The a.ward was however unstamped and un v. Ballahhdas

The a.ward was however unstamped and un registered. An objection was taken to a judgment being passed on such an award. On such objection, the trial court passed an order remitting the award to the to the arbitrator court on a duly stamped paper and after getting it registered. re-submitting it Against this order the High Court at Nagpur learned Single Judge was moved in revision. The hearing the revision application took the view that the award required to be stamped. But he felt that it could not be remitted to the arbitrator under s. 16 of the Arbitration Act, which is the only provision under which an award can be remitted to an arbitrator. It appears that there was an earlier judgment of the Nagpur High Court in the case of Ramkumar v. Kushalchand {') in which it had been held that where the award was unstamped it could under paragraph 14 of Schedule I to the Code of Civil Procedure be remitted to the arbitrator with a direction to re-write it on a stamped paper and re-submit it to court. The provisions of that para.graph of the Code have now been substantially reproduced in s. 16 of the Arbitration Act. The trial Judge had based himself on this earlier judg ment of the High Court. Tho learned Single Judge was apparently not satisfied with the correctness of the deoision in Ramkumar's case(') and he questions for decision by a referred larger bench of that High Court. The questions referred were : (a) Is the a.ward made on a reference by the Court on an application under section (I) A. I. R. 1928 Nag. 166. 1901 Rildiabdaa v. Ballahhdas Sarkar J. \ 478 SUPREME COURT REPOltTS [1962J SUPP. 20 _of tlie Arbitration Act oh1J.rgeable to stamp· duty? , (b) Is such an 'award compulsorily regis terable when it refates to partition of immovii. ble property qC the .;value . of one hundred rupees and upwards? ' ; " (o) Has the Court powers under ~ection 16 (1) (c) of the Arbitration Act of 1940 or otherwise to remit an aw!trd to the arbitrator or umpire fo get it stamped and/or registered? The matter was thereupon heftrd by a Division Bench of the High Court constituted by ;two learned J11dge~ .. Befor~ them it was agreed by both. the parties that the awar\1 r~quired to be stamped,, This dispo_sed of the, first question. The .learned J udgos felt that it .~as !}pt nepcssary .at that stage of the proceed_ing to ·ana.wer tho second. question,. namely, w~ether tho award required ~!Jgistration. In the re~ult they c,inly, ans,11ere.d the third question. as to whether an awar4 could be remitte~- JY!der f!· 16 (1) .(c) of the Arbitration Act to the arbitrator to get it stampec). a,nd, th!Jy a~swer;~d t)lat question in the affirmative. Th~y held, that a want of stamp would be all illegality apparEtnt on the fa9e of the awar-0. and therefore the case would fall under s. i6(l) (c) of the Arbitra~ion Act. They also held, follq~ing the case .of Lq~hmichand v. Kalloolal (1), that the qopying of the award on a stamped pa.per was purely ministerial, and making of an award did not· deprive the arbitra.~or of the authority to copy an award on the requisite ~ta.mp paper. They a.pprov!Jd of the decision in Ram.kumar v. K'U8hal ). The present ~ppeal is against this judgment chand (1 of the Division Bench. The only qu.estion argued at the bar was whether the answer of the Division Bench to the third questio.n was correct. (1.) 19S6 N. L. J •. 504. (2) A. T. R. 1928 Nag. 166. 1161 --Ril!Ulbdas v. Ba//abltdas Sarkar J, - (1) S.C.R. SUPREME OOURT REPORTS 479 Now s. 16(1)(0) of the Act is in these terms: S. 16 (1): The Court may from time to time remit the award or any matter referred to the arbitrators or umpire arbitration to such terms as it for reconsideration upon thinks fit- ................. ' ................. . (c) where an objection to the legality of the award is apparent upon the face of it. We think that the Division Bench of the Hillh Court was clearly in error. Under s. 16 of the Arbitration Act an award can be remitted to the arbitrators only for reconsideration. When it is remitted for re-writing it on a stamped paper, it is not remitted for reconsideration. Recosideration by the arbitrators necessarily imports