Case ID: 3398

Judgment:
Civil Appeals Nos. 1721 1728 of 1969. Appeals by Special Leave from the Judgment and order dated the 2nd May 1962 of the Patna High Court of Judicature at Patna	 in M.J.C. Nos. 475 and 498 of 1959. A. B. N. Sinha	 B. P. Maheshwari and Suresh Sethi for the Appellants (in both the appeals). B. C. Ghose	 section section Jauhar	 D. N. Pandey	 A. Sinha and D. P. Mukherjee for Respondent 1 (In C.A. 1727) and Respondents 1 3 (In CA 1728). D. P. Singh	 section C. Agarwal and V. J. Francis for respondents 7 and 8 (In CA 1727 and Respondent 4 in (1728/69). The Judgment of the Court was delivered by KRISHNA IYER	 J. We permit ourselves a few preliminary observations disturbingly induced by the not altogether untypical circumstances of these two appeals	 before proceeding to state the facts	 set out the submissions and decide the points. Industrial law in India has not fully lived up to the current challenges of industrial life	 both in the substantive norms or regulations binding the three parties the States	 Management and Labour and in the processual system which has baulked	 by dawdling dysfunction	 early finality and prompt remedy in a sensitive area where quick solution is of the very essence of real justice. The legislative and judicial processes have promises to keep if positive industrial peace	 in tune with distributive economic justice and continuity of active production	 were to be accomplished. The architects of these processes will	 we hopefully expect	 fabricate creative changes in the system	 normative and adjectival. The two appeals before us	 passported by special leave under article 136	 relate to an industrial dispute with its roots in 1948	 meandering along truce union rivalry and the like	 into strikes and settlements	 the last of which led to an arbitration award in 1959 which	 in turn	 prompted two writ petitions before the High Court. After a spell of a few years they ripened into a judgment. Appeals to this Court followed and	 after long gestation of six years for preparation of papers and a 15 like period the cases are ready for final hearing or parturition	 in all 12 years after the grant of leave. By this cumulative lapse of time the generation of workers who struck work two decades ago have themselves all but retired	 the representative Union itself which sponsored the dispute has	 the other side faintly states	 ceased to command representative character	 the Managements themselves have	 out of many motives	 disclaimed the intention to recover the huge sums awarded to them by the arbitrators and the only survival after death	 as it were	 is a die hard litigation tied up to a few near academic	 but important	 legal points for adjudication by the highest Bench! On this elegiac note we will enter the relevant area of facts and law since we must decide cases brought before us	 however stale the lis. At this stage we may mention our strong feeling that where the superior courts	 after hearing full arguments	 are clearly inclined to	 affirm the judgment under appeal for substantially similar reasons as have weighed with the lower Court	 there is no need to give lengthy reasons for dismissing the appeal. Brevity	 except in special cases	 may well fill the bill where the fate is dismissal. On this score we are disposed to make short shrift of the appeals with stating but the necessary facts and focusing on the larger legal facets. Nevertheless	 the significance and plurality of the points pressed have defeated condensation. D The facts Two connected managements of industries in the same locality	 who figure as appellants before us	 had a running industrial dispute with their workers	 which has had a long history moving in a zigzag course and sicklied over by alleged internecine trade union strife. There were two trade unions which were perhaps of competitive strength and enjoying recognition. One of them	 the Rohtas Industries Mazdoor Sangh (for short	 the Mazdoor Sangh) was the representative union during the relevant period while the other	 the Rohtas Industries Seva Sangh (for brevity	 the Seva Sangh) is not a party before this Court and so we are not concerned with it except for the purpose of noticing its presence in the settlement of the dispute which starts the story so far as the litigation is concerned. There was a strike in the Industry (for our purposes this expression embraces both the appellants) which came to an end by virtue of a memorandum of agreement dated October 2	 1957	 to which not merely the management but also the two registered unions aforementioned and the two unregistered unions which had a lesser following	 were party. The terms of the said agreement provided inter alia that : "The employees ' claim for wages and salaries for the period of strike and the company 's claim for compensation for losses due to strike shall be submitted for arbitration of Sri J. N. Majumdar and Sri R. C. Mitter	 ex High Court Judges and Ex Members of the Labour Appellate Tribunal of India as joint arbitrators and their decisions on the two questions shall be final and binding on all the parties." (Clause 7 of agreement) 16 This agreement was admittedly arrived at during conciliation proceedings contemplated by the (for short	 the Act) and the reference to arbitration spelt out in clause 7 directly and. admittedly fell under section 10A of the Act. It is apparent that the arbitrators were seized of two questions: (a) the claim of the workers for wages for the period of strike; and (b) the claim of the management for compensation for its losses flowing from the strike. The Board of arbitrators	 two retired Judges of the Calcutta High Court held extensive hearings spread over a year and a half	 made a lengthy award marshalling the evidence	 adducing the reasons	 discussing the law and recording its decision on the two vital issues. At the end of the detailed and reasoned record of conclusions	 the award runs thus : "Our award accordingly is: (1) That the workmen participating in the strike are not entitled to wages and salaries for the period of the strike. (2) That the company do recover from the workmen participating in the strike	 compensation assessed at Rs. 80	000(rupees eighty thousand). (3) That the workmen jointly and severally do pay to the company one eighth