# ASBESTOS CEMENT LTD v. P. D. SAWARKAR & ORS

- **Citation:** [1970] 3 S.C.R. 752
- **Court:** Supreme Court of India
- **Decided:** 1970-02-23
- **Bench:** J. M. Shelat, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/asbestos-cement-ltd-v-p-d-sawarkar-ors-4961
- **Pages:** 5

## Headnote

Cons1i1utio11 of India, Arts. 133(1) & 226-Final order-Jnterbn a1rard
./Jy arbitrators under Industrial Disputes Act, 1947 deciding one of sel'eral
issues-Other iss11es left to be decided later-Ati<•ard published in Gazette
under s. 17 of Act-Such award 1vhether an interlocutory
order-High
Court's decision dis111issi11g writ petition against
such cnt·ard M-'hether a
'final order'.
The 4th respondent \Vas a union of workmen in one of the factories
owned by the appellant company.
By an agreement between the 4th respondent and the company a charte·r of workmen··s demands was referred to
adjudication by arbitrators under s. JOA of the Industrial
Disputes Act,
1947. The arbitrators dec_ided first the dispute relating to dearness allowance, leaving other disputes to be considered later. This Part I award \\-·as
published in the Government Gazette under s. 17 of the Act. Aggrieved
by the said award the company filed a writ petition under Art. 226 <ii the
Constitution. The petition was dismissed by the High Court.
The company applied to the High Court for leave to appeal to this Court. This
was refused on the ground that the arbitration was
not completed and
therefore neither the award in question nor the High Court's order dismissing the writ petition was a fin'al order within the meaning of Art. 1~3(1)
of the Constitution. Against the High Court's
ord~r refusing lea\'<. the
company, by specinl leave, app1ied to this Court.
HELD: (i) Under sub-s. 4 of s. 10-A, the arbitrators submitteJ the
Part I Award duly signed by all of them to the Government.
As required bys. 17(1), the said Part 1 Award was published in the manner prescribed therefor by the State Government and thereupon under s. 17 (;) it
became final nod could not be called
in question in
any court in J.ny
manner whatsoever.
Under s. 17A(l) the award became en'forceable on
the expiry of 30 days from the date of its publication. Therefore so tar
as the question of dearness allowance among other disputes, was concerned, Part I Award became final and binding on the parties.
It was not an
interlocutory order in the se.nse of any dispute in respect of its subjectmatter remaining to be finally adjudicated by the arbitrators or the rights of
the parties in relation thereto remaining pending any further determination.
[755 B-El
(ii) The petition filed by the appeUant-company for a v;rit of certiorari
and for quashing the said Part I Award under Art. ~26 \\-'as a proceeding
independent of the dispute between the parties.
Such a \vrit proceeding
\Vas not an interlocutory proceeding nor the order dismissing it an interlocutory order leaving any question raised in the writ petition to be detcrn1ined at any later stage. The effect of the dismissal of the \\1rit petition
by the High Court was that the said Part I Award, suhjcct to any appeal
to this Court. was not liable to be questioned on the ground:; aJlegcd in
that writ petition and the appellant-company woulJ he hound l"O pay to
its \\'~1rkn1cn dearness allowance at the rates provided in that award. The
controversy between the parties on questions raised in the \\'rit petition
\VI.ls finallv detern1ine<l and brought to an end as a re.;;ult of the ord_er
.dismissal. In vie\v of the decision of this Coutt in Ranteslr "· Seth Gend~;/al
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ASBESTOS CEMENT V. P. D. SAWARKAR (Shelat, /.)
753
the High Court must be said to be in error i~ holding that its. order dismissing the writ petition was not a fin·aI order w1th1n t~e m~an1ng of ~t.
133(1) and that no appeal, therefore, lay therefrom tn thIS Court. [755
F-G; 766 B·C]
Ramesh v. Seth Gendalal, [1966] 3 S.C.R. 198, applied.
Mohan/al Magan/al Thacker v. State of Gujarat, [1968] 2 S.C.R. 685,
referred to.
