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“Arbitration of Industrial Disputes: Shadows of Compulsory Adjudication,”

Punjab University Law Review, December issue, pp.1-17.

Article · January 1992

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 ARBITRATION OF INDUSTRIAL DISPUTES: SHADOWS OF
COMPULSORY ADJUDICATION1
DEBI S. SAINI 2

I. VOLUNTARY & COMPULSORY ARBITRATION

Voluntarism in industrial relations has been indubitably accepted as the highest virtue in all industrial
relations systems - be they the Western collective bargaining models or the third-world state-regulation (or
compulsory adjudication) models of industrial relations. An essential corollary of the collective-bargaining
models of industrial relations is the freedom of disputant parties to association and to resort to strikes and
lockouts on the failure of voluntary mechanisms. The system of compulsory adjudication, however, puts
severe limitations on the resort to direct action. India has worked this system since even before
independence.3 Some social scientists have lauded the utility of this system as it, they argue, ensures
“fairness and impartiality” to disputant parties through Labour Courts and Tribunals.4

Critics of the state-regulation model have forcefully countered the above point of view; they have
expressed serious doubts on the potentiality of compulsory-adjudication law and instrumentalities in
equitable management of industrial conflict on grand scale.5 This system has also been charged of
debilitating the labour power6 and also of establishing capital’s hegemony7 in industrial relations.

Perhaps the most forceful argument advanced against the compulsory adjudication system is that it has
converted important socio-economic issues into legal questions, the full import of which the Tribunal
Presiding Officers (POs) cannot understand,8 and also that it has led to “juridification”9 of industrial relations.
Interestingly, the provision of voluntary arbitration in the Industrial Disputes Act, 1947 (IDA),10 was
expected to dilute the impact of the state-regulation syndrome and was also envisaged to become an adjunct
of collective bargaining. This method is suggested as an alternative mode of eschewing legalism produced by

1
This paper forms part of larger study entitled, Compulsory Adjudication in Industrial Relations. I am grateful to Vice-
Chancellor Upendra Baxi for his invaluable guidance and comments on this research.

2
Professor of Labour Law, Gandhi Labour Institute, Manav Mandir Road, Ahmedabad.
3
As is well-known, the genesis of the compulsory adjudication model of industrial relations (IR) in India is locatable in the Rule 81-A of the
Defence of India Rules 1942 framed during the Second World War. In fact, the Indian model of IR has remained virtually unchanged since the
promulgation of these rules-minor tinkerings, here and there, through amendments to the Industrial Disputes Act, 1947 (IDA), of course, have
been attempted by the Indian state.
4
See, for example, L.K. Deshpandey, “Economic Framework and Resolution of Industrial Conflict”, VI, Cochin University Law Review, 316 at
320 (1982); also see Tadashi Hanami,” The Settlement of Labour Disputes in Worldwide Perspective”, XXXII International Social Science
Journal 490 (1980).
5
See, for example, V.D. Kennedy, Unions Workers, Employers (Bombay: Asia, 1966); S.N. Dhyani, “Labour management Relations: Postures
and Purpose”, VI, Cochin University Law Review 337; O.P. Malhotra, The Law of Industrial Disputes Vols. I & II (Bombay, N.M. Tripathi,
1985); Debi S. Saini, A Social-legal Study of Compulsory Adjudication in Industrial Relations, Unpublished Ph. D. dissertation, University of
Delhi (Faculty of Law), Delhi, 1991.
6
See Debi S. Saini, “Collective labour Law Disputes and Labour Power in India: Legitimacy of a Colonial Model”, paper presented to the Joint
Meeting of Law and Society Association and Research Committee on the Sociology of Law of the International Sociological Association,
University of Amsterdam, The Netherlands (June 26-29, 1991).
7
See Sujata Patel, The Making of Industrial Relations- The Ahmedabad Textile Industry 1918-1939 (New Delhi: Oxford University Press, 1987).
8
Debi S. Saini, supra n. 3.
9
Debi S Saini, “Compulsory Adjudication of Industrial Dispute: Juridification of Industrial Relations”, 27, Indian Journal of Industrial
Relations, 1.
10
See. 10-A, The Industrial Disputes Act, 1947.

