Chattisgarh High Court
Tata Projects Limited vs M/S Svs And Company on 3 October, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order reserved on 13.9.2023
Order delivered on 03/10/2023
WPC No. 2932 of 2023
• Tata Projects Limited, Through its duly constituted Attorney
Shri Rahul Jadwani, having its registered office at Mithona
Tower-I, 1-7 80-87, Presnershast Road, Secunderabad,
Telegana.
---- Petitioner
Versus
1. M/s SVS & Company Shop No. 2, Nagar Nigam Complex,
Ganj Chowk, Rajnandgaon, District Rajnandgaon (CG)
2. Micro & Small Enterprises Facilitation Council through its
Chairman, Directorate of Industries, Raipur District Raipur
(CG)
---- Respondents
For Petitioner : Mr. Kishore Bhaduri, Sr. Advocate
assisted by Mr. Pankaj Singh, Adv.
For Respondent No.1 : Mr. Rajeev Shrivastava, Sr. Advocate
assisted by Mr. Akshay Shal,
Advocate
SB: Hon’ble Mr. Justice Parth Prateem Sahu
C A V Order
1. Petitioner has filed this writ petition questioning the legality
and sustainability of the judgment / award dated 25.01.2023
passed by the Micro and Small Enterprises Facilitation Council
(for short ‘the Facilitation Council’).
2. Facts relevant for disposal of this petition are that on
26.9.2018 respondent No.1 issued work order in favour of the
petitioner for execution of ‘trenching & ducting (T&D) work of
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Optical Fibre Cable etc. at CG Bharat Net Phase-II project in
the State of Chhattisgarh’. On 20.3.2022 respondent No.1
submitted reference under Section 18 of the Micro, Small and
Medium Enterprises Development Act, 2006 (for short ‘the Act
of 2006’) before the Facilitation Council for realization of
arrears of Rs.4,90,21,423/- along with interest amount of
Rs.68,81,889/-. After receipt of notice of reference, petitioner
submitted reply raising a preliminary objection with regard to
maintainability of reference on the ground that on the date of
award of work, respondent No.1 was not registered as
‘supplier’ under the Act of 2006. By the impugned award, the
Facilitation Council allowed the reference filed under Section
18 of the Act of 2006, which is put to challenge in this writ
petition.
3. Learned Senior Counsel for the petitioner would argue that
date of entering into contract was 26.9.2018, on said date
respondent No.1 was not registered as ‘supplier’ under the
provisions of the Act of 2006. As per documents placed on
record, respondent No.1 was registered as a ‘medium small
micro enterprise’ only on 16.5.2019. As on the date of entering
the contract, respondent No.1 was not registered as ‘micro
and small enterprise’ under the provisions of the Act of 2006,
respondent No.1 is not entitled for benefits as provided under
the Act of 2006. In support of his contention, he referred to
the copy of Udyog Aadhar placed on record at Page No.84 of
writ petition. He next contended that the work contract
awarded to respondent No.1 will not fall within the category of
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manufacturing, supplying or service, but nature of work
awarded to respondent No.1 pursuant to agreement was a
‘work contract’. The work awarded to the petitioner is works
contract i.e. trenching and ducting, and therefore, also the
provisions of the Act of 2006 will not be attracted. It is further
contention of learned Senior Counsel for petitioner that the
Facilitation Council after issuance of notice of proceeding
under Section 18 (2) of the Act of 2006, had passed the
impugned award in the proceeding under Section 18 (2) of the
Act of 2006 itself. The provision under Section 18 (2) of the
Act of 2006 talks of ‘conciliation’. The Facilitation Council has
not initiated proceeding of arbitration invoking provision under
Section 18 (3) of the Act of 2006 recording that conciliation
failed and therefore, award passed by the Facilitation Council
is non-est in the eyes of law. In support of his contention, he
referred to the order sheets recorded by the Facilitation
Council and placed on record along with Covering Memo
dated 7.9.2023.
