Section 42: Voluntary reference of disputes to arbitration

Finin2min analysis — what the section actually does

Full statutory text — Section 42

42. Voluntary reference of disputes to arbitration.—(1) Where any industrial dispute exists or is
apprehended and the employer and the workers agree to refer the dispute to arbitration, they may, by a
written agreement, refer the dispute to arbitration, and the reference shall be to such person or persons
as an arbitrator or arbitrators as may be specified in the arbitration agreement.

   (2) Where an arbitration agreement provides for a reference of the dispute to an even number of
arbitrators, the agreement shall provide for the appointment of another person as umpire who shall enter
upon the reference, if the arbitrators are equally divided in their opinion, and the award of the umpire
shall prevail and shall be deemed to be the arbitration award for the purposes of this Code.
   (3) An arbitration agreement referred to in sub-section (1) shall be in such form and shall be signed
by the parties thereto in such manner as may be prescribed.
   (4) A copy of the arbitration agreement shall be forwarded to the appropriate Government and the
conciliation officer.
    (5) Where an industrial dispute has been referred to arbitration and the appropriate Government is
satisfied that the persons making the reference represent the majority of each party, the appropriate
Government may issue a notification in such manner as may be prescribed; and when any such
notification is issued, the employers and workers who are not parties to the arbitration agreement but
are concerned in the dispute, shall be given an opportunity of presenting their case before the arbitrator
or arbitrators:
   Provided that—
       (i) where such industrial dispute is the industrial dispute other than the termination of individual
   worker by way of discharge, dismissal, retrenchment or otherwise, the workers shall be represented
   before the arbitrator,—
         (a) where there is negotiating union or negotiating council, by the negotiating union or
      negotiating council, as the case may be; or
          (b) where there is no negotiating union or negotiating council, by the Trade Union; or
        (c) where there is no Trade Union, by such representatives of the workers chosen in such
      manner as may be prescribed;
       (ii) where such industrial dispute relates to termination of individual worker by way of discharge,
   dismissal, retrenchment or otherwise, the concerned workers shall be represented in person or
   through a representative authorised by him.
   (6) The arbitrator or arbitrators shall investigate the dispute and submit to the appropriate
Government the arbitration award signed by the arbitrator or all the arbitrators, as the case may be.
    (7) Where an industrial dispute has been referred to arbitration and a notification has been issued
under sub-section (5), the appropriate Government may, by order, prohibit the continuance of any strike
or lock-out in connection with such dispute which may be in existence on the date of the reference.
   (8) Nothing in the Arbitration and Conciliation Act, 1996, shall apply to arbitrations under this
section.
                                               CHAPTER VII
                          MECHANISM FOR RESOLUTION OF INDUSTRIAL DISPUTES

How to apply this provision

1. Primary statutory test — (1) Where any industrial dispute exists or is apprehended and the employer and the workers agree to refer the dispute to arbitration, they may, by a written agreement, refer the dispute to arbitration, and the reference shall be to such person or persons as an arbitrator or arbitrators as may be specified in the arbitration agreement.
2. Additional operative limb — (2) Where an arbitration agreement provides for a reference of the dispute to an even number of arbitrators, the agreement shall provide for the appointment of another person as umpire who shall enter upon the reference, if the arbitrators are equally divided in their opinion, and the award of the umpire shall prevail and shall be deemed to be the arbitration award for the purposes of this Code.
3. Qualification / exception to test — Provided that— (i) where such industrial dispute is the industrial dispute other than the termination of individual worker by way of discharge, dismissal, retrenchment or otherwise, the workers shall be represented before the arbitrator,— (a) where there is negotiating union or negotiating council, by the negotiating union or negotiating council, as the…
4. Central Rule mapping — 20, 21, 22. Read the mapped provision together with this text rather than treating the concordance as a substitute for it.
5. Prescribed-form link recorded in the corpus — V. Confirm the current notified form/version before filing.
6. Evidence file — retain facts and records proving the role/status of: Employer, Worker, Appropriate Government, Trade union.

Rules, forms and cross-references

A direct concordance is not exhaustive. Central/State jurisdiction, schemes, authority appointments, saved instruments and later notifications may change the practical route without changing the section wording.

Worked example

Q&A — Section 42

Source & verification trail