of the total costs of the arbitration. In default of payment the company will be at liberty to recover the same in such manner as it thinks fit. Subject to this the parties do bear their respective costs. " The workmen were deprived of their wages during the period of the. strike on the score that it was an illegal strike. Both sides seem to have accepted this finding after an unsuccessful challenge in the High Court and happily industrial peace is said to be prevailing currently. What did hurt the Mazdoor Sangh more and what the management did try to have and to hold as a bonanza was the second finding that the strikers	 apart. from forfeiting wages	 do pay compensation in the huge sum of Rs. 6	90	000/ in one case and Rs. 80	000/ in the other	 for the loss of profits suffered by the manufacturing business of the management	 a pronouncement unusual even according to counsel for the appellant	 although sustainable in law	 according to him. For the workers this unique direction of industrial law is fraught with ominous consternation and dangerous detriment. The Mazdoor Sangh challenged the award as illegal and void by filing two writ petitions but the High Court quashed that part of the award which directed payment of compensation by the workers to the management and	 as earlier pointed out	 both sides have chosen to abide by the award in relation to the denial of wages during the strike period. The Main Points Urged The short but important issue	 which has projected some serious questions of law	 is as to whether the impugned part of the award has; been rightly voided by the High Court. We may as well formulate 17 them but highlight the only major submission that merits close examination	 dealing with the rest with terse sufficiency. In logical order	 counsel for the appellant urged that (1) (a) an award under section 10A of the Act savours of a private arbitration and is not amenable to correction under article 226 of the Constitution. (b) Even if there be jurisdiction	 a discretionary desistance from its exercise is wise	 proper and in consonance with the canons of restraint this Court has set down. (2) The award of compensation by the arbitrators suffers from no vice which can be regarded as a recognised ground for the High Court 's interference. (3) The view of law taken by the High Court on (1) the supposed flaw in the award based on 'mixed motives ' for the offending strike; (ii) the exclusion of remedies other than under section 26 of the Act; and (iii) the implied immunity from all legal proceedings against strikers allegedly arising from section 18 of the is wrong. A few other incidental arguments have cropped up but the core contentions are what we have itemised above. (1) (a) & (b) The expansive and extraordinary power of the High Courts under article 226 as wide as the amplitude of the language used indicates and so can affect any person even a private individual and be available for any (other) purpose even one for which another remedy may exist. f The amendment to article 226 in 1963 inserting article 226(1A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to 'the residence of such person '. But it is one thing to affirm the jurisdiction	 another to authorise its free exercise like a bull in a China shop. This Court has spelt out wise and clear restraints on the use of this extra ordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect	 the writ power has	 by and large	 been the people 's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights. We hold that the award here is not beyond the legal reach of article 226	 although this power must be kept in severely judicious leash. Many rulings of the High Courts	 pro and con	 were cited before us to show that an award under section 10A of the Act is insulated from interference under article 226 but we respectfully agree with the observations of Gajendragadkar J.	 (as he then was) in Engineering Mazdoor Sabha vs Hind Cycles Ltd(1) which nail the argument against the existence of jurisdiction. The learned Judge clarified at p. 640: "Article 226 under which a writ of certiorari can be issued in an appropriate case	 is	 in a sense	 wider than article 136	 because the power conferred on the High Courts to issue certain writs is not conditioned or limited by the requirement that the said writs can be issued only against the orders of Courts or Tribunals. Under article 226(1)	 an appropriate writ can (1) [1963] Supp. I S.C.R. 625. 18 be issued to any person or authority	 including in appropriate cases any Government	 within the territories prescribed. Therefore even if the arbitrator appointed under section 10A is not a Tribunal under article 136 in a proper cases	 a writ may lie against his award under article 226". (p. 640) We agree that the position of an arbitrator under section 10A of the Act (as it then stood) vis a vis article 227 might have been different. Today	 however	 such an arbitrator has power to bind even those who are not parties to the reference or agreement and the whole exercise under section 10A as well as the source of the force of the award on publication derive from the statute. It is legitimate to regard such an arbitrator now as part of the methodology of the sovereign 's dispensation of justice	 thus falling within the rainbow of statutory tribunals amenable to judicial review. i This observation made en passant by us is induced by the discussion at the bar and turns on the amendments to section 10A and cognate provisions like section 23	 by Act XXXVI of 1964. Should the Court invoke this high prerogative under article 226 in the present case ? That depends. We will examine the grounds on which the High Court has	 in the present case	 excised a portion of the award as illegal	 keeping in mind the settled rules governing judicial review of private arbitrator 's awards. Suffice it to say	 an award under section 10A is not only not invulnerable but more sensitively susceptible to the writ lancet being a quasi statutory body 's decision. Admittedly	 such an award can be upset if an apparent error of law stains its face. The distinction	 in this area	 between a private award and one under section 10A is fine	 but real. However it makes slight practical difference in the present case; in other cases it may. The further