. v. Raycom Forests Labour Union, AIR 1964 SC Cal 221
51 Vaikuntam Estate v. Arbitrator, (1968) I LLJ 93; Rohtas Industries Ltd. v. Workmen, (1968) I LLJ 710(P)
52 Ramkrishna Kulwantrai Steels (P.) Ltd. v. Workmen, (1977) I LLJ 382(FB)

pg. 14
 DISTINCTION BETWEEN ADJUDICATION AND ARBITRATION

Section 10 and 10A of the Industrial Disputes Act, 1947, provides alternative remedies to
settle an Industrial Dispute. An Industrial Dispute can either be referred to an Industrial Tribunal for
adjudication under Section 10 or the parties’ can enter into an arbitrator appointed by them to give
his award under Section 10A. Once the parties have chosen their remedy under Section 10A, the
Appropriate Government cannot refer their dispute for adjudication under Section 10. 53 Where the
Appropriate Government refers the dispute between the workmen and the employer to an Industrial
Tribunal for adjudication under Section 10, even after certain workmen have chosen to adopt the
procedure laid down in Section 10A, the decision of the Industrial Tribunal would not be binding on
the workmen who had entered into arbitration agreement. Similarly, the arbitration award given by
the arbitrator will not be binding only on those workmen who referred the dispute to arbitration and
not on the other workmen.54

53 Karnal leather Karamchari Sanghatan v, Liberty Footwear Company, (1989) 4 SCC 448: AIR 1990 SC 247
54 North Orissa Workers Union v. State of Orissa, (1971) II LLJ 199(Ori)

pg. 15
 TRIBUNAL’S JURISDICTION

In Calcutta Port Shramik Union v. The Calcutta River Transport Association & Ors, 55 the
Wage Board set up by the Central Government for the Port and Dock Workers in the major ports did
not make any recommendations in respect of bargemen. Hence, an industrial dispute was raised by
bargemen claiming the benefit of Wage Board recommendation and the dispute was referred to
National Tribunal. The National Tribunal was of the view that bargemen were dock workers and
were as such entitled to wages in accordance with Wage Board recommendations. It was held that the
Courts exercising judicial review should attempt to sustain the awards made by the Tribunals as far
as possible instead of picking holes in the award on trivial points, ultimately frustrating the entire
adjudication process before the Tribunal by striking down the awards on hyper-technical grounds.
The Tribunal was justified in coming to the conclusion that bargemen were also dock workers and
there is no justification in denying them the benefits of the recommendation of the Wage Board. Such
award is within its jurisdiction.

In Kamal Kishore Lakshman v. The Management of M/s. Pan American World Airways Inc. &
Ors,56 the service of an employee was terminated on the ground of loss of confidence without
holding any domestic inquiry. It was held that, where no inquiry was held before disciplinary action
was taken, it would be open to the employer to ask for such opportunity in the course of adjudication.
In case of a workmen the termination order could be justified even in the course of adjudication
before the appropriate Tribunal even though no enquiry had been conducted earlier.

In Firestone Tyre and Rubber Co. v. Workmen,57 it was held that where no enquiry has been held or
the inquiry is not proper, the Tribunal has jurisdiction to allow the management to lead evidence to
justify its action. The Tribunal cannot award reinstallment merely because the domestic inquiry was
illegal.

In River Steam Navigation Co. v. Second Industrial Tribunal. West Bengal 58, the Calcutta High Court
held that a Writ could not stall the adjudication of an industrial dispute merely on the preliminary
questions as to the maintainability of the reference unless it could be shown of the satisfaction of the
Court that the reference unless the face of it is void inoperative.

55 (1989) I LLJ 223 (SC)

56 (1987) I LLJ 107 (SC)
57 (1981) II LLJ 318 (SC)
58 (1990) Lab IC 675(Cal)

pg. 16
 In Management of Rangaswamy & Co. v. D.V. Jagdish, 59, the main dispute sight to be decided
was that order of removal was null and void. The workmen sought interim relief. The employer
disputed the status of the concerned person as a workmen but Labour Court without deciding
whether the individual concerned was a workmen or not granted interim relief. It was held that
before granting interim relief, the Labour Court ought to have decided the preliminary issue whether
claimant was a workmen or not.