1
the working of the compulsory adjudication. The merits of this method have been recognised world over. But
a sine qua non of its success is that the law of industrial arbitration should be so structured as will facilitate the
realization of the potentiality of this method.

An important point in regard to voluntary arbitration is its relationship with collective bargaining - is it
expected to facilitate collective bargaining as in India or can it work only in a situation of a well—
developed collective-bargaining system? The Indian judiciary has recognised that it supplements collective
bargaining and can be helpful in providing “a new focus for pent-up animosities”.11 However, Western
scholars have doubted whether voluntary arbitration can strengthen unions so as to be facilitative to
collective bargaining. Thus, Getman argues:

“Collective bargaining shapes labour arbitration and gives it power.... it is only when unions are
powerful, well- established and responsive to the needs of their members that labour arbitration
works successfully.”12

How does one explain the contemporary Indian scene on voluntary arbitration in view of the
above formulation of Getman? This necessitates examining arbitration in its relationship with the
existence of the compulsory adjudication instrumentalities (Labour Courts, Tribunals etc.) and its
adjuncts (union leaders, labour lawyers, management consultants, labour bureaucrats etc.). It is
essential to explore this dynamics to explain why voluntary arbitration has failed in India. This
paper seeks to explore this relationship in the context of private-sector industrial relations in
India. It argues that the system does not work because of the general distrust created especially in
workmen by the compulsory adjudication method and also because of the management’s use of
legalistic-industrial-relations structures to its own advantage.

II. Methodology and Data Sources

The paper is based on the field work conducted at Faridabad, the 10th largest industrial belt in
India, located to the south of New Delhi in the state of Haryana. The fieldwork was conducted
over a period of 29 months - from September 1984 to February 1987 - with intermittant intervals.
The principal form of data collection was the reconstruction of 29 collective labour disputes in
the private sector, which were adjudicated by the Industrial Tribunal, Faridabad. Apart from
these 29 disputes, the conciliation proceedings of 4 collective-labour disputes were observed;
these too were reconstructed. Reconstruction of the disputes involved studying of the concerned
conciliation files, including their failure reports, and the tribunal files. The disputant parties were
then interviewed about their disputing experiences.

Over and above the reconstruction of 33 cases, data were collected by interviewing 76
professionals in Faridabad about their general disputing experiences. They consisted of :
management consultants (17), outside union leaders belonging to various union federations (32),
and practising labour lawyers (27). This category of respondents will be known as the general-
category respondents. Data were also gathered by discussions13 with the three Conciliation
Officers (CO) and the Deputy Labour Commissioners (DLC) of this industrial complex. Also,

11
Rohtak Delhi Transport Pvt. Ltd. v Risal Singh (1964) I LLJ 89 (Punjab).
12
J.G. Getman, “Labour Arbitration and Dispute Resolution”, 88 Yale Law Journal 916 at 917.
13
These officials did not like to give formal interviews; discussions were held with them on various aspects of industrial disputes resolution.

2
live adjudication proceedings were observed at the sole Industrial Tribunal of Haryana situated at
Faridabad.