grounds for invalidating an award need not be considered as enough unto the day is the evil thereof. (2) Thus	 we arrive at a consideration of the appellants second submission	 perhaps the most significant in the case	 that the High Court had no legitimate justification to jettison the compensation portion of the award. Even here	 we may state that counsel for the appellants	 right at the outset	 mollified possible judicial apprehensions springing from striking workers being held liable for loss of management 's profits during the strike period by the assurance that his clients were inclined to abandon realisation of the entire compensation	 even if this Court up held that part of the award in reversal of the judgment of the High Court a generous realism. He fought a battle for principle	 not pecunia. We record this welcome fact and proceed on that footing. The relevant law which is beyond controversy now has been clearly stated in Halsbury 's Laws of England thus : "Error of law on the face of award: An arbitrator 's award may be set aside for error of law appearing on the face of it	 though the jurisdiction is not lightly to be exercised. The jurisdiction is one that exists at common law independently of statute. In order to be a ground for setting aside the award	 an error in law on the face of the award must be such that there can be found in the award	 or in a document actually 19 incorporated with it	 some legal proposition which is the basis of the award and which is erroneous. . where the question referred for arbitration is a question of construction	 which is	 generally speaking	 a question of law	 the arbitrator 's decision cannot be set aside only be cause the court would itself have come to a different conclusion; but if it appears on the face of the award that the arbitrator has proceeded illegally	 as for instance	 by deciding on evidence which was not admissible	 or on principles of construction which the law do s not countenance	 there is error in law which may be ground for setting aside the award. (para 623	 p. 334	 Vol. 2	 Fourth Edn) We adopt this as sound statement of the law. Not that English law binds us but that the jurisprudence of judicial review in this branch is substantially common for Indian and Anglo American systems and so Halsbury has considerable persuasive value. The wider emergence of common canons of judicial review is a welcome trend towards a one world public law. Indeed	 this Court has relied on the leading English decisions in several cases. We may content ourselves with adverting to Bungo Steel Furniture(1) and to the unreported decision Babu Ram(2). In simple terms	 the Court has to ask itself whether the arbitrator has not tied himself down to an obviously unsound legal proposition in reaching his verdict as appears from the face of the award. Bhargava J.	 speaking for the majority	 in Bungo Steel(1) stated the law: "It is now a well settled principle that if an arbitrator	 in deciding a dispute before him	 does not record his reasons and does not indicate the principles of law on which he has proceeded	 the award is not on that account vitiated. It is only when the arbitrator proceeds to give his reasons or to lay down principles on which he has arrived at his decisions that the Court is competent to examine whether he has proceeded contrary to law and is entitled to interfere if such error in law is apparent on the face of the award itself." (p. 640 641) In Bharat Barrel & Drum Manufacturing Co. (8) dealing with a private award and the conditions necessary for exercise of writ jurisdiction to correct an error of law apparent on the record	 did not lay down the law differently from what we have delineated. In one of the leading English cases Champsey Bhara & Co. (4) followed in India	 Lord Dunedin defined 'error of law on the face of the award ' as 'where the question of law necessarily arises on the face of the award or upon some paper accompanying and forming part of the award ' and said that then only the error of law therein would warrant judicial correction. The Law Lord expressed himself lucently when he stated: "An error in law on the face of the award means	 in their Lordships ' view	 that you can find in the award . some legal (1) [1967] 1 S.C.R.633. (2) C.A.107 of 1966 decided on 5 12 68. (3) ; (4) 50 I.A. 324. 20 proposition which is the basis of the award and which you can	 then say is erroneous." Williams J.	 in the case of Hodkinson vs Verne(1) hit the nail on the head by using the telling test as firmly established	 viz.	 'where the question of law necessarily arises on the face of the award '. In this view the enquiry by the Court before venturing to interfere is to ascertain whether an erroneous legal proposition is the basis of the award. Nay	 still less. Does a question of law (not even a proposition of law) necessarily arise on the award followed by a flawsome finding explicit or visibly implicit? Then the Court can correct. Tucker J.	 in James Clark (2) formulates the law to mean that if the award were founded on a finding which admits of only one proposition of law as its foundation and that law is erroneous on its face	 the Court has the power and	 therefore	 the duty to set right. While the Judge cannot explore	 by changing subterranean routes or ferret out by delving deep what lies buried in the unspoken cerebration of the arbitrator and ` interfere with the award on the discovery of an error of law by such adventure	 it is within his purview to look closely at the face of the award to discern the law on which the arbitrator has acted if it is transparent	 even translucent but lingering between the lines or merely wearing a verbal veil. If by such an intelligent inspection of the mien of the award which is an index of the mind of the author an error of law forming the basis of the verdict is directly disclosed	 the decision is liable to judicial demolition. In James Clark (2)	 the issue was posed with considerable clarity and nicety. If	 at its face value	 the award appears to be based on an erroneous finding of law alone	 it must fail. The clincher is that the factual conclusion involving a legal question must necessarily be wrong in point of law. Even though the award contains no statement of the legal proposition	 if the facts found