Role of a Conciliator in lieu of Arbitration and Conciliation Act,1996
With regards to the role of the Conciliator which is Section 67, a judgment of the Supreme Court of India it was stated that (albeit in contravention of the provisions in the Legal Services Authorities, Act of 1987 with the provisions linked to Conciliation in Part 3 of the 1996 Act):
The term Conciliation is not defined under the 1987 Act. It should, henceforth, be considered from the vantage point of the Arbitration and Conciliation Act, 1996. To comprehend what the Parliament meant by Conciliation, it is crucial to refer to the exact functions of a Conciliator which has been visualized by Part 3 of the 1996 Act. Section 67 hence describes the role of a conciliator as the following-
Sub Section(1) states that he will assist parties independently and impartially.
Sub Section(2) provides that the Conciliator will primarily be guided by the principles of objectivity, fairness, and justice, giving consideration, among other things, to the rights and obligations of concerned parties, the usages of the trade concerned with and the circumstances which surround the dispute, which will include any prior business practices between the respective parties.
While Sub Section (3) entails that the Conciliator in question will take into account the circumstances of the case, the wishes of all parties as they might express along with requests for oral statements.
Sub Section (4) mainly permits the Conciliator in question to make proposals for a settlement. This incredibly lucrative section is based on Article 7 of UNICTRAL conciliation rules.
The Supreme Court however also subsequently contrasted the role of a "Conciliator" in Part 3 of the 1996 Act, with that of a conciliator under Chapter -V|A of the Legal Services Authorities Act of 1987, and observed that Section 89 of the Code of Civil Procedure inter alia was primarily initially enacted to promote the resolution of disputes through a mutual settlement. While Chapter V|A of the Act, on the other hand, intends to serve a different purpose altogether. This not only alludes to Conciliation qua Conciliation but also conciliation qua determination. Jurisdiction of the Permanent Lok Adalat, while limited is still of a wide ambit. The provisos which were hence appended to Section 22 C of the Act end up curtailing the jurisdiction of the Permanent Lok Adalat which are as under-
It is provided that the permanent Lok Adalat will not have any kind of jurisdiction with respect to any matter related to any kind of offense which is not compoundable under law.
Secondly, it was provided further that the Permanent Lok Adalat shall not have any kind of jurisdiction in matters where the value of a particular disputed property exceeds ten lakh Rupees.
The Supreme Court while on the one hand assimilated the Role of a Conciliator in lieu of Part 3 of the 1996 Act, while assuming the role of an arbitrator,(wherein no settlement will be possible in Conciliation), the Supreme Court ended up distinguishing the role of the permanent Lok Adalat under the aegis of the legal services Authorities Act,1987. In this particular case, the words quoted in the Proviso to Section 22(C)(1) of the Legal Services Authorities Act,1987, were necessarily construed with incredibly broad brushstrokes and hence subsequently it was held that the determination before the Permanent Lok Adalat(in that particular case) mainly involved a question with regards to whether or not an offense" which is compoundable in nature has been committed", it was subsequently held that the case fell outside the jurisdiction of the Permanent Lok Adalat, and therefore the order of the High Court of Jharkhand which upheld the validity of the order was set aside.
Source: Harmony amidst Disharmony: Fali S Nariman