II. Approaches to Industrial Disputes Arbitration

Technically, approaches to arbitration could be of two types ‘adjudicative’ or ‘administrative’.14

In adjudication, the adjudicator examines past facts in the context of vested rights and
obligations, and applies legal norms. In administration, his concern shifts to promoting
harmonious industrial relations in future. Thus, to further this end, arbitrators become
conciliators. Nevertheless, since they do make authoritative determinations, in the event of
impasse, they are not conciliators in the strict sense. But without sticking to the letter of the law
they may be guided by practical and realistic considerations. The latter approach is more likely to
be successfully adopted by an arbitrator than an adjudicator. Elaborating on the above aspect,
Con-cannon remarks:

“. . . as arbitrators are not constrained by any external criteria of relevance and as they
necessarily have a sensitivity to industrial relations understanding to be on the arbitral
penal, an arbitration case is relatively rich in the breadth and depth of the contextual
information available to it. It is in that way, a method of adjudication without legal
constraints, able to lift the veil of formality to see the reality of power relations and
collective bargaining dynamics.”15

The method of arbitration, thus, can produce authoritative decisions without colouring them with
legal rigidities. In that sense, it can work as a better method than adjudication. But all that will
depend upon the training and approach of the arbitrator and various other factors including the
legal structures evolved to promote this method. Particularly, if the arbitrator is an industrial-
relations expert, a problem solver, and not a trained lawyer - because then he will be influenced
by the past, searchings for reasons to defend the status quo - a greater usefulness can possibly be
derived from this method.

IV. The Failure of Arbitration

As we noted earlier, voluntary arbitration of industrial disputes has been provided for in the IDA.
This Act does give freedom of procedure and approach to the adjudicatory bodies envisaged in it
as well as to arbitrators appointed under this enactment. It is provided that they “shall follow
such procedure as the arbitrator or authority concerned may think fit”.16 It is a known fact,
however, that not only Labour Courts and Tribunals but also arbitrators in India have been
following formal procedures for performing their duties.17 Their approach is only of adjudication
and is nowhere close to administration as envisaged in the previous section.

In Faridabad, workmen either know nothing about arbitration or express contempt for it.
14
F. Schmidt, “Conciliation, Adjudication and Administration. : Three Methods of Decision Making in Labour Disputes”, in B. Aaron (ed.),
Disputes Settlement Procedures in Five Western European Countries 65 (Los Angeles University of California, 1969).
15
Harcourt Concannon, “Handling Dismissal Disputes by Arbitration”, 11 Industrial Relations Journal 13 at 21 (1981).
16
Supra n. 8 sec. 11(1).
17
See Debi S. Saini, supra n 3.

3
Scanning through the Government of Haryana Gazette related to the period of this study, it was
quite revealing to find that there was hardly any notification of appointment of an arbitrator or
publication of an arbitrator’s award. I tried to explore this state of affairs with the five classes of
respondents to know, what factors inhibit arbitration in collective disputes in Faridabad. The data
in this connection are presented in Tables 1 to 5.

Preparing a structured question for the purpose of these tables involved identification of six
possible factors, which included : (i) non-availability of suitable arbitrators; (ii) high cost of
arbitration; (iii) easy availability of adjudication; (iv) arbitration too is time consuming; (v)
arbitration too involves cumbersome process; and (vi) lack of knowledge of arbitration system
on the part of disputant parties. The respondents were asked to rank three factors, in their order
of importance, that hinder development of arbitration in industrial dispute resolution. After
tabulating the responses, a weighted value of 3, 2, and 1 was assigned to the first, second and
third priority respectively as given by the respondents. Then scores in respect of each of the six
factors were obtained, and ranking done. In this way rankings were obtained in all the five
classes of respondents : disputant parties involved in the sampled disputes i.e. managements
representatives and workmen’s/union representatives, and general-category interviewees i.e.
outside union leaders, management consultants, and professional labour lawyers. Then
percentage of scores, obtainable in respect of each of the listed factors, of all five classes of
respondents, were tabulated and totalled to know the composite ranking of the casual factors
perceived, and ranks were thus obtained. These ranks are shown in Table 6.

Table 1 shows the scores of management representatives in the disputant-parties category. The
three most important inhibiting factors of voluntary arbitrations perceived by them are : (i) non-
availability of suitable arbitrators, (ii) easy availability of adjudication, and (iii) lack of
knowledge of the arbitration system on the part of disputant parties, in that order. Likewise,
Table 2, which tabulates responses of workmen’s representatives in this very category, also tells
the same three factors, and in the same order.