raise 'a clear point of law which is erroneous on the face of it '	 the Court may rightly hold that an error of law on the face of the award exists and invalidates. Let us put the proposition more expressively and explicitly. What is important is a question of law arising on the face of the facts found and 'F its resolution ex facie of sub silentio. The arbitrator may not state the law as such. Even then such cute silence confers no greater or subtler immunity on the award than plain speech. The need for a speaking order	 where considerable numbers are affected in their substantial r t rights	 may well be a facet of natural justice or fair procedure	 although	 in this case	 we do not have to go so far. If	 as here	 you find an erroneous law as the necessary buckle between the facts found and the conclusions recorded	 the award bears its condemnation on its bosom. Not a reference in a narrative but a clear legal nexus between the facts and the finding. The law sets no premium on juggling with drafting the award or hiding the legal error by blanking out. The inscrutable face of the sphinx has no better title to invulnerability than a speaking face which is a candid index of the mind. We may	 by way aside	 express hopefully the view that a minimal judicialisation by statement	 laconic or lengthy	 of the essential law that guides the decision	 is not only reasonable and desirable but has	 over the ages	 been observed by arbitrators and quasi judicial tribunals as a norm of processual justice. We (1) ; 	 (2) [1944]1 K.B. 566. 21 do not dilate on this part of the argument as we are satisfied that be the test the deeply embedded rules to issue certiorari or the traditional grounds to set aside an arbitration award 'thin partition do their bounds divide ' on the facts and circumstances of the present case. The decisive question now comes to the fore. Did the arbitrators commit an error of law on the face of the award in the expanded sense we have explained ? The basic facts found by the arbitrators are beyond dispute and admit of a brief statement. We summarise the fact situation succinctly and fairly when we state that according to the arbitrators	 the strike in question was in violation of section 24 of the Act and therefore illegal. This illegal strike animated by inter union power struggle	 inflicted losses on the management by forced closure. The loss flowing from the strike was liable to be recompensed by award of damages. In this 2chain of reasoning is necessarily involved the question of law as to whether an illegal strike causing loss of profit is a delict justifying award of damages. The arbitrators held	 yes. We hold this to be an unhappy error of law loudly obtrusive on the face of the award. We may as well set out	 for the sake of assurance	 the simple steps in the logic of the arbitrators best expressed in their own words which we excerpt: "(a) It is argued that strike is a legitimate weapon in the hands of workmen for redressal of their grievances and if they are made liable for loss on account of strike then the basic idea of strike as a means for having the grievances redressed will be taken away. The fallacy in this argument is that it presupposes the strike not to be illegal and unjustified. In the pre sent case we found the strike to be otherwise. The workmen have got no right of getting their grievances redressed by resorting to illegal means which is an offence. (b) It has been argued that the claim for compensation is not an industrial dispute as defined in the . Considering the issue of compensation in a water tight compartment the argument might appear to be attractive. But	 in our opinion	 in this case the claim for compensation by the company is a consequence flowing from an admitted industrial J dispute	 which in this case is whether the strike was illegal and/or unjustified and as against the condition of service as laid down in the certified standing order on which point our finding has been against the workmen. " The award of the Tribunal	 in its totality	 is quite prolix the reasons stated in arguing out its conclusions many and thus it is just to state that in the present case the arbitrators two retired Judges of the Calcutta High Court have made a sufficiently speaking award both t on facts and on law. They have referred to the strike being illegal with specific reference to the provisions of the Act	 but faulted them selves in law by upholding a case for compensation as axiomatic	 necessarily based on a rule of common law i.e.	 English common law. The rule of common law thus necessarily arising on the face of the award is a clear question of law. 22 What is this rule of common law? Counsel for the appellants inevitably relied on the tort of 'conspiracy ' and referred us to Moghul Steamship Co.(1); Allen vs Floor(2); Quinn vs Leathem(3) and Sorrel vs Smith (4). These decisions of the English Courts are a response to the societal requirements of the industrial civilisation of the 19th Century England. Trade and Industry on the laissez faire doctrine flourished and the law of torts was shaped to sene the economic interests of the trading and industrial community. Political philosophy and economic necessity of the dominant class animate legal theory. Naturally	 the British law in this area protected business from the operations of a combination of men	 including workers	 in certain circumstances. Whatever the merits of the norms	 violation of which constituted 'conspiracy ' in English law	 it is a problem for creative Indian jurisprudence to consider	 detached from anglo phonic inclination	 how far a mere combination of men working for furthering certain objectives can be prohibited as a tort	 according to the Indian value system. Our Constitution guarantees the right to form associations	 not for gregarious pleasure	 but to fight effectively for the redressal of grievances. Our Constitution is sensitive to workers ' rights. Our story of freedom and social emancipation led by the Father of the Nation has employed	 from the highest of motives	 combined action to resist evil and to right wrong even if it meant loss of business profits for the Liquor vendor	 the brothel keeper and the foreign cloth dealer. Without expatiating on these seminal factors	 we may observe that English