JUDGMENT 1. - In this writ petition under Article 226 of the Constitution of India, the petitioner Union has prayed for issuance of a writ, order or direction to quash the award of the Arbitrator, respondent No. 2, dated 1st December, 1976 and for a further direction to respondent No. 1, M/s. Jai Drinks Pvt. Ltd. to reinstate the concerned five workmen in service with full back wages. 2. Briefly stated the facts of the case are that the petitioner is a registered trade union consisting of the workers working in M/s. Jai Drinks Pvt. Ltd. Jaipur. The petitioner has contended that after the formation of the Union, the management of the respondent Company M/s. Jai Drinks Pvt. Ltd. started victimising the workers. The active members of the Union were charge-sheeted on false and fabricated grounds; the names of such workers are - S/Shri T.S. Moriya, R.S. Sharma, O.P. Sharma, K.L. Punjani and Bhanwarlal. It is further alleged by the petitioner Union that on the false and fabricated charges, the services of the said workmen were terminated without giving them an opportunity to defend themselves and violating the principles of natural justice. The workmen of the Company had gone on an indefinite strike from the after-noon of 21st October, 1974 to press their just and legitimate demands. Because of the strike, the atmosphere in the factory was surcharged. In order to conduct an inquiry in the matter of charges against the said five workmen, an Advocate was appointed as an Enquiry Officer by the Company, during the strike who fixed the enquiry during the period of strike. The Union requested the management and the Enquiry Officer to postpone the enquiry during the surcharged atmosphere. However, the enquiry was held without proper notice to the workmen. The strike continued for some time, but was withdrawn after an agreement was reached between the Union and the management. Two issues in this regard were referred to respondent No. 2, Arbitrator. The two issues that were referred to the Arbitrator through the agreement, dated 11th March, 1975, are as follows: 1. The cases of dismissal of the following five workmen/staff members shall be referred to the arbitration of Shri N.K. Joshi, whose decision shall be final and binding on the parties: 1. Shri T.S. Morya 2. Shri O.P. Sharma 3. Shri R.S. Sharma 4. Shri K.L. Punjani 5. The cases of dismissal of the following five workmen/staff members shall be referred to the arbitration of Shri N.K. Joshi, whose decision shall be final and binding on the parties: 1. Shri T.S. Morya 2. Shri O.P. Sharma 3. Shri R.S. Sharma 4. Shri K.L. Punjani 5. Shri Bbanwar Lal Rest of the dismissed workers shall report on duty along with other workers. The workers, whose case has been referred to arbitration shall be paid full wages, till their cases are decided by an arbitrator. 2. Bonus at the rate of 8.33% for the year 1973 has already been paid The Union demand for additional bonus shall be referred to the arbitration of Shri N.K. Joshi. whose decision shall be final and binding on the parties." 3. The Award made by the Arbitrator is in respect of both the issues. In the writ petition, the Union has challenged the Award only on issue No. 1. As such, the judgment relates to issue No. 1 only. 4. Before the Arbitrator, the Union filed a statement of claim on 5th April, 1975. The management also submitted its written statement on 22nd May, 1975. A rejoinder was also filed on 30th July, 1975. The management also gave a written reply to the rejoinder on 29th August, 1975. 5. In the writ petition, the petitioner has submitted that on 25th September, 1975, it was decided between the parties before the Arbitrator that the parties would submit their written arguments. Subsequently, written arguments were submitted. 6. The grievance of the petitioner Union is that without giving any opportunity to adduce evidence, respondent No. 2 passed his award on 1st December, 1976. The Award given by the Arbitrator was challenged before the Industrial Tribunal by following the procedure laid down under Section 10-D of the Industrial Disputes Act as applicable to the State of Rajasthan. However, respondent No. 1 objected to the maintainability of the application under Sec. l0-D of the Industrial Disputes Act, 1947, (in short the Act). The objection raised was decided in favour of the petitioner Union by the Tribunal vide its order dated 28th January, 1978. The petitioner challenged the order before this Court. However, this Court observed that the filing of the writ petition directly challenging the award of the arbitrator would have been a better remedy to the petitioner Union. The objection raised was decided in favour of the petitioner Union by the Tribunal vide its order dated 28th January, 1978. The petitioner challenged the order before this Court. However, this Court observed that the filing of the writ petition directly challenging the award of the arbitrator would have been a better remedy to the petitioner Union. The petitioner Union, therefore, withdrew its application before the Industrial Tribunal, and filed this writ petition. In this writ petition, the Award of the Arbitrator, dated 1st December, 1976, has been challenged on the various grounds. which are as follows : 1. That the Enquiry Officer did not afford a fair opportunity to the charge-sheeted employees to defend themselves and also held an ex parte enquiry against them. Thus, the enquiry is unfair and violative of the principles of natural justice, equity and fairplay, 2. That the finding of the Enquiry Officer is perverse. 