In case of lay-off the claim of the workmen to receive compensation shall be governed by the
provisions of Chapter V-A... But in a reference under Section 10(1) it’s open to the Tribunal or the
Court to award a lesser sum depending upon the justifiability of the lay-off.60

In case of closure of industry or taking over of an undertaking by another subsequent to a

reference of an industrial dispute under Section 10 for adjudication, the adjudication does not
become abortive specially when it relatives to a calm for bonus for past period. 61 If the workmen ask
for better conditions of service it be would useless for Tribunal to complete the adjudication where
the industry is not in existence, but where the dispute is over the claim to benefits by way of bonus
for the work done in the past the Tribunal must complete the adjudication and make its award.62

59 (1992) I LLJ 133(SC)

60 Workmen F.T. & R. Co. v. F.T. & R. Co., AIR 1976 SC 1775
61 U.P. Electricity Supply Co. v. The Workers, AIR 1971 SC
62 Ibid.

pg. 17
 RIGHTS OF A BADLI WORKER

In Karnataka State Road Transportation Corporation v. S.G. Kotturappa 63, the workmen had
been engaged as “badli” workers. Their services having been found to be not satisfactory were
terminated. It was contended that they had undergone a process of selection in terms of the
Karnataka State Road Corporation (Cadre and Recruitment) Regulations framed under the Road
Corporation Act and thus derived a right to continue in service. It was submitted that the conditions
of their service being governed by the statutory regulations as contra-distinguished from contractual
terms, the right to continue in service was statutory right. They had no case that they had completed
240 days of service during the period of 12 months preceding terminations as contemplated under
Section 25F read with Section 25B of the Industrial Disputes Act. The Supreme Court observed:

“The Badli workers thus did not acquire a legal right to continue in service. They were not
entitled to the protection under the Industrial Disputes Act nor were the mandatory
requirements of Section 25F of the Industrial Disputes Act required to be complied with
before terminating his services, unless they complete 240 days service within a period of
twelve months preceding the date of termination.

In Bangalore Metropolitan Transport Corporation v. T.V. Anandappa 64, the respondent was a
Badli conductor before he was removed from service. The Supreme Court held that in view of what
had been stated in the above judgement,65 the Respondent had no right under the Industrial Disputes
Act and the Labour Court should not have adjudicated the dispute. The Supreme Court added that, in
essence, the reference made to the Labour Court was incompetent.

63 (2005) II LLJ 161: (2005) 3 SCC 409.

64 (2009) III LLJ 233: (2009) 7 JT 62: 2009 Lab IC 3161
65 Karnataka State Road Transportation Corporation v. S.G. Kotturappa, (2005) II LLJ 161: (2005) 3 SCC 409.

pg. 18
 INDUSTRIAL DISPUTES (CENTRAL) RULES, 1957

Procedure for Reference of Industrial Disputes to the Boards of Conciliation, Court of Enquiry,
Labour Court, Industrial Tribunal or National Tribunal
Rules 3 envisages the application of the Rules under Sub-Section (2) of Section 10 for the
reference of an industrial dispute to a the Boards of Conciliation, Court of Enquiry, Labour Court,
Industrial Tribunal or National Tribunal shall be made in Form A and send to the Secretary to the
Government of India in the Ministry of Labour and Employment the Chief Labour Commissioner
and the Regional Labour Commissioner and the Assistant Labour Commissioner concerned. The
application shall be accompanied by a statement setting forth:

a. The parties to the dispute;

b. Specific matters in dispute;
c. Total number of workmen employed in the undertaking affected;
d. Estimate of the number of workmen affected or likely to be affected by the dispute; and
e. The efforts made by the parties themselves to adjudicate the dispute.

Rule 4 states that the application made must be accompanied be signed by:

a. In case of an employer by the employer himself or when, the employer is an incorporated

company or other body corporate, by the agent, manager or other principal officer of the
Corporation;
b. In case of workmen, either by the President and Secretary of a trade union of the workmen, or
by five representatives of the workmen duly authorized in this behalf at a meeting of the
workmen held for the purpose;
c. In case of an individual workmen himself or by any officer of the trade union of which he is a
member or by another workman in the same establishment duly authorised by him in this
behalf;

Provided that such workmen is not a member of a member of a different trade union.