Interestingly, even the outside union leaders in the general category, whose responses are
presented in Table 3, too identify the above-mentioned three factors that inhibit growth of
arbitration, and in the same order of importance. A slight variation, however, is noticeable in the
factors identified by management consultants in the general category. Table 4 shows that while
the first and the second most important factors, to them, are the same as observed by the earlier
classes of respondents, the third important factor, they feel, is ‘the same cumbersomeness of
arbitration process as that of adjudication’. These very factors, and in the same order of
importance, are also attributed by the general-category practising-lawyers, whose responses are
shown by Table 5.

After the scores of each class, as obtainable from Tables 1 to 5, were totalled and presented in
Table 6, the three most important factors obtainable are : (i) non-availability of suitable
arbitrators, (ii) easy availability of adjudication, and (iii) lack of knowledge of arbitration system
on the part of disputant parties. This table also clearly shows that the most serious problem of
voluntary arbitration perceived in Faridabad is of non-availability of suitable arbitrators. Most of
the workmen and outside leaders felt that an arbitrator can easily be bribed by the management to
obtain an award in its favour. The general opinion amongst workmen was that an arbitrator.

4
But, a more important question is what explains the total lack of faith in arbitration amongst
workmen? The key reason gathered is their experience, which they encountered when an attempt
was made in this area or were told about it by fellow workmen in other concerns, who had some
experience of it. Of course, these cases were not of arbitration proceedings under section 10A of
IDA, but were of informal arbitration independent of it. The informal arbitration was many times
sought by parties from people like the Deputy Labour Commissioner, wife of the state Labour
Minister, the Deputy Commissioner of the district, political leaders etc. They felt that a fair
decision was never given. Because of these experiences, the workmen have stopped even
thinking that such an alternative method of dispute resolution exists. Consequently, many
respondents - including managements’ representatives - remarked : “There is no custom of
arbitration in this area”; “People know very little about arbitration”, etc. But it was also noticed
that the outside union leaders themselves never think of promoting it, because that will
undermine their importance. A management consultant remarked : “Union leaders’ disinterest is
the key factor responsible for the unpopularity of the system”. In fact, an INTUC union leader18
indirectly admitted the leaders’ disinterest in this method.

The lack of popularity of arbitration is, however, intimately connected with the management’s
disinclination also. A

Table 1
Factors that Inhibit Parties to Prefer Voluntary Arbitration: Disputant Parties
(Management’s Representative)
______________________________________________________________________________
Inhibiting Factors Frequency of Priorities Total Score* Rank
First Second Third
Priority Priority Priority
________________________________________________________
1. Lack of suitable arbitrators 20 4 2 1
2. High cost of 0 0 0 0(0.0) -
arbitration
3. Easy Availability 1 15 11 44(28.2) 2
of adjudication
4. Arbitration too is 1 0 1 4(2.6) 5
time consuming
5. Arbitration too 0 1 5 7(4.5) 4
suffers from
cumbersome process
6. Lack of knowledge of 4 6 7 31(19.8) 3
the arbitration system on
part of disputant parties
_______________________________________________________________________
Total 26 26 26 156(100)
______________________________________________________________________________
* Total score has been arrived at after multiplying the weighted value of each priority by the number of respondents
assigning that priority to the concerned factor. The scores given to first, second and third priorities are three, two and one respectively. Ranks

18
One important impact of the present structure of the IDA is creation of a large number of professionals, including outsider union leaders, who
practice at conciliation, tribunal and labour court levels in return of fee. Surprising it may appear, but it is a fact that there are 11 independent
INTUC leaders in Faridabad who are doing this type of practice. Each has put a ‘Haryana INTUC Office’ sign-board on his office. Many of them
are not on talking terms because of Competition in soliciting customers.