fresh con· sideration of matter& already considered by them. Now they can only consider and give a decision upon matters which are referred to them under t.he arbitration agreement. It follows that the recon 'lideration can only be as to the merits of the award. They reconsider nothing when they re-write the award on a stamped paper. We think the matter was correctly put by Mitter, J., in Nani Bala Saha v. Ram GopaJ Saha (1) in the following obser vation: "That cl. (c) means this and nothing more: namely, that where the court finds an error of law in the award itself or in some document actually incorporated thereto on which the arbitrator had based his award, that is to say, finds the statement of some erroneous legal proposition which is the basis or the award, it can remit the award to the arbitrator for reconsideration" and "Want of registration is a defect dehors the award or the decision of (I} A. I. R. 1945 Cal. 19, 22. - l~I RiJhabd4s •• Ba//a6M11

5.,U,J. 480 SUPREME OOURT REPORTS [1962.1 SUPP • • the arbitrator, and so in our judgment is not covered by cl. (c) of S. l6 (I l, Arbitration Act of 1940". What was said there about a want of regi~tration is clearly equally applicable to a want of stamp. Mr. Pathak appearing for the respondent contended that under s. 14 (I) of the Arbitration Act it was clearly the duty of the arbitrator to inform the parties of the amount of stamp duty payable on the award. Section 14 (I) is in thMe terms: Section 14 (I) When the arbitrators or umpire have made their award, they shall sign it and shall give notice in writing to the parties of the making and siiming thereof and of the amount of fees and charges payable in respect of the arbitration and award. direoting information. We are unable to see how this section can provide the basis for the order made in this case. It only says that tho arbitrators shall inform the parties of the fees and charges payable. Even assuming that the word 'charges' includes duty payable for the stamp to be affixed to the award, at best, this section would support an order It would arbitrators to supply this not justify an order requiring the arbitrators to inscribe the award afrl'sh on a stamped paper and re.submit it to court. As at present advised, we have grave doubts if the foes and charges men· tioned in s. 14 (l) include the stamp duty payable on the award. Section 17 or the Stamp Act requi res that stamping shouM be at the time of execu tion. Under s. 14 (I) of the Arbitration Act its execution, that the arbitrators are that is required to supply foes and charges. It is, of course, no part of the duty of the arbitrators under the Aot or otherwise to find the costs of stamp themselves. Therefore tho information about the singing of is only after (l) s.c.R. SUPREME COURT REPORTS 481 it is difficult to appreciat.e how the word 'charges' mentioned in this section includes stamp. But on this question it is not necessary for us to express any final opinion in this case. J9Gl Riklr•bias v. Ball abhdas Sarkar J, Mr. Pathak contened that even if the caBe did not come within s. 16 ( 1) ( c) of the Arbitration Act, the order in the present case can be supported under s. 151 of the Code of Civil Procedure wltich preserves the inherent power of a court to make such orders as may be necessary for the ends of justice. true that s. 41 of the Arbitration Act makes the provisions of the Code of Civil Pro cedure applicable to proceedings before a court under tho Arbitration Act. But it is well known that after making his award the arbitrator is functus officio. To cite one authority for this pro position we may quote the observations of Mellish, L. J., in Mordue v. Palmer(•). it is . "I think the result of the cases at law is that when an arbitrator has signed a docu ment as and for his award, he is functus officio, and he cannot of his own authority remedy any mistake." the award In the present case, ex-hypothesi, has already been made and the arbitrator has therefore become funotus officio. It is that award which requires stamp. Section 151 of the Code cannot give the court power to direct the arbitrator to make a fresh award; that would be against well-established principles of the law of arbitration. It would again be useless to havti another copy of the award prepared and stamped for the copy would not be the award and no action in a court can be taken on it. The order cannot therefore be supported by s. 151 _of the Code. It is of some interest to read here the following passage from Russel on Arbitration 14th Ed., p. 325. (I} (\870 71) L. R. 6 Cb. App. 22, 31. 