4. Learned Senior Counsel for respondent No.1 opposing the
submissions of learned Senior Counsel for the petitioner,
would argue that writ petition itself is not maintainable. The
impugned award dated 25.1.2023 is an award and the person
aggrieved by it has to challenge the same in the manner as
provided under the Arbitration and Conciliation Act, 1996
(henceforth ‘the Act of 1996’). In support of his contention, he
referred to the provision under Section 18 of the Act of 2006.
He further submitted that on the date of submission of
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reference under Section 18 of the Act of 2006, respondent
No.1 was registered as ‘medium small micro enterprise’ under
the Act of 2006, which is clearly reflecting from the documents
available in record. The work order was issued on 26.9.2018,
but running invoices towards part of work which respondent
No.1 completed were submitted after the registration of
respondent No.1 under the Act of 2006 and therefore,
submission of learned Senior Counsel for the petitioner that
reference itself was not maintainable for want of registration
under the Act of 2006 is not sustainable. He also contended
that respondent No.1 is entitled for benefits under the Act of
2006 from the date of its registration and in support of his
contention he placed reliance on the decision of Hon’ble
Supreme Court in case of Slippi Industries & another V.
Kerala State Road Transport Corporation & anr., reported
in 2021 SCC Online SC 439.
5. It is also submission of learned Senior Counsel for respondent
No.1 that looking to the nature of work, the Facilitation Council
has rightly considered and entertained application submitted
by the respondent No.1 under Section 18 (1) of the Act of
2006. The Facilitation Council after receipt of application,
issued notice to petitioner, who caused appearance, submitted
reply and only thereafter the award was passed after giving
proper opportunity of hearing to the parties. As the challenge
in this writ petition is to the award passed by the Facilitation
Council, as per law declared by Hon’ble Supreme Court and
the High Courts, a party aggrieved from the award passed by
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the Facilitation Council can challenge the same only as per
procedure laid down under Section 19 of the Act of 2006 read
with Section 34 of the Act of 1996. In support of his contention,
he placed reliance upon the decision in the case of Gujarat
State Civil Supplies Corporation Limited v. Mahakali
Foods Private Limited (Unit 2) & anr, reported in (2022) AIR
(SC) 5545; order of Madras High Court in WP No.34006/2023
(Concast Steel & Power Limited vs. Micro and Small
Enterprises Facilitation Council & others); Eden Exports
Company vs. Union of India & ors, reported in 2013 (1) MLJ
445.
6. Respondent No.1 is duly registered under the Act of 2006 and
was qualified supplier within its meaning under the Act of
2006, hence the impugned award passed is within the four
corners of law. Submission of learned Senior Counsel for the
petitioner that the award is contrary to the provisions of the Act
of 2006 is perverse and baseless. It is also contention of
learned Senior Counsel for respondent No.1 that looking to
the nature of work and all the goods used in execution of
work, were supplied by the petitioner, the work executed by
the petitioner of ‘trenching and ducting (T&D) at CG Bharat
Net Phase-II project’ will not fall within the category of works
contract. In support of his contention, he placed reliance on
the judgment in case of Kone Elevator India Pvt. Ltd. vs.
State of Tamil Nadu, reported in (2014) AIR (SC) 5362 and
Rahul Singh vs. Union of India & ors, reported in 2017 SCC
Online All. 3579. Writ petition is filed only to avoid mandatory
6
pre-deposit of 75% of the award passed as provided under the
Act of 2006, therefore, petitioner be dismissed being not
maintainable in view of availability of efficacious alternate
remedy under the law.
7. At this stage, learned Senior Counsel for the petitioner would
submit that maintainability of writ petition in view of alternate
remedy is not an absolute bar to entertain writ petition under
Article 226 of the Constitution of India. Writ petition can be
entertained under special circumstances as held by the
Hon’ble Supreme Court in case of Magdah Sugar & Energy
Ltd. (supra).
8. I have heard learned counsel for the parties and perused the
documents placed in record of writ petition.