5
were arrived at on the basis of total score. Percentage of each item to the total score is given in parentheses.
Source : Disputant—Parties Interviews — Management Representatives

6
 Table 2
Factors that Inhibit Parties to Prefer Voluntary Arbitration: Disputant Parties (Workmen’s
Representatives)
______________________________________________________________________________________
Inhibiting Frequency of Priorities Total Rank
Factors Score*
First Second Third
Priority Priority Priority
______________________________________________________________________________
1. Non-availability 26 4 3 89(44.9) 1
of suitable arbitrators
2. High cost of 0 0 1 1(0.5) 6
arbitration
3. Easy Availability 2 25 5 61(30.8) 2
of adjudication
4. Arbitration too is 1 1 6 13(6.6) 4,5
time consuming
5. Arbitration too 0 1 11 13(6.6) 4,5
suffers from
cumbersome process
6. Lack of knowledge of 4 1 7 21(10.6) 3
the arbitration system on
the part of disputant
parties
__________________________________________________________________________________________
Total 33 33 33 198(100)
__________________________________________________________________________________________
* Total score has been arrived at after multiplying the weighted value of each priority by the number of respondents
assignning that priority to the concerned factor. The scores given to first, second and third priorities are three, two
and one respectively. Ranks were arrived at on the basis of total score. Percentage of each item to the total score is
given in parentheses.
Source: Disputant—Parties’ Interviews — Workmen’s Representatives

7
 Table 3
Factors that Inhibit Parties to Prefer Voluntary Arbitration: Second Category Interviewees
(Union Leaders)
______________________________________________________________________________
________
Inhibiting Frequency of Priorities Total Rank
Factors Score*
First Second Third
Priority Priority Priority
_______________________________________________________________________________________
1. Non-availability 25 4 2 85(44.3) 1
of suitable arbitrators
2. High cost of - 2 1 5(2.6) 6
arbitration
3. Easy Availability 4 18 5 53(27.6) 2
of adjudication
4. Arbitration too is - 2 4 8(4.2) 5
time consuming
5. Arbitration too - 2 11 15(7.8) 4
suffers from
cumbersome process
6. Lack of knowledge of 3 4 9 26(13.3) 3
the arbitration system on
the part of disputant
parties
__________________________________________________________________________________________
Total 32 32 32 192(100)
__________________________________________________________________________________________
* Total score has been arrived at after multiplying the weighted value of each priority by the number of respondents
assigning that priority to the concerned factor. The scores given to first, second and third priorities are three, two and
one respectively. Ranks were arrived at on the basis of total score. Percentage of each item to the total score is given
in parentheses.
Source: General-Category Interviews — Union Leaders

8
 Table 4
Factors that Inhibit Parties to Prefer Voluntary Arbitration: Second-Category Interviewees
(Management Consultants)
______________________________________________________________________________________
Inhibiting Frequency of Priorities Total Rank
Factors Score*
First Second Third
Priority Priority Priority
_______________________________________________________________________________________
1. Non-availability 10 7 1 45(44.1) 1
of suitable arbitrators
2. High cost of - 1 - 2(2.0) 6
arbitration
3. Easy Availability 4 5 5 21(26.5) 2
of adjudication
4. Arbitration too is - 2 1 5(4.9) 5
time consuming
5. Arbitration too 2 1 7 15(14.7) 3
suffers from
cumbersome process
6. Lack of knowledge of 1 1 3 8(7.8) 4
the arbitration system on
the part of disputant
parties
__________________________________________________________________________________________
Total 17 17 17 102(100)
__________________________________________________________________________________________
* Total score has been arrived at after multiplying the weighted value of each priority by the number of respondents
assigning that priority to the concerned factor. The scores given to first, second and third priorities are three, two and
one respectively. Ranks were arrived at on the basis of total score. Percentage of each item to the total score is given
in parentheses.
Source: General-Category Interviews — Management Consultants