history	 political theory and life style being different from Indian conditions replete with organised boycotts and mass satyagrahas	 we cannot incorporate English torts without any adaptation into Indian law. A tort transplant into a social organism is as complex and careful an operation as a heart transplant into an individual organism	 law being life 's instrumentality and rejection of exotics being a natural tendency. Here	 judges are sociological surgeons. Let us examine 'conspiracy ' in the English Law of Torts to see if even there it is possible to hold that an illegal strike per se spells the wrong. We may state that till recently it could not be said with any certainty that there was any such tort as 'conspiracy '. Salmond thought that there was not (See Salmond Law of Torts 505	 15 s Ed.). It is interesting that in Edition of Salmond	 Mogul is linked up by the learned author with a capitalist economy. Be that as it may	 the common law of England today is more or less clear	 some rumblings notwithstanding. "A combination wilfully to do an act causing damage to a man in his trade or other interests is unlawful and if damage in fact is caused is actionable as a conspiracy. To this there is an exception where the defendants ' real and predominant purpose is to advance their own lawful interests in a matter in which they honestly believe that those interests would directly suffer if the action against the plaintiff was not taken. In truth	 the Crofter case has made section 1 1	 (1) (2) (3) ; (4) 23 of the Trade Disputes Act	 1906	 largely unnecessary	 for there will now be few conspiracies arising out of trade disputes which are not protected at common law. " (pp. 508 509	 15th Edn.	 Sweet & Maxwell) (emphasis	 ours) The essence of actionable conspiracy is best brought out by Salmond: "The tort is unusual because it emphasises the purpose of the defendants rather than the results of their conduct." (p.513	 15th Edn.	 Sweet & Maxwell) (emphasis	 ours) Even when there are mixed motives	 'liability will depend on ascertaining which is the predominant object or the true motive or the real purpose of the defendant. Mere combination or action	 even if it be by illegal strike	 may be far away from a 'conspiracy ' in the sense of the law because in all such cases	 except in conceivably exceptional instances	 the object or motive is to advance the workers ' interests or to steal a march over a rival union but never or rarely to destroy or damage the industry. It is difficult to fancy workers who live by working in the industry combining to kill the goose that lays the golden eggs. The inevitable by product of combination for cessation of work may be loss to the management but the obvious intendment of such a collective bargaining strategy is to force the employer to accept the demand of the workers for betterment of their lot or redressal of injustice	 not to inflict damage on the boss. In short	 it is far too recondite for an employer to urge that a strike	 albeit illegal	 was motivated by destruction of the industry. A scorched earth policy may	 in critical times of a war	 be reluctantly adopted by a people	 but such an imputed motive is largely imaginary in strike situations. However	 we are clear in our minds that if some individuals destroy the plant or damage the machinery wilfully to cause loss to the employer	 such individuals will be liable for the injury so caused. Sabotage is no weapon in workers ' legal armoury. The leading case of Sorrel vs Smith (supra) emphasizes that a combination of two or more persons for the purpose of injuring a man in his trade is unlawful and	 if it results in damage to him	 is actionable. The real purpose of the combination is the crucial test between innocence and injury. It may well be that even where there is an offending object	 it may be difficult for a court to hold that there is a tort if one may read into the facts an equal anxiety for the defendants to promote their success which produces the plaintiff 's extinction. There is a penumbral region	 as Lord Sumner pointed out in Sorrel (Supra): ` "How any definite line is to be drawn between acts whose real purpose is to advance the defendant 's interests	 and acts	 whose real purpose is to injure the plaintiff in his trade	 is a thing which I feel at present beyond my power. " It is absolutely plain that the tort of conspiracy necessarily involves advertence to and affirmation of the object of the combination being the infliction of damage or distraction on the plaintiff. The strike 3 L390SCI/76 24 may be illegal but if the object is to bring the employer to terms with the employees or to bully the rival trade union into submission	 there cannot be an actionable combination in tort. In the present case	 it is unfortunate that the arbitrators simply did not investigate or pass upon the object of the strike. If the strike is illegal	 the tort of conspiracy is made out	 appears to be the proposition of law writ tersely into the award. On the other hand	 it is freely conceded by counsel for the appellant that the object was inter union rivalry. There is thus a clear lapse in the law on the part of the arbitrators manifest. 	 on the face of the award. We have earlier referred to the need for a fresh look at conspiracy F as a tort when we bodily borrow the elements of English law and apply them to Indian law. It is as well that we notice that even in England considerable criticism is mounting on the confused state of 1 the law of conspiracy. J.T. Cameron has argued (in 1965 Vol. 28 Modern Law Review p. 448) that: "experience has already shown that conspiracy is a hydra perfectly capable of growing two heads to replace an amputated one	 and the authorities contain material which could be used to impose liability in very wide and varied circumstances. It is time	 therefore	 to consider what form legislation should take	 and to urge that the proper answer is to remove the tort of conspiracy from the law altogether	 and with it the Rookes vs Barnard version of intimidation	 and to put in its place a different basis of liability. (CONSPIRACY AND INTIMIDATION: An Anti Meta physical Approach) The author complains that the fundamental basis is unsatisfactory and uncertain and demands that a complete re writing of the principles