9. To appreciate submissions of learned counsel for respective
parties, I find it appropriate to refer to some of the provisions
of the Act of 2006.
10. Section 2 of the Act of 2006 provides definition of particular
words used in the Act of 2006. Section 2 (d) defines ‘buyer’
which means whosoever buys any good or receives any
service from a supplier for consideration. Section 2 (e)
defines ‘enterprise’ and Section 2 (f) defines ‘goods’ which
means every kind of immovable property other than actionable
claims and money. Section 2 (g) defines ‘medium enterprise’.
Section 2 (h) defines ‘micro enterprise’. Section 2 (m) defines
‘small enterprise’. Section 2 (n) defines ‘supplier’ which
means a micro or small enterprise, which has filed a
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memorandum with the authority referred to in sub-section (1)
of Section 8 and includes,-
“(i) xxxxx
(ii)xxxxx
(iii) any company, co-operative society, trust or body, by
whatever name called, registered or constituted under
any law for the time being in force and engaged in
selling goods produced by micro or small enterprises
and rendering services which are provided by such
enterprise.”
11.Section 7 of the Act of 2006 talks of classification of
enterprise. Section 7 (1) (a) talks of micro enterprise, small
enterprise and medium enterprise. Section 7 (1) (b) talks of
enterprise engaged in rendering / providing service as micro,
small or medium enterprise. Section 8 talks of memorandum
of micro, small and medium enterprise. Under sub-section
((1) (c) of Section 8, a medium enterprise engaged in
manufacture or production shall file memorandum of micro,
small or as the case may be, with the authority as may be
specified by the State Government under sub-section (4) or
the Central Government under sub-section (3) of Section 8 of
the Act of 2006. Section 15 talks of liability of buyer to make
payment where any supplier, supplies any goods or renders
any services to any buyer, provided that in no case the period
agreed upon between the supplier and the buyer shall exceed
forty-five days from the date of acceptance or the day of
deemed acceptance. Section 20 provides for establishment of
micro and small Enterprises Facilitation Council. Section 18
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talks of reference to micro and small enterprises facilitation
council, which is relevant and reproduced herein below:-
“18. Reference to Micro and Small Enterprises
Facilitation Council. –
(1) Notwithstanding anything contained in
any other law for the time being in force, any
party to a dispute may, with regard to any
amount due under section 17, make a
reference to the Micro and Small Enterprises
Facilitation Council.
(2) On receipt of a reference under sub-
section (1), the Council shall either itself
conduct conciliation in the matter or seek the
assistance of any institution or centre
providing alternate dispute resolution
services by making a reference to such an
institution or centre, for conducting
conciliation and the provisions of sections 65
to 81 of the Arbitration and Conciliation Act,
1996 (26 Signature Not Verified Digitally
Signed By:DUSHYANT RAWAL of 1996)
shall apply to such a dispute as if the
conciliation was initiated under Part III of that
Act.
(3) Where the conciliation initiated under
sub-section (2) is not successful and stands
terminated without any settlement between
the parties, the Council shall either itself take
up the dispute for arbitration or refer to it any
institution or centre providing alternate
dispute resolution services for such
arbitration and the provisions of the
Arbitration and Conciliation Act, 1996 (26 of
1996) shall then apply to the dispute as if the
arbitration was in pursuance of an arbitration
agreement referred to in sub-section (1) of
section 7 of that Act.
(4) Notwithstanding anything contained in
any other law for the time being in force, the
Micro and Small Enterprises Facilitation
Council or the centre providing alternate
dispute resolution services shall have
jurisdiction to act as an Arbitrator or
Conciliator under this section in a dispute
between the supplier located within its
jurisdiction and a buyer located anywhere in
India.
(5) Every reference made under this section
shall be decided within a period of ninety
9
days from the date of making such a
reference.”