9
 Table 5
Factors that Inhibit Parties to Prefer Voluntary Arbitration: Second-Category Interviewees
(Practising Lawyers)
______________________________________________________________________________________
Inhibiting Frequency of Priorities Total Rank
Factors Score*
First Second Third
Priority Priority Priority
_______________________________________________________________________________________
1. Non-availability 19 3 2 89(44.9) 1
of suitable arbitrators
2. High cost of - 2 1 5(3.1) 6
arbitration
3. Easy Availability 3 11 5 36(22.2) 2
of adjudication
4. Arbitration too is 1 6 5 20(12.3) 4
time consuming
5. Arbitration too 3 2 11 24(14.8) 3
suffers from
cumbersome process
6. Lack of knowledge of 1 3 3 12(7.4) 5
the arbitration system on
the part of disputant
parties
__________________________________________________________________________________________
Total 27 27 27 162(100)
__________________________________________________________________________________________
* Total score has been arrived at after multiplying the weighted value of each priority by the number of respondents
assignning that priority to the concerned factor. The scores given to first, second and third priorities are three, two
and one respectively. Ranks were arrived at on the basis of total score. Percentage of each item to the total score is
given in parentheses.
Source: General-Category Interviews — Practising Lawyer

10
reputed labour lawyer of this region, who represents managements only, remarked : “The
procedure is the same, the time taken is the same; why should then the parties go for arbitration,
when adjudication by judges is available to them ?” And, when the management has to make a
choice between the two, a union leader pertinently remarked : “When Labour Court and Tribunals
serve management’s purpose of delaying the proceedings, why should it offer arbitration, which
may prove against this objective ?” Many management consultants and labour lawyers did in fact
admit that managements are never serious in finding arbitrators, as it comes in conflict with their
negative tactics ofexhausting workmen by delay at tribunals, leading to their submission into their
own rationality. Some respondents from both sides observed that it is difficult to find a man on
whom both can agree. A management consultant remarked : “I have never seen during my career
that such an impartial man is available”.

11
 Table 6
Ranking of Inhibiting Factors by Interviewees of all Five Categories*
______________________________________________________________________________________
Inhibiting Disputant Parties Disputant Parties General General General Total Rank
Factors parties parties category category category per-
(Management) (Union/Workers) (Union (Manag- (Lawyers) centage
Leaders) ement
Con-
sultants)
_______________________________________________________________________________________
1. Non-availability 44.9 44.9 44.3 44.1 40.1 218.3 1
of suitable
arbitrators
2. High cost of 0.0 0.1 2.6 2.0 3.1 7.8 6
arbitration
3. Easy Availability 28.2 30.1 27.6 26.5 22.2 134.6 2
of adjudication
4. Arbitration too is 2.6 6.6 4.2 4.9 12.3 30.6 5
time consuming
5. Arbitration too 4.5 6.6 7.8 14.7 14.8 48.4 4
suffers from
cumbersome process
6. Lack of knowledge of 19.8 10.6 13.5 7.8 7.4 59.1 3
the arbitration system on
the part of disputant
parties

* The table aims at standardising the priorities of all the intervieweres. Percentages obtained for each inhibiting
factor in all five categories i.e. disputant parties (management representatives), disputant parties (workman/union
representatives), general categories interviewees-union leaders, management consultants and lawyers- were added
and totals in respect of all the six factors ranked.
Source : Compiled from Tables 1 to 5

12
Another labour advocate, who represents only managements, succinctly listed three reasons for
the failure of arbitration method : “(i) Management can challenge, in appeal, the award of the Tribunal
comparatively easily than that of an arbitrator; (ii) Workmen do not agree because of total lack of faith;
and (iii) The law makes no binding force on parties to agree to arbitration”.