1961 Ri'lehah<laJ v. BallatJ11/a1 Sarkar .T. 482 SUPREME COURT REPORTS [1962) SUPP. ... "'.rhe usual practice in preparing an award is to have two copies ma.de of it. One the arbitrator RignR, which then becomes the original award, and thiR is delivered to tho party who tak<'s up the award. The other copy is a.vaihhlc for tho other parties if they apply for it." "The original award, before it is a.va.il abl1.1 for any purpose whatsoever, must be duly stamped, but there is no obligation upon tho arhitmtor to Rtamp it, and he does not usually do so.'' should observe here tho last para \Ve graph in the aforesaid. quotation does not appear in the 16th edition of Russel's work. Perha.p~ this is bccauRc in England a.n award is no more reGuircd to be stamped by virtue of s. 35 Sched. 8, of tho Fina.nee Act, 1949, which was passed after tho 14th edit ion was published. Lastly, Mr. Pathak tried to support the order under ss. 13 ( d) and 15 (b) and ( c) of the Arbitra tion Act. A bare perusal of the provisions men tioned would show that the order made in this case cannot bo based on any of them. S<'ction 13 (d) deals with correction of clerical mi&ta.kcs or acciden• ta.I slips in tho a.ward, neither of which we think an omission to stamp is. Further more, s. 13 is only an enabling section giving certain powers to tho arbitrator. Tho arbitrator cannot bti compelled to exerciFe these powera. Section 15 deals with a. court's power to modify or correct an award. In the present case, the (',ourt did not purport to 11x ercise that power. We, therefore, think that the Division Bench w&S in error in thinking that 'ln order could be made remitting the awe.rd to the arbitrator with a. rlirection to re-write it on a. stamped paper anti re submit it to court. That is the only point that wo decide in thiR case. 1961 Rikhabdas v. Bal/ahhdas Sarkar J. 1961 Nou1111bt1 16, (I) S.C.R. SUPREME OOURT REPORTS 483 In the result this appeal is allowed. The orders of the Courts below remitting the award are set aside. The appellant 'vill get the cost through out. Nothing that we have said in this judgment will aff3ct the right of the parties to take such steps, if any are available to them at law, for cur· ing the defect arising from the award being on an unstamped paper. Appeal allowed. THE CALCUTTA JUTE MFG. CO. LTD. v. CALCUTTA JUTE MFG. WORKERS' UNION (P. B. GAJENDRAGADKAR, A. K. SARKAR and K. N. WANCHOO, JJ.) Industrial Dispnte-Oharge of defiance and insubordination Authority if m1Mt be a direct superior-Enquiry-Incidental matter if could be considered-Standing Order 14 (c) (i). J, a sardar of the Batching Department of the appellant company, brought to the notice of G, a supervisor of the depart ment, that one R of the Spinning Department was throwing away as unusable some workable roves. G on finding the report correct, with a view to make a complaint against R's work to the superior authority asked J to collect the roves thrown away. R tried to prevent J from collecting the roves; took a menacing attitude and abused G on G intervening R .Soon another sardar S took R's side and in filthy language. also abused G and threatened him with violence. The mana gement of the appellant company on the complaint of G served charge·sheets on the 2 workmen R and S which stated that as they had used abusive and filthy language and threa· tened to assault G, a supervisor, they were guilty of misconduct under standing order No. 14 \c) (i) which contemplated two types of misconduct; one wilfu insubordination and the other disobedience of any lawful and reasonable order of a superior. The tribunal inter alia held that G not being the super visor of the Spinning Department where R and S worked was not a direct superior of these workmen and they were not guilty of insubordination or disobedience within the Standing Order.