Rahul Singh vs Indian Airlines Limited

Bhaskar Bhattacharya, J.—The order impugned in this application under Article 227 of the Constitution of India is one passed by an Arbitrator appointed under the provision of Arbitration Act, 1940 thereby rejecting an application for amendment of the Counter-statement filed by the Petitioner.

In my opinion, this application is not maintainable inasmuch as such an Arbitrator is not a ''tribunal'' within the meaning of Article 227 of the Constitution of India.

Mr. Gupta, the learned advocate appearing in support of this application by relying upon various decisions has contended that the proceedings before an Arbitrator are quasi Judicial proceedings and the Arbitrator is a quasi-judicial authority. Thus, relying upon the decision of the Apex Court in the case of Manmohan Singh Jaitla Vs. Commissioner, Union Territory of Chandigarh and Others, Mr. Gupta contended that Arbitrator is also a Tribunal within the meaning of Article 227 of the Constitution.

In the aforesaid decision, a teacher filed an application under Article 227 of the Constitution of India challenging approval of termination of service by the statutory authority u/s 3 of the Punjab Aided Schools (Security of Service) Act. The High Court declined to grant any relief on the ground that an aided school was not ''other authority'' under Article 12 of the Constitution and was not therefore amenable to writ jurisdiction. The Apex Court allowed the appeal against such an order holding that the High Court overlooked the point that Deputy Commissioner and Commissioner are statutory authorities under the aforesaid Act and were quasi judicial authorities and thus would be comprehended in the expression ''Tribunal'' as used in Article 227 of the Constitution.

In order to maintain an application under Article 227 of the Constitution against an order passed by an authority, the Petitioner must not only satisfy that such authority is a judicial or quasi judicial authority but also that such authority is constituted by the State. For the aforesaid reason domestic tribunals are excluded from the aforesaid expression ''Tribunal'' in Article 227 on the ground that they are not created by the State nor do they get their authority from State. Refer Durga Shankar Mehta Vs. Thakur Raghuraj Singh and Others,

In the case of Manmohan Singh Jaitla (Supra) the authorities were statutory authorities but an Arbitrator appointed under the provisions of Arbitration Act is not a statutory authority. Thus, the said decision is of no avail to the Petitioner.

Mr. Gupta next by referring to the provision contained in Section 21 of the Indian Penal Code contends that an Arbitrator appointed under the provision of the Arbitration Act, 1940 is a public servant and as such the function of an Arbitrator partakes a public character and amenable to the jurisdiction under Article 227 of the Constitution of India.

The aforesaid submission of Mr. Gupta, I am afraid, is not tenable. Even if it is assumed for the sake of argument that an Arbitrator is treated as a public servant for the purpose of a different statute, that does not make such person a statutory authority discharging quasi judicial function of a State.

Over and above, the Apex Court at least in two decisions The Engineering Mazdoor Sabha Representing Workmen Employed Under the Hind Cycles Ltd. and Another Vs. The Hind Cycles Ltd., Bombay, and Associated Cement Companies Ltd. Vs. P.N. Sharma and Another, specifically referred to the position of an Arbitrator under Arbitration Act, 1940 and concluded that such an Arbitrator is not a ''tribunal'' either within the meaning of Article 136 or Article 227 of the Constitution of India. It goes without saying that the word ''Tribunal'' used in Articles 136 and 227 has the same meaning.

Mr. Gupta, however, by relying upon the decision of the Apex Court in A.R. Antulay Vs. R.S. Nayak and Another, contended that those two decisions of the Apex Court should be ignored by this Court as ''per incuriam''. In view of the fact that the Apex Court in those two decisions considered the position of an Arbitrator appointed under the Arbitration Act, 1940, there is no scope of any argument that the Apex Court passed those decisions in ignorance of any statutory provision or any binding authority so as to apply the principles laid down in A.R. Antulay''s case (Supra). The aforesaid submission of Mr. Gupta is equally devoid of any substance.

Thus, the application under Article 227 of the Constitution of India is not maintainable and is dismissed accordingly.

No costs.