Rule 5 states that the appointment of a Board, Court, Labour Court, Tribunal or National
Tribunal together with the names of persons constituting the Board, Court, Labour Court, Tribunal or
National Tribunal shall be notified in the Official Gazette.

Rule 6(1) states that if the Central Government proposes to appoint a Board, it shall send a notice
in Form B to the parties requiring them to nominate within a reasonable time, persons to represent
them on the Board. Rule 6(2) states that the employer shall be sent to the employer personally, or if

pg. 19
the employer is incorporated company or a body corporate, to the agent, manager or other principal
officer of such company or body.

Rule 6(3) states that the notice to the workmen shall be send:

a. In case of workmen who are members of a trade union, to the President or Secretary of the
trade union; and
b. In case of workmen who are not members of a trade union, to any one of the five
representatives of the workmen who have attested the application made under rule 3; and in
this case a copy of the notice shall be sent to the employer who shall display copies of the
notice boards in a conspicuous manner at the main entrance to the premises of the
establishment.

Arbitration Agreement

Rule 7 states that an arbitration agreement for the reference of an industrial dispute to an
arbitrator or arbitrators shall be made in Form C and shall be delivered personally or forwarded by
registered post to the Secretary to the Government of India in the Ministry of Labour (in triplicate)
the Chief Labour Commissioner (Central), New Delhi, and the Regional Labour Commissioner
(Central) and the Assistant Labour Commissioner (Central) concerned. The agreement shall be
accompanied by the consent, in writing, of the arbitrator or arbitrators.

Rule 8 states that the arbitration agreement shall be signed—

(a) in the case of an employer, by the employer himself, or when the employer is an incorporated
Company or other body corporate by the agent, manager, or other principal officer of the
Corporation;
(b) in the case of the workmen, by any officer of a trade union of the workmen or by five
representatives of the workmen duly authorised in this behalf at a meeting of the workmen
held for the purpose;
(c) in the case of an individual workman, by the workman himself or by any officer of a trade
union of which he is a member or by another workman in the same establishment duly
authorised by him in this behalf: Provided that such workman is not a member of a different
trade union.

Explanation.—in this rule “officer” means any of the following officers, namely:—

(a) the President;

pg. 20
(b) the Vice-President;
(c) the Secretary (including the General Secretary);
(d) a Joint Secretary;
(e) any other officer of the trade union authorised in this behalf by the President and Secretary of the
Union.
Rule 668A states that where an industrial dispute has been referred to arbitration and the
Central Government is satisfied that the persons making the reference represent the majority of each
party, it shall publish a notification in this behalf in the Official Gazette for the information of the
employers and workmen who are not parries to the arbitration agreement but are concerned in the
dispute.

66 Inserted by General Statutory Rules dated on 16th March 1965

pg. 21
 CONSTITUTIONALITY OF SECTION 10

The validity of Section 10 of the Act has been upheld by the Supreme Court in the matter of
D.C. and G. Mills v. Shambhu Nath67, alleging that Section 10 violated Article 14 of the Constitution.
It was held that, it would not be permissible to raise the question again by submitting a new ground
be raised to sustain the objection. It’s certainly easy to discover fresh ground of attack to sustain the
same objection, but that cannot be permitted once the law has been laid down by the Court holding
that Section 10 of the Act does not violate Article 14 of the Constitution.

67 AIR 1978 SC 8

pg. 22
 REFERENCE

 Vithalbhai B. Patel, Law of Industrial Disputes, Volume 1, 4th Edition (2010) Lexis Nexis
Butterworths Wadha, Nagpur.
 S.N. Misra, Labour & Industrial Law, 28th Edition (2016), Central Law Agency, Allahabad.
 H L Kumar, Case Law Referencer 2007 to 2016 on Industrial & Labour Law, Universal Law
Publishing Company, New Delhi.

pg. 23