12. Section 18 (1) of the Act of 2006 starts with non-obstante
clause and provides for making a reference to the Facilitation
Council by any party to a dispute with regard to any amount
due under Section 17 of the Act of 2006. Section 18 (2)
provides the procedure to be adopted by the Facilitation
Council to conduct conciliation in the matter by itself or by
seeking assistance of any institution or centre providing
alternate dispute resolution services by making a reference to
such an institution or centre. Sub-section (3) of Section 18
provides for procedure, when conciliation initiated under sub-
section (2) fails and terminated without any settlement
between the parties, to initiate proceeding of arbitration by
itself or to refer it to any institution or centre.
13.One of the grounds raised in this writ petition is that the
Council without recording that conciliation proceeding failed,
terminating the conciliation proceeding and initiating
proceeding under Section 18 (3) of the Act of 2006, passed
the award under Section 18 (3) of the Act of 2006. Perusal of
the order sheets placed on record would show that the
application was submitted before the Council on 19.4.2022,
application was not complete in itself and after fixing it for
further dates and on fulfilling requirements, application was
registered by the Council n 18.5.2022. Notice was issued on
20.5.2022. Reply submitted by petitioner is taken on note
sheet dated 1.7.2022. Proceeding of 27.12.2022 would show
10
that the matter was fixed for conciliation between the parties,
as provided under Section 18 (2) of the Act of 2006, and
thereafter it was fixed for 25.1.2023. On 25.1.2023 it was
recorded that direction was issued to non-applicant therein for
submission of written arguments and award was passed on
25.1.2023. Perusal of the note sheets would show that though
note sheet records that non-applicant therein was directed to
submit written arguments within a week, reserving the case for
orders but the order/award is passed on 25.1.2023. From the
aforesaid proceedings, as reflecting from the order sheets, it is
apparent that the Facilitation Council has not recorded that the
conciliation proceeding failed and terminated, Council has not
invoked provision under Section 18 (3) of the Act of 2006 and
not initiated proceeding of arbitration. Both the proceedings,
one under Section 18 (2) and another under Section 18 (3),
are different. One is conciliation and other is arbitration. As
per scheme of the Act of 2006, even if conciliation proceeding
is initiated/conducted by the Facilitation Council itself,
however, for the purpose of arbitration proceeding, either the
Facilitation Council itself can initiate proceeding for arbitration
or the matter can be referred to an institution or centre
providing alternate dispute resolution services by making a
reference to such an institution or centre. Provision is clear
that Arbitrator is to be appointed which is not appearing from
the proceedings recorded.
14. In the above facts of the case, it is to be considered whether
writ petition against the impugned award is maintainable or
11
not, in view of alternate remedy available to the petitioner,
particularly when the requirement of invoking alternate remedy
is subject to deposit of 75% of the total award amount?
15. True it is that availability of alternate remedy in itself cannot be
a ground to refuse to entertain writ petition in exercise of
jurisdiction under Article 226 of the Constitution of India.
Ordinarily, if alternate remedy is available, the writ petition is
not to be entertained. In case of Whirlpool Corporation vs.
Registrar of Trademarks, Mumbai & ors reported in (1998)
8 SCC 1 Hon’ble Supreme Court dealing with issue of
maintainability of writ petition in view of availability of alternate
remedy has held that alternative remedy not to operate as a
bar in atleast three contingencies; (i) where writ petition has
been filed for enforcement of any of fundamental rights; (ii)
where there has been a violation of principle of natural justice;
and (iii) where the order or proceeding is absolutely without
jurisdiction or the vires of an Act is challenged.