on which the tort of conspiracy and intimidation is necessary. We may as well suggest that	 to silence possible mischief flowing from the confused state of the law and remembering how dangerous J it would be if long	 protracted	 but technically illegal strikes were to be followed by claims by managements for compensation for loss of profits	 a legislative reform and re statement of the law were under taken at a time when the State is anxious for industrial harmony consistent with workers ' welfare	 This rather longish discussion has become necessary because the problem is serious and sensitive and the law is somewhat slippery even in England. We are convinced that the award is bad because the error of law is patent. The High Court has touched upon another fatal frailty in the ten ability of the award of compensation for the loss of profits flowing from the illegal strike. We express our concurrence with the High Court that the sole and whole foundation of the award of compensation by the arbitrators	 ignoring the casual reference to an ulterior 	 motive of inter union rivalry	 is squarely the illegality of the strike	 The workers went on strike claiming payment of bonus as crystalized 25 by the earlier settlement (d/2 10 1957). There thus arose an industrial dispute within section 2(k) of the Act. Since conciliation proceedings were pending the strike was ipso jure illegal (sections 23 and 24	. The consequence	 near or remote	 of this combined cessation of work caused loss to the management. Therefore the strikers were liable in damage to make good the loss. Such is the logic of the award. It is common case that the demands covered by the strike and the wages during the period of the strike constitute an industrial dispute within the sense of section 2(k)	 of the Act. Section 23	 read with section 24	 it is agreed by both sides	 make the strike in question illegal. An 'illegal strike ' is a creation of the Act. As we have pointed out earlier	 the compensation claimed and awarded is a direct reparation for the loss of profits of the employer caused by the illegal strike. If so	 it is contended by the respondents	 the remedy for the illegal strike and its fall out has to be sought within the statute and not de hors it. If this stand of the workers is right	 the remedy indicated in section 26 of the Act	 viz.	 prosecution for starting and continuing an illegal strike	 is the designated statutory remedy. No other relief outside the Act can be claimed on general principles of jurisprudence. The result is that the relief of compensation by proceedings in arbitration is contrary to law and bad. The Premier Automobiles Case(1) settles the legal issue involved in the above argument. The industrial Disputes Act is a comprehensive and self contained Code so far as it speaks and the enforcement of rights created thereby can only be through the procedure laid down therein. Neither the civil court nor any other Tribunal or body can award relief. Untwalia J.	 speaking for an unanimous court	 has	 n Premier Automobiles (Supra) observed: "The object of the Act	 as its preamble indicates	 is to make provision for the investigation and settlement of industrial disputes	 which means adjudication of such disputes also. The Act envisages collective bargaining	 contracts between Union representing the workmen and the management	 a matter which is outside the realm of the common law or the Indian law of Contract." After sketching the scheme of the Act	 the learned Judge stated the law thus. ". the Civil Court will have no jurisdiction to try and adjudicate upon an industrial dispute if it concerned enforcement of certain right or liability created only under the Act." * * * * * "In Deo vs Bridges (1831 1B and Ad	 847 (2) (1898)) A.C. 387 at p. 859 are the famous and of quoted words of Lord Tenterden	 C.J.	 saying: "where an Act creates an obligation and enforces the performance in a specified manner	 we take it to be a general rule that performance cannot be enforced in any other." (1) ; 26 Barraclough vs Brown & Ors(1)	 decided by the House of Lords is telling	 particularly Lord Watson 's statement of the law at p. 622: "The right and the remedy are given uno flatu and one cannot be dissociated from the other. " In short	 the enforcement of a right or obligation under the Act	 must be by a remedy provided uno flatu in the statute. To sum up	 in the language of the Premier Automobiles Ltd. (Supra): "If the industrial dispute relates to the enforcement of a right or an obligation created under the Act	 then the only 	 remedy available to the suitor is to get an adjudication under the Act. " Since the Act which creates rights and remedies has to be considered as one homogeneous whole	 it has to be regarded uno flatu	 in one breath	 as it were. On this doctrinal basis	 the remedy for the illegal strike (a concept which is the creature not of the common law but of section 24 of the Act) has to be sought exclusively in section 26 of the Act. The claim for compensation and the award thereof in arbitral proceedings is invalid on its face 'on its face ' we say because this jurisdictional point has been considered by the arbitrators and decided by committing an ex facie legal error. It was argued	 and with force in our view	 that the question of compensation by workers to the management was wholly extraneous to the Act and therefore	 outside the jurisdiction of a voluntary reference of industrial dispute under section 10 A. While we are not called upon to pronounce conclusively on the contention	 since we have ex pressed our concurrence with the High Court on other grounds	 we rest content with briefly sketching the reasoning and its apparent tenability. The scheme of the Act	 if we may silhouette it	 is to codify the law bearing on industrial dispute. The jurisdictional essence of proceedings under the Act is the presence of an 'industrial dispute '. Strikes and lock outs stem from such disputes. l he machinery for settlement of such disputes at various stages is provided for by the act. The statutory imprimatur is given to settlement and awards	 and norms of discipline during the pendency of proceedings are set down in the Act. The proscriptions stipulated	 as for example the prohibition of a strike	 are followed by penalties	 if