"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Thursday, December 18, 2008

SCI Judgements

M.V. UMANG & ORS. v. KAMLA KANT DUBE (DEAD) THR. LRS. CIVIL APPEAL NO. 5191 OF 2002 decided by R.V. RAVEENDRAN & J.M. PANCHAL, JJ. on December 16, 2008.
This is a case relating to claim of additional compensation by an employee. The significant feature of this judgement is that the matter was referred to mediation by the Supreme Court. The parties had settled the matter in Delhi High court Mediation and Conciliation Centre. A settlement agreement was filed by the Delhi High court Mediation and Conciliation Centre before the Supreme Court and the matter was disposed of accordingly. Here, we note a difference between mediation and arbitration, which has the force of a decree by virtue of Section 36 of the Arbitration and Conciliation Act, 1996. Section 36 reads:
Where the time for making an application to set aside the arbitral award under section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of the court.
Even a settlement agreement made before the Conciliator has the force of a decree by the virtue of the following provisions:
74. Status and effect of settlement agreement. -The settlement agreement shall have the same status and effect as if it is an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal under section 30.
30. Settlement. (1) It is not incompatible with an arbitration agreement for an arbitral tribunal
to encourage settlement of the dispute and, with the agreement of the parties; the arbitrat tribunal may use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlement.
(2) If, during, arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.
(3) An arbitral award on agreed terms shall be made in accordance with section 31 and shall state that it is an arbitral award.
(4) An arbitral award on agreed terms shall have the same status and effect as any other arbitral award on the substance of the dispute.
However, the mediated settlement agreement had to be deposited before the court. Why shouldn't a mediated settlement agreement have the same status as a settlement agreement before a conciliator?

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