3. That the Arbitrator misdirected himself and failed to consider that by virtue of Section 11-A of the Act, the Arbitrator was competent to appreciate the evidence imposed; but he miserably failed to discharge his obligation under Section 11--A. 4. That it was the duty of the Arbitrator to have allowed the parties to lead evidence as to the fairness of the enquiry. 5. That the imposition of punishment was shockingly disproportionate. The imposition of penalty was also illegal, as while awarding punishment, the management failed to take into consideration the extenuating and mitigating circumstances. Consequently, the punishment awarded by the Arbitrator has become void. 6. That the Arbitrator failed to consider the scope of Section 11-A of the Act, which empowers the Arbitrator to reduce the quantum of punishment. 7. In the reply filed by respondent No. 1, it has been contended that the Award was fair and all reasonable opportunities were afforded to the charge- sheeted workmen. The management has further contended that the enquiry was held properly. Charge-sheets were issued to the workmen concerned who received the same. Proper notice of enquiry was given. Notices were also published in the newspapers. In spite of notice, the workmen abstained from the enquiry deliberately on flimsy grounds. The Enquiry Officer, thus, had no option but to proceed exparte. The management has further contended that the enquiry was held properly. Charge-sheets were issued to the workmen concerned who received the same. Proper notice of enquiry was given. Notices were also published in the newspapers. In spite of notice, the workmen abstained from the enquiry deliberately on flimsy grounds. The Enquiry Officer, thus, had no option but to proceed exparte. The management has also contended that at no time, the petitioner Union had made a request to the Arbitrator to allow the employees to lead their evidence before him for proving that the enquiry was not fair. The management has further submitted that the dismissal of the five workmen cannot be said to be improper, mala fide or unjust. The Arbitrator has considered the circumstances and passed his award. With regard to the punishment, the submission of the management in the written statement is that the charges were quite serious and merited dismissal. 8. Shri P.K. Sharma, learned counsel for the petitioner Union, has challenged the Award of the Arbitrator on the grounds referred to above. The submission of Shri Sharma, in short, is that the enquiry was not fair as it was an ex parte enquiry Wherein no proper opportunity was given to the charge sheeted employees. Further the Arbitrator failed to discharge his obligation under Section 11-A inasmuch as he has not given any opportunity to the charge-sheeted employees to adduce evidence on the fairness of enquiry and that the finding recorded by the Enquiry Officer is perverse. Shri Sharma has laid much emphasis during the course of arguments that the Arbitrator completely misdirected himself inasmuch as he has not considered the evidence himself as is required under Section 11-A of the Act. Similarly, with regard to punishment, the Arbitrator failed to exercise his powers which are vested in him under Section 11-A of the Act. The submission of Shri Sharma is that vide powers have been conferred upon the Arbitrator to examine the order of dismissal and to interfere in the order of punishment, but the Arbitrator failed to exercise his jurisdiction properly. 9. Shri U.N. Bhandari, learned counsel for respondent No. 1 has submitted that there is no infirmity in the Award. The Arbitrator has taken into consideration all the points which were raised by the Union in the written submission. 9. Shri U.N. Bhandari, learned counsel for respondent No. 1 has submitted that there is no infirmity in the Award. The Arbitrator has taken into consideration all the points which were raised by the Union in the written submission. He has further submitted that Section 11-A is not applicable so far as the Award of the Arbitrator is concerned and that no interference can be made under Article 226 against the Award of the Arbitrator unless a clear case is made out on the ground of misconduct of the Arbitrator in the proceedings. As regards punishment, his submission is that the charges were serious and merited dismissal. 10. We have given our thoughtful consideration to the submissions made by the learned counsel for the parties Shri Bhandari has placed reliance on Neelakantan and Bros. Construction v. S. E. National Highways, (1988) 4 SCC 462 ) , in which the Hon'ble Supreme Court has laid down that an Award of the Arbitrator cannot be interfered with unless there is a patent mistake of law and gross misstatement of facts resulting in miscarriage of justice or of equity. On the basis of this judgment, Shri Bhandari has submitted that no case is made out for assailing the Award of the Arbitrator. Shri Bhandari has also placed reliance on M/s. Kapur Air Products v. Delhi Municipal Corporation. AIR 1988 Delhi 26 , in which a Division Bench of the Delhi High Court has taken the view that the Court should not interfere with the Award of the Arbitrator on the ground that there is an error of law apparent on the face of the Award. Even if the view taken by the Arbitrator does not accord with the view of the Court, the Court will interfere only if the Arbitrator has acted illegally in reaching his decision. 