High Courts in the country seem to have a unanimous opinion with regards to the fact that only statutory arbitration is subject to a writ under Article 226. The discrepancy arises with the question: whether arbitration under Section 10A of the Industrial Disputes Act is statutory.

The opinion of the Kerala High Court in the case of 'A.T. K. M. Employee's Assn. v. Musaliar Industries Ltd.' was that an application of writ was not applicable under Article 226 as the arbitration is subject to agreement of the parties involved and not to a public body and it does not depend on a statutory jurisdiction.
In a contradicting opinion by the High Court of Bombay in the case of 'Air Corporation Employees' Union v. D. V. Vyas' it was held that the arbitration under Section 10A consists of all the necessary attributes of a statutory arbitration. The court stated the following:

"Even assuming, therefore, that the word " tribunal in Art. 227 of the Constitution means statutory and not private tribunals, we are of the opinion that under Art. 227, the High Court has the power of superintendence over the arbitrators who function under S. 10A of the Industrial Disputes Act."

The opinion seems to be in conformity with the provisions enumerated under the Act. The arbitrator is duty-bound to investigate and submit the award to the Government (Section 10A sub-section 4). It is without a doubt a body which is quasi-judicial in nature. It is also important to note that the Industrial Disputes Act does not create a distinction between an award of the tribunal and that of an arbitrator.

Supreme Court

In the case 'Engineering Mazdoor Sabha v. Hind Cycles Ltd.', dissected the question of whether an arbitration under the Industrial Disputes Act is a tribunal to be subject to Article 136. The Court opined that even though they might not be bound by many of the technical rules of law they still have to fulfill the requisite of being consistent with the general principles of law. The Court declared in the case:

“In other words, they have to act judicially and reach their decisions in an objective manner and they cannot proceed purely administratively or base their conclusions on subjective tests or inclinations.”

The apex court conceded that it should be recognized as a statutory arbitrator but even this does not fulfill the requirement of a tribunal for it to be covered under the scope of Article 136. It drew a line that for a body to be recognized as a tribunal, a more fundamental characteristic would be its constitution. The court said: “…it should be constituted by the State and should be invested with the States’ inherent judicial power.” 

Consequences

The purpose for introducing such a provision was to create a mechanism where the employee-employer relationship can be preserved and maintained in harmony by ironing out the conflicts in an efficient and voluntary manner. The judgment by the Apex Court inserted an element of uncertainty. The parties would not prefer leaving their fate in the hands of an arbitrator whose decision may not be even reviews by any judicial body.