CIVIL APPELLATE JUR1so1cnoN : Civil Appeal No. 2448 of
1969.
Appeal by special leave from the order dated Nov~~ber 2~,
1968 of the Bombay High Court in Supreme Court Civil Apphcation No. 2687 of 1968.
V. M. Tarkunde, P. N_. Tiwari, anci O. C. Mathur, for the
appe

## Text

752
ASBESTOS CEMENT LTD.
v.
P. D. SAWARKAR & ORS.
February 23, 1970
[J. M. SHELAT AND G. K. MITTER, JJ.)
Cons1i1utio11 of India, Arts. 133(1) & 226-Final order-Jnterbn a1rard
./Jy arbitrators under Industrial Disputes Act, 1947 deciding one of sel'eral
issues-Other iss11es left to be decided later-Ati<•ard published in Gazette
under s. 17 of Act-Such award 1vhether an interlocutory
order-High
Court's decision dis111issi11g writ petition against
such cnt·ard M-'hether a
'final order'.
The 4th respondent \Vas a union of workmen in one of the factories
owned by the appellant company.
By an agreement between the 4th respondent and the company a charte·r of workmen··s demands was referred to
adjudication by arbitrators under s. JOA of the Industrial
Disputes Act,
1947. The arbitrators dec_ided first the dispute relating to dearness allowance, leaving other disputes to be considered later. This Part I award \\-·as
published in the Government Gazette under s. 17 of the Act. Aggrieved
by the said award the company filed a writ petition under Art. 226 <ii the
Constitution. The petition was dismissed by the High Court.
The company applied to the High Court for leave to appeal to this Court. This
was refused on the ground that the arbitration was
not completed and
therefore neither the award in question nor the High Court's order dismissing the writ petition was a fin'al order within the meaning of Art. 1~3(1)
of the Constitution. Against the High Court's
ord~r refusing lea\'<. the
company, by specinl leave, app1ied to this Court.
HELD: (i) Under sub-s. 4 of s. 10-A, the arbitrators submitteJ the
Part I Award duly signed by all of them to the Government.
As required bys. 17(1), the said Part 1 Award was published in the manner prescribed therefor by the State Government and thereupon under s. 17 (;) it
became final nod could not be called
in question in
any court in J.ny
manner whatsoever.
Under s. 17A(l) the award became en'forceable on
the expiry of 30 days from the date of its publication. Therefore so tar
as the question of dearness allowance among other disputes, was concerned, Part I Award became final and binding on the parties.
It was not an
interlocutory order in the se.nse of any dispute in respect of its subjectmatter remaining to be finally adjudicated by the arbitrators or the rights of
the parties in relation thereto remaining pending any further determination.
[755 B-El
(ii) The petition filed by the appeUant-company for a v;rit of certiorari
and for quashing the said Part I Award under Art. ~26 \\-'as a proceeding
independent of the dispute between the parties.
Such a \vrit proceeding
\Vas not an interlocutory proceeding nor the order dismissing it an interlocutory order leaving any question raised in the writ petition to be detcrn1ined at any later stage. The effect of the dismissal of the \\1rit petition
by the High Court was that the said Part I Award, suhjcct to any appeal
to this Court. was not liable to be questioned on the ground:; aJlegcd in
that writ petition and the appellant-company woulJ he hound l"O pay to
its \\'~1rkn1cn dearness allowance at the rates provided in that award. The
controversy between the parties on questions raised in the \\'rit petition
\VI.ls finallv detern1ine<l and brought to an end as a re.;;ult of the ord_er
.dismissal. In vie\v of the decision of this Coutt in Ranteslr "· Seth Gend~;/al
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ASBESTOS CEMENT V. P. D. SAWARKAR (Shelat, /.)
753
the High Court must be said to be in error i~ holding that its. order dismissing the writ petition was not a fin·aI order w1th1n t~e m~an1ng of ~t.
133(1) and that no appeal, therefore, lay therefrom tn thIS Court. [755
F-G; 766 B·C]
Ramesh v. Seth Gendalal, [1966] 3 S.C.R. 198, applied.