It is thus noticeable that the method of arbitration in industrial-disputes resolution cannot be studied in
isolation. Its working must be juxtaposed with that of the adjudicatory bodies envisaged under the Act,
because they are the alternative choices to parties, of course, through reference19 by the appropriate
Government. Workmen still carry a stereotype that a judge (meaning the Presiding Officer of a Tribunal)
can be honest compared to other decision-makers in the industrial relations system, though they prefer to
settle their disputes before reference even at management terms.20 Their experience of labour bureaucrats,
and politicians were traumatic or even horrendous.21 In facts, the compulsory adjudication system has
promoted a collusion between employers, state and outsider union leaders.22 And, the environment is
surcharged with total lack of trust and weak unions.

V. The Adjudication Syndrome and Obfuscation of Arbitration

It is noticeable from disputes reconstructions that the instrumentalities and adjuncts of adjudication have
deeply ingrained this system, in spite of workmen having experienced frustrations. Both disputants and
professionals have ceased to think of alternatives including arbitration.23 An interesting point emanated
from discussions with certain respondents about the appealability of an arbitrator’s award, when they
observed that there is no appeal against it at the High-Court or the Supreme-Court level. They were
unaware of the developments in the law of arbitration as per the decision of Gujarat Steel Tubes v. G.S.T.
Mazdoor Sabha24 in which the Supreme Court accepted that an arbitrator appointed under section
10A of the IDA is a ‘tribunal’ in the sense of Art. 136 of the Constitution of India, and hence
special leave to appeal can lie against his award.25 To know their knowledge of this provision,
this question was asked to all the general-category respondents. The responses to this are
tabulated in Table 7.

As is revealed by Table 7, only 10 out of 76 general-category respondents are conversant with

the correct legal position regarding appealability of an arbitrator’s award to the Supreme Court
under Article 136. It shows that 96.9 per cent outside trade union leaders, 82.4 per cent
management consultants, and 77.8 per cent professional lawyers are either unaware of the legal
position at all or hold the wrong view that an arbitrator’s award is not appealable. And, very
insignificant percentage of respondents in all the three classes are aware of the correct position.
This has serious implications on the fate of arbitration, particularly, in view of the fact that
flourishing ‘outside advisers’ industry’ in industrial relations has been institutionalized.
Surprisingly, many respondents, on their own, observed (before the above-mentioned question

19
Supra n. 8 sec. 10(1)
20
See Debi S. Saini, Ch. 5 supra n. 3.
21
This, however, does not mean that they had satisfactory experiences of tribunal adjudication. In fact, they experienced frustration even in
tribunal adjudication. See, ibid. ch. 7.
22
Ibid.
23
See Debi S. Saini supra n. 7
24
(1980) I LLJ 137 (SC)
25
Earlier in another case, Engineering Mazdaar Sabha v. Hind Cycle (1962) I LLJ 760 (SC), a tribunal appointed under section 10-A was not
treated as a tribunal for the purpose of special leave to appeal under Article 136 of the Constitution.

13
was put to them) that they could think of arbitration if its award had been appealable. This
included one of the leading management consultants, as well as many prominent trade-union
leaders of Faridabad.

The lack of knowledge of the correct legal position on the subject, in fact, explain three things : (i)
arbitration as a method of dispute resolution is unacceptable and unpopular in Faridabad; (ii) adjudication
would be preferred over arbitration and (iii) The outside professionals have no desire to promote arbitration
because that will come in their way of practising labour law. This also demonstrates the deep over-arching
shadow of adjudication on arbitration. Also, workmen have beliefs that, comparatively, adjudicators can be
more impartial in their judgments; and the managements believe in their policies of negating workmen’s
demands by exhausting them, through delays at adjudication, and not by what might possibly be a genuine
weighing of contentions of both sides through a more expeditious arbitrator. These conclusions also
support the disputant parties’ perceptions of suitability or arbitrators, in case they are asked to choose one.
This is discernible from Table 8.