11. Shri Bhandari has also placed reliance on Section 11-A and has submitted that Section 11-A gives powers to the Labour Court, Tribunal and National Tribunal to give an appropriate relief in cases of discharge or dismissal of a workmen but such power under Section 11-A has not been given to the Arbitrator. 12. Controverting his submission Shri P.K. Sharma, learned counsel for the petitioner Union has cited a judgment of the Supreme Court in Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha, AIR 1980 SC 1896 . 12. Controverting his submission Shri P.K. Sharma, learned counsel for the petitioner Union has cited a judgment of the Supreme Court in Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha, AIR 1980 SC 1896 . In that case, in the majority judgment, the Supreme Court has taken the view that under section 11-A, though, there is omission of the word "Arbitrator", but "arbitrator" is included in the term 'Tribunal' itself and, thus, the Arbitrator has the authority to investigate into propriety of discharge or dismissal and veracity of the misconduct. The Supreme Court has further stated that even if Section 11-A is not applicable. arbitrator under Section 10-A is bound to act in the spirit of legislation under which he is to function. Thus, the Arbitrator under Section 10-A will have to decide keeping in view the spirit of Section 11-A. This judgment of the Supreme Court, thus, clearly resolves the controversy raised by Shri U.N. Bhandari that an Arbitrator appointed under Chapter III-A of the Industrial Disputes Act, as amended by the Rajasthan Legislature and applicable to Rajasthan, has the same power as are given to the Labour Court or the Industrial Tribunal. In this regard, the following observations made by the Supreme Court would be relevant : "Sec. 11-A did clothe the arbitrator with similar power as tribunals, despite the doubt created by the abstruse absence of specific mention of 'arbitrator' in Section 11-A." 13. The next question that arises on the objection raised by Shri U.N. Bbandari is that the Award of the Arbitrator is not amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution. though, different High Courts have observed in a different manner. Kerala High Court took the view that such an Arbitrator is not a statutory arbitrator, in ATKM Employees' Association v Musaliar Industries, (1961) 1 LLJ 81) . The same view was taken by the Madras High Court in ( 51 Anglow-American Direct Tea Trading Company v. Its Workmen (Estates Staff Union of South Indian and others. (1961) I LLJ 752) . But a contrary view has been taken by the Bombay High Court in Air Corporations Employees' Union v. Vyas (DV) (1962) I LLJ 31) and Patna High Court in Rohtas Industries Staff Union v. State of Bihar, (1962) II LLJ 420 . Taking the view that the Arbitrator has all the attributes of statutory arbitrator. (1961) I LLJ 752) . But a contrary view has been taken by the Bombay High Court in Air Corporations Employees' Union v. Vyas (DV) (1962) I LLJ 31) and Patna High Court in Rohtas Industries Staff Union v. State of Bihar, (1962) II LLJ 420 . Taking the view that the Arbitrator has all the attributes of statutory arbitrator. In Engineering Mazdoor Sabha v. Hind Cycles, (196) II LLJ 760) , the Hon'ble Supreme Court had the occasion to consider as to whether the Arbitrator under Section 104 is a Tribunal within the meaning of Article 136 of the Constitution and the Hon'ble Supreme Court observed that having regard to the various provisions of the Industrial Disputes Act, it may perhaps be possible to describe such an Arbitrator in a loose sense a statutory arbitrator. In Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha (Supra), the Supreme Court considered as to whether an arbitrator is a Tribunal or not. The Supreme Court in that case observed that a Tribunal in literally sense is a seat of justice. Tribunal simpliciter has a sweeping signification and does not exclude arbitrator. The Supreme Court further observed that an Arbitrator under the Industrial Disputes Act. 1947, has the power to bind even those who are not parties to the reference or agreement and the whole exercise under Section 10-A as well as the source of the force of the Award, on publication derived from the statute, it is legitimate to regard such an arbitrator now as part of the infrastructure of the sovereign's dispensation of justice, thus falling within the rainbow of statutory tribunals amenable to judicial review. Thus in Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha (supra), the Supreme Court has clearly laid down that Article 226 of the Constitution enables the High Court to interfere with an award of the Arbitrator if that is based on complete misconception of law, or it is based on no