16. Recently in case of Magadh Sugar (supra), relying on
decision in cases of Harbanslal Sahni v. Indian Oil
Corporation Ltd. reported in (2003) 2 SCC 107 and
Whirlpool Corporation Ltd. (supra), the Hon’ble Supreme
Court has observed thus:-
“25. While a High Court would normally not exercise its
writ jurisdiction under Article 226 of the Constitution if
an effective and efficacious alternate remedy is
available, the existence of an alternate remedy does not
12by itself bar the High Court from exercising its
jurisdiction in certain contingencies. This principle has
been crystallized by this Court in Whirlpool Corporation
v. Registrar of Trademarks, Mumbai 19 and Harbanslal
Sahni v. Indian Oil Corporation Ltd. 20. Recently, in
Radha Krishan Industries v. State of Himachal Pradesh
& ors21 a two judge Bench of this Court of which one of
us was a part of (Justice DY Chandrachud) has
summarized the principles governing the exercise of
writ jurisdiction by the High Court in the presence of an
alternate remedy. This Court has observed:
“28. The principles of law which emerge are that:
(i) The power under Article 226 of the Constitution
to issue writs can be exercised not only for the
enforcement of fundamental rights, but for any other
purpose as well;
(ii) The High Court has the discretion not to
entertain a writ petition. One of the restrictions
placed on the power of the High Court is where an
effective alternate remedy is available to the
aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise
where (a) the writ petition has been filed for the
enforcement of a fundamental right protected by
Part III of the Constitution; (b) there has been a
violation of the principles of natural justice; (c) the
order or proceedings are wholly without jurisdiction;
or (d) the vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the
High Court of its powers under Article 226 of the
Constitution in an appropriate case though
ordinarily, a writ petition should not be entertained
when an efficacious alternate remedy is provided by
law;
(v) When a right is created by a statute, which itself
prescribes the remedy or procedure for enforcing
the right or liability, resort must be had to that
particular statutory remedy before invoking the
discretionary remedy under Article 226 of the
Constitution. This rule of exhaustion of statutory
remedies is a rule of policy, convenience and
discretion; and
(vi) In cases where there are disputed questions of
fact, the High Court may decide to decline
jurisdiction in a writ petition. However, if the High
13Court is objectively of the view that the nature of the
controversy requires the exercise of its writ
jurisdiction, such a view would not readily be
interfered with.” (emphasis supplied)”
26.The principle of alternate remedies and its
exceptions was also reiterated recently in the decision in
Assistant Commissioner of State Tax v. M/s Commercial
Steel Limited22. In State of HP vs. Gujarat Ambuja
Cement Ltd.23 this Court has held that a writ petition is
maintainable before the High Court if the taxing
authorities have acted beyond the scope of their
jurisdiction. This Court observed:
“23.Where under a statute there is an allegation
of infringement of fundamental rights or when
on the undisputed facts the taxing authorities
are shown to have assumed jurisdiction which
they do not possess can be the grounds on
which the writ petitions can be entertained. But
normally, the High Court should not entertain
writ petitions unless it is shown that there is
something more in a case, something going to
the root of the jurisdiction of the officer,
something which would show that it would be a
case of palpable injustice to the writ petitioner to
force him to adopt the remedies provided by the
statute. It was noted by this Court in L. Hirday
Narain v. ITO [(1970) 2 SCC 355: AIR 1971 SC
33] that if the High Court had entertained a
petition despite availability of alternative remedy
and heard the parties on merits it would be
ordinarily unjustifiable for the High Court to
dismiss the same on the ground of non-
exhaustion of statutory remedies;”
17.In the case at hand, reference is made under Section 18 of the
Act of 2006. Notice was initially issued to petitioner under
Section 18 (2) for conducting conciliation, for which, as
provided under the Act of 2006, the provisions contained in
Sections 65 to 81 of the Act of 1996 shall apply. Section 18
(3) of the Act of 2002 talks of procedure for arbitration either
by Facilitation Council itself or by making a reference to any
institution or centre after recording conciliation proceeding
14
under Section 18 (2) to be not successful and terminated. No
such proceeding, as required for invoking provision under
Section 18 (3) of the Act of 2006, is recorded by the
Facilitation Council . There is no proceeding recorded by the
Facilitation Council that upon termination of conciliation
proceeding, further proceeding under sub-section (3) of
Section 18 of the Act of 2006 for arbitration by itself is initiated,
asking applicant therein to submit claim.