Mohan/al Magan/al Thacker v. State of Gujarat, [1968] 2 S.C.R. 685,
referred to.
CIVIL APPELLATE JUR1so1cnoN : Civil Appeal No. 2448 of
1969.
Appeal by special leave from the order dated Nov~~ber 2~,
1968 of the Bombay High Court in Supreme Court Civil Apphcation No. 2687 of 1968.
V. M. Tarkunde, P. N_. Tiwari, anci O. C. Mathur, for the
appellant.
'
B. Sen and S. K. Dholakia, for respondent No. 4.
The Judgment of the Court was delivered by
. Shelat, J.
This appeal, by special leave, raises the question as
to whether an order dismissing a writ petition challenging the validity of an industrial award, which disposes of one of the items of a
charter of demands by workmen but Jeaves the rest of the demands
to be adjudicated by a subsequent award, is a final order iin . a
civil proceeding of a High Court within the meaning o.f Art. 133 (1)
of the Constitution.
The following are the relevant facts :
The appellant-company conducts factories at Mulund in
Greater Bombay, Kymore, Calcutta and Podanur. The present
dispute relates to the factory at Mulund where the company employs more than 1700 workmen and has its Head Office also. On
September 21, 1962 the 4th respondent union on behalf of the
workmen of the Mulund factory submitted a charter of demands
consisting of 20 items including the demand for increased dearness allowance.
By an agreement dated November 26, 1964
b~tween the appellant-company and the 4th respondent union made
under s.
l 0-A of the Industrial Disputes Act, 1947, the said demands were referred for adjudication to a board of arbitrators
consisting of respondents 1 to 3. A notification dated December
5, 1964 referring the said disputes to respondents .1 to 3 was
issued by the Maharashtra Government and published in the
Government Gazette.
Demand No. 1-A in the said charter of
demands related to dearness allowance to be paid to both monthly
and daily rated workmen at the rates threin sef out.
The arbitrators decided to hear and dispose of, first, the dispute as to
dearness 'allow:mce and then to deal with the rest · of the
754
SUPREME COURT REPORTS
[1970] 3 S.C.R.
disputes relating t? other demands.
Accordingly, the parties
w~re heard and ultimately the arbitrators gave their award which
they called Part I Award dated March 27, 1965. The said award
was a majority decision in the sense that one of the arbitrators
dissented from the opinion of the other two.
So far as the present appeal is concerned, it is not necessary to set out the contents
of the award.
The said Part I award was thereafter published
in the Government GazeHe dated April 15, 1965 and became enforceable under s. 17-A of the Act on the expiry of 30 days from
the date of its publication. If the Appellant-company were to be
right, the said award imposed a burden of about Rs. 40 lacs by
way of arrears, the award having beeui made retrospective in operation, and Rs. 5 .5 8 lacs as and by way of recurring liability every
year.
•
Aggrieved by ·the said award the appellant-company filed a
writ petition under Art. 226 of the Constitution being Special
Civil Application No. 824 of 1965 in the High Court of Bombay
for quashing the said award on diverse grounds.
The writ petition came up for hearing before a Division Bench and was dismissed on merits by an order dated April 10, 1968. The appellant-company thereupon filed an application being Supreme
Court Civil Application No. 2687 of 1968 for leave to appeal
to this Court.
That application was rejected by an order dated
November 25, 1968 which stated:
"No application lies under article 226 of the .Constitution as there is further arbitration."
It appears that the words "Art. 226" were mentioned in the said
order through inadvertence.
What was meant was that as the
arbitration proceedings were still pending and the board of arbitrators had yet to adjudicate on the rest of the reference, the
disputes between the parties could not be said to have been finally
disposed of, and that therefore, the said Part I award was an
interlocutory order.· Consequently, neither that award nor the
order dismissing the writ petition against that award was a final
order within the meaning of Art. 133(1).
This appeal challenges
the correctness of this order.
The only questic.n arising in this appeal, is whether the High
Court's order dated November 25, 1968 dismissing the writ petition is a final order within the meaning of Art. 133(1).