evidence, or no reasonable man would come to the conclusion to which an Arbitrator would arrive. Thus, the objection raised by Shri U.N. Bbandari with regard to non-maintainability of the writ petition under Article 226 of the Constitution is also not tenable. Thus, the objection raised by Shri U.N. Bbandari with regard to non-maintainability of the writ petition under Article 226 of the Constitution is also not tenable. After having held that an Arbitrator is one of the authorities under Section 11-A and has power to re-appreciate the evidence tinder Section 11-A, we may certainly state that an Arbitrator has power examine whether the punishment imposed is excessive or not. 14. Coming to the facts of the case, first, we would like to examine whether proper opportunity to defend was given to the charge-sheeted employees or not? From the facts on record, it is evident that the Enquiry Officer had given notice of enquiry to the workmen. The notices of the enquiry were also published in the newspaper; but the charge-sheeted employees did not appear before the Enquiry Officer on the ground that during the period of strike, no enquiry should be held against the workmen concerned. In the written submissions made by the petitioner Union before the Arbitrator, the same ground was taken that the enquiry was held during the strike period. But, nowhere it is the case of the petitioner Union that they were not served with the notices of enquiry. The Arbitrator in his Award has considered this aspect of the matter and held that the enquiry notice was published in the Rajasthan Patrika. dated 21st November, 1974 and the enquiry was fixed on 25th November, 1974 The employees did not attend the enquiry. Hence, it was held exparte. The Tribunal thoroughly discussed the case of each workmen. With regard to T.S. Moriya, the Tribunal recorded a finding that the enquiry was fixed on 7th November, 1974, for which notices were issued at his residential address under the registered A/D. Notices were also offered him personally for service. Shri Moriya refused to take notice of the letter personally, nor he accepted the letter sent to him by postal service. Though, Shri Moriya failed to appear on 7th November, 1914, still, a further opportunity was given to him and the enquiry was kept on 9th November, 1974 and notices were published in the Rajasthan Patrika, dated the November, 1974. In the second enquiry, also, notices were published in the Rajasthan Patrika, but Moriya did not attend the enquiry. Though, Shri Moriya failed to appear on 7th November, 1914, still, a further opportunity was given to him and the enquiry was kept on 9th November, 1974 and notices were published in the Rajasthan Patrika, dated the November, 1974. In the second enquiry, also, notices were published in the Rajasthan Patrika, but Moriya did not attend the enquiry. In the matter of the another dismissed employee, R. S. Sharma, the Arbitrator observed that notice was issued to Shri Sharma, which was duly received by him, but Shri Sharma did not attend the enquiry. It had to be proceeded ex-parte. For Shri K.L. Punjani, the finding of the Tribunal was that Shri Punjani was informed through notice published in the local news paper to attend the enquiry on 25th Nov. 1974. The enquiry was held along with two others who were also served with similar charges. but none appeared and consequently, the enquiry had to be proceeded ex-parte. For O.P. Sharma, the arbitrator held that be was served with two charge sheets on 23rd Oct, 1974 and 8th Nov, 1974 respectively. The two enquiries were held on two different dates. Notices were served on Shri Sharma through the news-paper published in the Rajasthan Patrika and, he did not participate in the enquiry. For Bhanwar Lal, the Arbitrator recorded a finding that the enquiry notice was sent to him on 19th Nov 1974, which was refused by him. Ultimately, it was published in the Raj Patrika dated 2nd Nov., 1974, but Bhanwar Lal did not participate in the enquiry. Hence, the enquiry was carried on ex-parte- These findings, though, elaborately made by the learned Arbitrator have not been challenged by the petitioner Union in the writ petition. Thus there is no merit in the contention raised by the petitioner Union, that the enquiry was held ex parte illegally. 15. Another question is about the fairness of the enquiry The Arbitrator also considered this aspect of the matter and held that the enquiry was fair. The following findings recorded by the Arbitrator will reflect that the enquiry was fair and ample opportunity was given to charge-sheeted employees : "The management took extraordinary precautions before conducting ex parte enquiry to notify the notices of enquiry by publishing them in the local newspaper. The five workmen, therefore, were already aware of the fact of enquiry which was to be conducted against them. The five workmen, therefore, were already aware of the fact of enquiry which was to be conducted against them. They, however, did not like to associate in the enquiry by their physical presence." 