As is revealed by Table 8, the majority of workmen (63.6 per cent) consider a retired judge as the
most suitable arbitrator to decide collective labour disputes, and some of them (18.2 per cent)
feel that Tribunal and Labour Court POs can be the most suitable for this purpose. Only one
workmen’s representative (3 per cent) considered labour-department official as a fit arbitrator.
Conversely, the majority of managements’ representatives (53.7 per cent) are inclined to accept
labour-department officials for this purpose. These diverse perceptions are also a manifestation
of lack of faith in the system, because mutually-acceptable arbitrators are not available.
Managements’ less faith in judges for this purpose also shows their disinclination to take on
workmen’s demands on merits when softer options are available to them. Their preference for
labour-department officials tends to corroborate the near unanimous view of the workmen that
Labour Department, in its own pecuniary interest, is completely biased towards managements. In
fact, disputes’ reconstructions and parties’ revelations also hint towards the veracity of these
possibilities.26

26
The reconstruction of the four conciliation cases revealed immense misuse of conciliation powers by the Conciliation Officers. See, Debi S.
Saini Ch. 5 supra n. 3.

14
 Table 7
Whether an Arbitrator’s Award is Appealable to the Supreme Court under Article 136 of the
Constitution :
General-Category Interviewees*

__________________________________________________________________________________________________
Do you think that an Arbitrator’s Union Management Labour
Award can be challenged before Leaders Consultants Lawyers
Supreme Court under Article 136 No. No. No.
Of the Constitution
____________________________________________________________________________________________
Yes 1 (3.1) 3 (17.6) 6 (22.2)
No 10 (31.3) 11 (64.8) 15 (55.6)
Can’t Say 21 (65.6) 3 (17.6) 6 (22.2)
____________________________________________________________________________________________
Total 32 (100) 17 (100) 27 (100)
____________________________________________________________________________________________
* Figures in parentheses denote percentages.
Source: General Category Interviews

Table 8
Who is the most Suitable Arbitrator: Disputant Parties*

________________________________________________________________________________________
Which of the following category of Union Management
Persons you are more likely to choose Representative Representative
for arbitration of collective disputes ? No. No.
________________________________________________________________________________________
1. PO of Industrial Tribunal /Labour Court 6 (18.2) 1 (3.8)
2. Retired Judge 21 (63.6) 8 (30.8)
3. Labour Lawyer 1 (3.0) 1 (3.8)
4. Political Leader 3 (9.2) 0 (0)
5. Higher Official of Labour Department 1 (3.0) 14 (53.9)
6. DC/SSP/Other Government Official 1 (3.0) 2 (7.7)
________________________________________________________________________________________
Total 33 (100) 26 (100)
________________________________________________________________________________________
* Figures in parentheses indicate percentage of each item.
Source: Disputant Parties’ Interviews.

VI. Conclusion

It is thus noticeable that the question of non-availability of suitable arbitrators is deeply

interwined with the availability of adjudication, and is not independent of it. The former factor is
in fact a corollary of the latter. Also, the third composite factor ranked by the respondents: lack
of knowledge of arbitration system on the part of disputant parties, is a by-product of the
working of the adjudication system. The state-managed conciliation and Tribunal adjudication
prove supportive to the line of action of managements - which includes delay as an essential part
of their strategy. The existence of the compulsory adjudication model thus is the most important
factor that stalls the emergence of arbitration. The system has proliferated self-styled union

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 leaders, who instead of devoting time to organise labour, indulge in practising labour law at
conciliation and tribunal levels. A good amount of touting is also done by them. Pursuing of self
interest by them leave unions weak, which proves antithetical to the development of voluntary
arbitration; Getman, thus rightly argues that arbitration can work only when unions are
powerful.27 Therefore, any labour-relations discourse which confines to locating more competent
arbitrators in the existing milieu, and without removing the fetters on collective bargaining, is
likely to be perfunctory.

27
Supra n. 10

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