breached. Summary procedures for adjudication as to whether conditions of service etc. 	 of employees have been changed during the s pendency of proceedings	 special provision for recovery of money due to workers from employers and other related regulations	 are also written into the Act. Against this backdrop	 we have to see whether a claim by an employer from his workmen of compensation . consequent on any conduct of theirs	 comes within the purview of the Act. Suffice it to say that a reference to arbitration under section 10 A is restricted to existing or apprehended industrial disputes. Be it noted that we are not concerned with a private arbitration but a statutory one governed by the 	 deriving its validity	 enforceability and protective mantle during the pendency of the proceedings	 from 10 A. No industrial dispute	 no valid arbitral (1) 27 reference. Once we grasp this truth	 the rest of the logic is simple. What is the industrial dispute in the present case? Everything that overflows such disputes spills into areas where the arbitrator deriving authority under section 10 A has no jurisdiction. The consent of the parties cannot create arbitral jurisdiction under the Act. In this perspective	 the claim for compensation can be a lawful subject for arbitration only if it can be accommodated by the definition of 'industrial dispute ' in s.2 (k) . Undoubtedly this expression must receive a wide coll notation	 calculated as it is to produce industrial peace. Indeed	 the legislation substitutes for free bargaining between the parties a binding award; but what disputes or differences fall within the scope of the Act? This matter fell for the consideration of the Federal Court in Western India Automobile Association(1). Without launching on a long discussion	 we may state that compensation for loss of business is not a dispute or difference between employers and workmen 'which is connected with the employment or non employment or the terms of employment or with the conditions of labour	 of any person '. We are unable to imagine a tort liability or compensation claim based on loss of business being regarded as an industrial dispute as defined in the Act	 having regard to the language used	 the setting and purpose of the statute and the industrial flavour of the dispute as one between the management and workmen. In this context	 we are strengthened in our conclusion by the provisions of section 33C which provides for speedy recovery of money due to a workman from an employer under a settlement or an award	 but not for the converse case of money due to an employer from workmen. There is no provision in the Act which contemplates a claim for money by an employer from the workmen. And indeed	 it may be a little startling to find such a provision	 having regard to workmen being the weaker section and Part IV of the Constitution being loaded in their favour. The new light shed by the benign clauses of Part IV must illumine even pre Independence statutes in the interpretative process. As yet	 and hopefully	 claims by employers against workmen on ground of tortious liability have not found a place in the pharmacopoeia of Indian Industrial Law. However	 as earlier stated	 we do not pronounce finally as it is not necessary. There was argument at the bar that the High Court was in error in relying on section 18 of the to rebuff the claim for compensation. We have listened to the arguments of Shri B.C. Ghosh in support of the view of the High Court	 understood on a wider basis. Nevertheless	 we do not wish to rest our judgment on that ground. Counsel for the appellants cited some decisions to show that an award falling outside the orbit of the Indian Arbitration Act can be enforced by action in court. We do not think the problem so posed arises in the instant case. We dismiss the appeal but	 in the circumstances	 there will be no order as to costs. P.H.P. Appeal dismissed. (1) [1949] I L. L. J. 245.

Summary:
During the year 1948	 the respondent	 workmen working with both the appellants went on illegal strike on account of Trade Union rivalry. The workmen were not paid wages for the strike period and the appellants lost their profit during the period. The employers and the workmen entered into an agreement during the pendency of the conciliation proceedings and referred the claims of workmen for salaries during the strike period and the claims of the employers for compensation for loss due to the strike to the joint arbitration of two retired High Court Judges and one retired Member of a Labour Appellate Tribunal under section 10 A of the . The arbitrator delivered their award and held that the workmen participating in the strike were not entitled to wages for the strike period. The arbitrators however	 awarded huge compensation to the employers against the workmen for the losses incurred by the employers during the strike period. The workmen challenged the award as illegal and void by filing two writ petitions in the High Court. The High Court upheld that part of the award which directed that the workmen participating in tho strike were not entitled to wages. The High Court however	 quashed the part of the award which directed payment of compensation by the workers to the management. In appeal by Special Leave under Article 136	 the appellants contended: 1. The award under section 10 A of the Act savours of a private arbitration and is not amenable to correction under Article 226 of the Constitution. The award of compensation by the arbitrators suffers from no vice which can be regarded as recognised grounds for the High Court interference. ^ HELD: (1) The expansive and extraordinary powers of the High Court under Article 226	 as wide as the amplitude of the language used	 indicates and so can affect "any person"	 even a private individual and be available for "any other purpose"	 even one for which another remedy may exist. The insertion of Article 226(1A) reiterates that writ power can be exercised against any person by reference to the residence of such person. It is one thing to affirm the jurisdiction and another to authorise free exercise. This Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. [17C E] 2. An arbitrator exercising powers under section 10A can bind even those who are not parties to the reference