18.For the proceeding under sub-section (3) of Section 18, the
provisions under the Act of 1996 shall apply as if arbitration
was in pursuance of an arbitration agreement. From the
language used under sub-section (3) of Section 18 of the Act
of 2006, it is apt clear that the Arbitrator is to be appointed and
before whom there must be a statement of claim, reply to
statement of claim and further procedure to be adopted to
prove the claim as provided under the Act of 1996. No such
procedure is adopted by the Facilitation Council in case at
hand, which would lead to conclusion that the award passed
by the Facilitation Council is in violation of principles of natural
justice.
19. In case of Jharkhand Urja Vikas Nigam Ltd. vs. State of
Rajasthan & ors, 2021 SCC Online SC 1257, the issue for
consideration was that notice was issued by the Facilitation
Council for appearance of non-applicant therein, on the first
date of non-appearance of non-applicant therein, the order
was passed directing non-applicant to make payment within
15
the time prescribed. Said order was put to challenge in writ
petition which came to be dismissed as also intra court appeal
was also dismissed. The Hon’ble Supreme Court has
observed thus;-
“9. Only on the ground that even after receipt of
summons the appellant has not appeared the
Council has passed order/award on 06.08.2012. As
per Section 18(3) of the MSMED Act, if conciliations
is not successful, the said proceedings stand
terminated and thereafter Council is empowered to
take up the dispute for arbitration on its own or refer
to any other institution. The said Section itself makes
it clear that when the arbitration is initiated all the
provisions of the Arbitration and Conciliation Act,
1996 will apply, as if arbitration was in pursuance of
an arbitration agreement referred under sub-section
(1) of Section 7 of the said Act.
11. From a reading of Section 18 (2) and 18 (3) of
the MSMED act it is clear that the Council is obliged
to conduct conciliation for which the provisions of
Section 65 to 81 of the Arbitration and Conciliation
Act, 1996 would apply, as if the conciliation was
initiated under Part III of the said Act. Under Section
18 (3), when conciliations fails and stands
terminated, the dispute between the parties can be
resolved by arbitration. The Council is empowered
either to take up arbitration on its own or to refer the
arbitration proceedings to any institution as specified
in the said Section. It is open to the Council to
arbitrate and pass an award, after following the
procedure under the relevant provisions of the
Arbitration and Conciliation Act, 1996, particularly
Section 20, 23, 24,25.”
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12.There is a fundamental difference between
conciliation and arbitration. In conciliation the
conciliator assists the parties to arrive at an amicable
settlement, in an impartial and independent manner.
In arbitration, the Arbitral Tribunal/arbitrator
adjudicates the disputes between the parties. The
claim has to be proved before the arbitrator, if
necessary, by adducing evidence, even though the
rules of the Civil Procedure Code or the Indian
Evidence Act may not apply. Unless otherwise
agreed, oral hearings are to be held.”
15.The order dated 06.08.2012 is a nullity and runs
contrary not only to the provisions of MSMED Act but
contrary to various mandatory provisions of
Arbitration and Conciliation Act, 1996. The order
dated 06.08.2012 is patently illegal. There is no
arbitral award in the eye of law. It is true that under
the scheme of the Arbitration and Conciliation Act,
1996an arbitral award can only be questioned by
way of application under Section 34 of the Arbitration
and Conciliation Act, 1996. At the same time when
an order is passed without recourse to arbitration
and in utter disregard to the provisions of Arbitration
and Conciliation Act, 1996, Section 34 of the said Act
will not apply. We reject this appeal only on the
ground that appellant has not availed the remedy
under Section 34 of the Arbitration and Conciliation
Act, 1996. The submission of the learned senior
counsel appearing for the 3rdrespondent that there
was delay and laches in filing writ petition also
cannot be accepted. After 06.08.2012 order, the
appellant after verification of the records has paid an
amount of Rs.64,43,488/-on 22.01.2013 and the said
amount was received by the 3rdrespondent without
any protest. Three years thereafter it made an
17
attempt to execute the order in Execution Case
No.69 of 2016 before the Civil Judge, Ranchi, which
ultimately ended in dismissal for want of territorial
jurisdiction, vide order dated 31.01.2017. Thereafter
S.B. Civil Writ Petition No.11657 of 2017 was filed
questioning the order dated 06.08.2012 before the
Rajasthan High Court. In that view of the matter it
cannot be said that there was abnormal delay and
laches on the part of the appellant in approaching
the High Court. As much as the 3rdrespondent has
already received an amount of Rs.63,43,488/-paid by
the appellant, without any protest and demur, it
cannot be said that the appellant lost its right to
question the order dated 06.08.2012. Though the
learned counsel appearing for the respondents have
placed reliance on certain judgments to support their
case,but as the order of 06.08.2012 was passed
contrary to Section 18(3) of the MSMED Act the
mandatory provisions of the Arbitration and
Conciliation Act, 1996,we are of the view that such
judgments would not render any assistance to
support their case.”