There is
no dispute that the question of dearness allowance along with
several other questions was, by agreement between the .Parties,
referred to the arbitration of respondents 1 to 3 as provided by.
s. 10-A of the Act and that a copy thereof was publishea in the
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ASBESTOS CEMENT v. P. D. SAWARKAR (Shelat, J.)
755
Government Gazette as required by sub-s. 3 of that section.
There·
is similarly no dispute that the arbitrators, instead of detefllllining all the disputes at one ti.me, first· took up the question of
dearness allowance, deciding to take up the rest of the dispu:es
at a subsequent stage and gave their award calling it Part I
Award.
Under sub-s. 4 of s. 10-A, the arbitrators submitted
the said Part r Award duly signed by all of them to the Government. As required by s. 17(1), the said Part I Award was
published in the manner prescribed therefor by the State Government and thereupon under s. 17(2) it became final and could
not be called in question by any court in any manner whatsoever.
Under s. 17 A(l), the award became enforceable on the expiry
of 30 days from the dafe of its publication under s. 17-in the
present case, as from May 15, 1965. Therefore, so far as the
question of dearness allowance, among other disputes, was concerned, Part I Award became final and binding on the parties
and nothing further remained to be done or determined in respect of the controversy between the parties en the question of
dearness allowance.
The award, therefore, was not an interlocutory order in the sense of any dispute in respect of its subjectmatter remaining to be finally adjudicated by the arbitrators or
the rights of the parties in relati.on thereto remaining pending
any further determination;
In this sense there can be no doubt
that so far as the dispute as to dearness allowance was concerned,
the arbitrators by the said Part I Award finally adjudicated it
and gave their decision leaving nothing to be adjudicated or
decided upon at any subsequent stage of the arbitration.
Quite apart from this consideration, the petition filed by
the appellant-company for a writ of certiorari and for quashing
the said Part I Award under Art. 226 was a proceeding independent on the dispute between the parties.
Such a writ proceeding was not an interlocutory proceeding nor was the
order dismissing it an interlocutory order leaving any question
raised in the writ petition to be determined at any later stage.
Once the High Court dismissed the writ petition, the controversy
between the parties raised therein was finally determined and
therefore came to an end. In Ramesh v. Seth Gendalal(') a
similar question arose for consideration and this Court held that
a writ petition under Art. 226 is a civil proceeding of a High
Court, that such a proceeding is quite independent of the original
controversy between the parties and that a decision in exercise
of jurisdiction under. that article, whether interfering with the
proceedings impugned or declining to do so, is a final decision
in so far as the High Court is concerned, if the effect is to terminate the controversy before it and the order must in that case be-
(t) [1966/ 3 S.C.R. 198.
756
SUPREME COURT REPORTS
[1970] 3 S.c.Il.
regarded as final for the purpose of an appeal to the Supreme
Court.
(See also Mohan/al Magan/a/ Thacker v. State of Guja·
rat(').
It is clear that the effect of the dismissal of the writ petition
by the. High. Court was that the said Part I Awilrd, subject to
any appeal to this Court, was not liable to be q~oned on the
_grounds alleged in that writ petition and the appellant-company
would be bound to pay to its workmen dearness allowance at the
rates provided in that awilrd.
The controversy between the par·
ties on questions raised in the writ petition was finally determined
and brought to an end as a result of the order of dismissal. In
view of the decision in Ramesh v. Seth Gendalal(') the High
Court must be said to be in error in holding that its order dismissing the writ petition was not a final ·order within the meaning
of Art. 133(1) and that no appeal, therefore, lay therefrom to this
Court.
The appeal succeeds. The High Court's order dated November 25, 1968 is set aside and the case is sent back to the High
Court for disposal in accordance with law.
In the circumstances
of the case there will be no order as to costs.
The Special Leave
Petition No. 148 of 1969 filed against the High Court's judgment
and order dated April 10, 1968 dismissing the said writ petition
is allowed to be withdrawn. Stay granted by this Court will continue for ten days from today.
-G.C.
Appeal allowed.
(I) [1968] ~- S.C.R. 685.
(~) [1966] .1 S.C.R. l9g.
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