Non compliance of the mandatory provision will vitiate the award.

K. Venkataswami, J.

The question that has been referred to the Full Bench for its decision is whether non-publication of an arbitration agreement as required under Section 10A(3) of the Industrial Disputes Act, 1947, hereinafter called 'the Act' and the non-publication of the eventual award as required under Section 17A of the Act is fatal to the award and therefore not enforceable.

2. In all these cases; it is common ground that the arbitration agreement itself has not been published as required under Section 10A(3) of the Act. In addition to that, it is also the common case that the eventual awards had also not been published.

3. Mr. Vijayanarayanan and Mr. M. R. Narayanaswami appearing in these cases advanced argument requesting the Court to hold that non- publication of the arbitration agreement and the award being fatal to the award it cannot be enforced.

4. On the other hand, Mr. G. Venkataraman of M/s. Iyer and Dolia and Mr. N. G. R. Prasad of M/s. Row and Reddy contended that the non- publication of the arbitration agreement and the award will not render the award void and unenforceable. The requirement of publication according to them is only directory and not mandatory.

5. The counsel on both sides cited various decisions in support of their respective stands. Before expressing our opinion, we consider that it will be beneficial to note down the principles laid down in the decisions cited at the Bar.

6. The first decision cited is reported in Ramakrishna Kulwantrai Steels (P) Ltd v. Their Workmen (1977-I-LLJ 382). A Full Bench of this Court was concerned in that case with a question as to the maintainability or writ petition under Article 226 of the Constitution of India. The argument and the counter-argument advanced before the Full Bench can be advantageously set out to appreciate the decision rendered by the Full Bench in that Case. It reads as follows (p 385)

"It was contended by the learned counsel for the petitioner that the terms of settlement amounted only to an agreement to refer the dispute to arbitration within the meaning of S. 10A. Per contra, the learned counsel for the respondents contended that the parties did not deliberately want to avail themselves of the statutory arbitration under S. 10A but agreed to refer the matter to informal arbitration outside S. 10A and this is clear from the fact that the agreement was not in the form prescribed nor the procedure prescribed under S. 10A was followed. We are unable to agree with the contention of the learned counsel for the respondents. The dispute between the parties related to the payment of bonus and, therefore, it is an industrial dispute. An industrial dispute could be resolved under the Act by a settlement in the course of conciliation proceedings under S. 12(3) or by a settlement arrived at by agreement between the parties otherwise than in the course of conciliation proceedings or by adjudication on a reference under S. 10 or by arbitration by referring the dispute to an arbitrator as provided under S. 10A." *

In the above background, it was argued before the Full Bench that the arbitration agreement entered into was one outside the purview of section 10A and therefore the award ultimately given in that case was not amenable to the writ jurisdiction. In negativing the contention, the Full Bench observed thus (p 386)

"It is thus seen that the memorandum signed on 28-7-1976 complied with all the requirement of S. 10A(1) and (2) of the Act. We are also of the view that an agreement entered into during conciliation proceedings between the management and the workers union regarding an industrial dispute is an agreement, to refer the dispute to arbitration under S.10A for the Act does not contemplate arbitration of an industrial dispute outside S. 10A. In the face of S. 10A(5) excluding the application of Arbitration Act, 1940 to arbitrations under Section 10A, it would be very doubtful whether private agreement in respect of industrial disputes con