or agreement and the whole exercise under section 10A as well as the source of the force of the award on publication derive from the statute. It is legitimate to regard such an arbitrator now as part of the methodology of the sovereign 's dispensation of justice	 thus falling within the rainbow of statutory tribunals amenable to judicial review. The award in the present case is not beyond the legal reach of Article 226. [18B C] 13 3. The answer to the question whether the High Court should have exercised its powers under Article 226 in the present case will depend upon whether the arbitrator has tied himself down to obviously unsound legal proposition in reaching his verdict appearing from the face of the award. The arbitrator may not state the law such	 even then such cute silence confers no greater or subtler: immunity on the award than plain speech. The need for speaking order	 where considerable numbers are affected in their substantial rights	 may well be a facet of natural justice or fair procedure although in this case we do not have to go so far. The law sets no premium on juggling with drafting the award or hiding the legal error by balancing out. The inscrutable face of the sphinx has no better title to invulnerability than a speaking face which is a candid index of the mind. [19D. 20F H] 4. According to the arbitrators	 the strike was illegal being in violation of section 24 of the Act. the illegal strike was animated by inter union power struggle and that it inflicted loss on the management by forced closure and that the loss flowing from the strike was liable to be recompensed by award of damages. In this chain of reasoning the question of law whether an illegal strike causing loss of profit justifies award of damages is necessarily involved. The arbitrator held in the affirmative and according to us it is an unhappy error of law. In the present case the arbitrators have made a sufficiently speaking award both on facts and on law. After coming to the conclusion that the strike was illegal they held that compensation necessarily follows based on the rule of English common law. The English cases laying down the rule of common law were a response to the requirement of Industrial civilization of the 19th Century England. Trade and industry on the laissez faire doctrine flourished and the law of torts was shaped to serve the economic interests of the trading and industrial community. Whatever the merits of the norms	 violation of which constituted 'conspiracy ' in English Law	 it is a problem for creative Indian Jurisprudence to consider how far a mere combination of men working for furthering certain objective can be prohibited as a tort according to the Indian value system. Our constitution guarantees the right to form associations	 not for gregarious pleasure	 but to fight effectively for the redressal of grievances. Our constitution is sensitive to workers rights. English history	 political theory and life style being different from Indian conditions where the Father of the Nation organised boycotts and mass satyagrahas we cannot incorporate English conditions without any adaptation into Indian Law. [21B C	 22A	 B C	 D] 5. Even in England	 till recently it could not be said with any certainty that there was any such tort as conspiracy. The tort is unusual because it emphasizes the purpose of the defendants rather than the result of their conduct. Even when	 there are mixed motives liability will depend on ascertaining which is the predominant object of the true motive or the real purpose of the defendant. The motive of an illegal strike may be to advance the workers ' interest or steal a march over a rival union but never or rarely to destroy or damage the industry. However if some individuals destroy the plant and machinery willfully to cause loss to the employer such individuals will be liable for the injury so caused. Sabotage is no weapon in workers ' legal armoury. It is absolutely plain that the tort of conspiracy necessarily involves advertence to the object of the combination being the infliction of damage on The plaintiff. The strike may be illegal but if the object is to bring the employer to terms with the employees or to bully the rival trade union into submission there cannot be an actionable combination in tort. In the present case	 the arbitrators did not investigate the object of the strike. The arbitrators assumed that if the strike is illegal the tort of conspiracy is made out. The counsel for the appellants fairly conceded that the object of the strike was inter union rivalry. There is thus a clear lapse in the law on the part of the arbitrators manifest on the face of the award. [22F	 231B C	 E	 H. & 24A B] 6. It is common case that the demand for the wages during the strike period constitutes an industrial Dispute within section 2(k) of the Act. It is agreed by both the sides that section 23 read with section 24 makes the strike in question illegal. An illegal strike is the creation of the statute and the remedy for the illegal strike and its fall	 out has to be sought within the statute and not de hors 14 it. No other relief outside the Act can be claimed on general principles of jurisprudence. The case of Premier Automobiles followed. [25 B C] 7. The enforcement of a right or obligation under the Act must be by a remedy provided in the Statute. The right of the management to claim compensation is not provided by the Act	 and	 therefore	 the arbitrators Committed an ex facie legal error. The consent of the parties cannot create arbitral jurisdiction under the . The claim for compensation cannot be a lawful subject for arbitration because it is not covered within the definition of Industrial Disputes in section 2(k). We are unable to imagine a tort of liability or compensation based on loss of business being regarded as an industrial dispute as defined in the Act. Section 33 provides for speedy recovery of money due to a workman from an employer under a settlement or award. It does not provide for recovery of money by the employer from the workman. Obviously because the workman belongs to the weaker section. Claims by employers against the workmen on grounds of tortious liability have not found a place in the pharmacopeia of Indian Industrial Law. [26 D	 27A	 C	 D E]