16. At another place, the Arbitrator has observed as follows : "I find that although the management conducted ex parte enquiries, they had taken sufficient precaution in serving charge sheets and notices of enquiry before proceeding ex parte and also recorded evidence of as many people as were supposed to be involved in the incidents." The Arbitrator also recorded the fact that complete record was also passed on by the Management to the Union during the proceedings of arbitration. 17. At another place, the Arbitrator observed as follows : "The enquiry has been conducted in accordance with the Standing Orders of the Company and is also based on principal of natural justice and equity." In the Award, the Arbitrator also recorded a fact that the workers did not ask for enquiry in this ease before the Arbitrator. The above discussion, thus, clearly proves that the allegations of the petitioner Union that the enquiry was not fair or illegally conducted ex parte, is without any substance. 18. We next come to the question of perversity of the finding, as contended by Shri P.K. Sharma, learned counsel for the petitioner Union In this regard. also, we do not find any merit. In the statement of the case submitted by the Union before the Arbitrator. we do not find that there is any assertion that the finding of the Enquiry Officer is perverse. The only ground taken in the statement of claim is that the charges were false, and fabricated and no opportunity to defend was given to the workmen and the termination of the services of the said five workmen violates the principles of natural justice. In the written sub- mission of the Union, which is on record, as Annx. 6, there is undoubtedly a challenge to the finding on the ground that the findings were perverse. But no specific case was made out as to in what manner the enquiry is perverse, From the record, it is clear that the evidence was recorded ex parte and the Enquiry Officer recorded his finding on the basis of the evidence on record. The learned Arbitrator locked into the evidence and held that the charges are properly proved. But no specific case was made out as to in what manner the enquiry is perverse, From the record, it is clear that the evidence was recorded ex parte and the Enquiry Officer recorded his finding on the basis of the evidence on record. The learned Arbitrator locked into the evidence and held that the charges are properly proved. In the writ petition, we do not find any material to prove that the finding of the Enquiry Officer was perverse. The Arbitrator has considered this aspect of the matter and observed as follows : "The third ground taken by the Advocate of the Union is regarding perversity of findings. He alleges that the enquiries were conducted ex parse and even in this position, the Enquiry Officer has not failed to demonstrate his perversity." 19. From this assertion, it only proves that the challenge was only with regard to the fact that the enquiry had proceeded ex parte. In spite of the fact that enquiry papers were handed over to the Union, no case has been made out for perversity. The Enquiry Officer discussed the evidence and the Arbitrator did not find any perversity in the finding. Thus, we are of the opinion that no case is made out for interfering in the finding recorded by the Enquiry Officer and confirmed by the Arbitrator. 20. As regards quantum of punishment, we find that this aspect of the matter was also considered by the Arbitrator. The Arbitrator also took into consideration the objection raised by the Union regarding not taking into account the extenuating circumstances which were necessary for the management in accordance with the Standing Order No. 18 (4). We do not find any force in this contention of the learned counsel for the petitioner Union as the misconducts alleged against the workmen were of serious nature, and merited dismissal. In such circumstances, even if the past record was not seen, it does not help the workmen at all. We, thus, do not find any force in this argument. 21. Shri P.K. Sharma, learned counsel for the petitioner-Union, has raised one more argument during the course of hearing that the action of the management is arbitrary inasmuch as the other employees who were charge- sheeted, were reinstated in service, but the above mentioned five employees were dismissed from service. We, thus, do not find any force in this argument. 21. Shri P.K. Sharma, learned counsel for the petitioner-Union, has raised one more argument during the course of hearing that the action of the management is arbitrary inasmuch as the other employees who were charge- sheeted, were reinstated in service, but the above mentioned five employees were dismissed from service. We do not find any merit in this argument; firstly, this point has not been taken in the writ petition and secondly there are no circumstances as to who are the workmen and whether they were served with the same charges and whether in the enquiry no case was made out against them and therefore, no action was taken against them, or that they were similarly situated. In the absence of proper pleadings, the petitioner cannot be allowed to argue the case, as a plea cannot be allowed to be taken in arguments which involves question of fact to be pleaded and proved 22. In the premises afore said, we do not find any merit in the writ petition and the same is dismissed with no order as to costs.Petition dismissed. *******