20. In the aforesaid decision the Hon’ble Supreme Court has
observed that there is difference between conciliation and
arbitration. The Conciliator assists the parties to arrive at an
amicable settlement, whereas in arbitration, the Arbitral
Tribunal/Arbitrator adjudicates upon the dispute between the
parties and the claim is to be proved before the Arbitrator, if
necessary, by adducing evidence. Such a proceeding in the
instant case was not drawn by the Facilitation Council and
therefore, it attracts one of the exceptions carved out by the
Hon’ble Supreme Court for entertaining writ petition under
18
Article 226 of the Constitution of India despite availability of
alternate remedy under the law to petitioner.
21. In view of above discussions, I do not find any force in the
submission of learned Senior Counsel for respondent No.1
that writ petition is not maintainable in view of availability of
alternate remedy, and the same is hereby turned down.
22. As the procedure provided under the Act of 2006 has not been
followed by the Council, in the opinion of this Court, writ
petition can be allowed only on that ground as the impugned
award dated 25.1.2023 is passed in contravention of provision
of Rule 18 (3) of the Act of 2006 and various provisions under
the Act of 1996. The Council after recording the outcome of
the proceedings under Section 18 (2) of the Act of 2006 may
proceed further as provided under Section 18 (3) of the Act of
2006.
23. Order sheet of the Facilitation Council dated 4.12.2022 would
show that the petitioner after his appearance on notice under
Section 18 (2) of the Act of 2006 submitted objection. The
Facilitation Council granted time to respondent No.1 to file
reply to the objection of petitioner and fixed the matter on
27.12.2022. On the said date, without deciding the objection
by speaking order, directed the parties for conciliation and
fixed the next date as 25.1.2023. The Facilitation Council has
not decided the objection raised by the petitioner, to which it
was under obligation to decide the same, because if the
objection is dismissed/rejected then the Objector will have an
19
opportunity to challenge the same before appropriate
authority. By not deciding the objection also the Facilitation
Council acted arbitrarily. The Facilitation Council has also not
recorded that the conciliation failed and the proceeding under
Section18 (2) is terminated for proceeding further which is
mandatory under the Act of 2006 and therefore, I am not
dealing with two other grounds raised by petitioner on the
jurisdiction of the Facilitation Council to entertain the
application under Section 18 of the Act of 2006 because the
Facilitation Council has yet to decide such objection raised by
petitioner on his first appearance.
24. For the foregoing reasons, writ petition is allowed. Impugned
award dated 25.1.2023 is hereby set aside. Matter is remitted
back to the Council to consider and decide the matter as per
provisions of the Act of 2006 from the stage of proceedings
under Section 18(2) of the Act of 2006.
25. The Facilitation Council before proceeding further shall decide
the preliminary objection raised by petitioner to the proceeding
under Section 18 (2) of the Act of 2006.
Sd/-
(Parth Prateem Sahu)
Judge
roshan/-
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