Delhi District Court
National Pension System Trust vs Munish Malik And Anr on 18 November, 2024
IN THE COURT OF SH. SANDEEP YADAV,
DISTRICT JUDGE (COMMERCIAL)-03, SOUTH,
SAKET COURTS, NEW DELHI
OMP (Comm) 54/2022
CNR NO. : DLST010097302022
National Pension System Trust
14th Floor, IFCI Tower
61, Nehru Place
New Delhi-110019
..... Petitioner
Versus
1. Munish Malik
D-202, Jal Vihar, Sector-77
Faridabad-121004
..... Respondent no.1.
2. Pension Fund Regulatory and Development Authority
B-14/A, Chatrapati Shivaji Bhawan
Qutub Institutional Area, Katwaria Sarai
New Delhi. ..... Respondent no 2.
Date of institution of suit : 16.11.2022
Date of reserving judgment : 19.10.2024
Date of pronouncement : 18.11.2024
JUDGMENT
1. Petitioner National Pension System Trust (NPST) objects to the award dated 08.03.2022 and final award dated 05.08.2022 passed by the Arbitral Tribunal in this petition under Section 34 of Arbitration & Conciliation Act.
OMP (Comm) 54/2022 1/20NPST Vs. Munish Malik & Ors.
2. Facts of the case relevant for disposal of objections and as noted by the Arbitral Tribunal are as under :-
3. Pension Fund Regulatory & Development Authority (PFRDA) (respondent no. 2) published an advertisement inviting applications from eligible candidates for the position of C.E.O. for National Pension System Trust (petitioner herein) (arrayed as respondent no. 2 before the Arbitral Tribunal) for a period of five years extendable further subject to the efficiency and competence of the candidate. Respondent no. 1 Munish Malik amongst others applied for this position. After thorough screening and extensive interview, respondent no. 1 was selected for the post of C.E.O. of National Pension System Trust on 29.05.2018. Subsequent to the offer letter dated 29.05.2018, an agreement was entered into between respondent no. 1 and PFRDA on 04.09.2018 for engaging the respondent as C.E.O. of National Pension System Trust. The employment of respondent was subject to the terms and conditions of the contract dated 04.09.2018. Respondent no. 1 contended before the Arbitral Tribunal that he worked in that capacity to the complete satisfaction of petitioner as well as National Pension System Trust and to the best of his ability.
4. National Pension System Trust and Pension Fund Regulatory & Development Authority in their separate statements of defence alleged that respondent no. 1 was a contractual employee of National Pension System Trust and his tenure was for a period of five years from the date of his appointment unless terminated earlier besides the performance of assigned tasks being satisfactory which was the essence of the said contract, failing which the said contract was liable to be terminated by the petitioner. It is OMP (Comm) 54/2022 2/20 NPST Vs. Munish Malik & Ors.
further stated in the statement of defence that the performance of the respondent no. 1 was being continuously monitored by the board of National Pension System Trust to whom respondent no. 1 was directly reporting during his tenure. It was further alleged that performance of the respondent no. 1 was not upto the mark since his joining as the respondent no. 1 was irresponsible while discharging his duties for National Pension System Trust and that several operational issues had crippled the functioning of National Pension System Trust which were highlighted to respondent no. 1 but to no avail. Respondent no.1 did not make the office operational during lockdown period and he did not care to attend the office even though a curfew pass was arranged for him. It was further stated that in statement of defence that on 06.05.2020 a meeting of the Trustees of National Pension System Trust and the officials of Pension Fund Regulatory & Development Authority was held over video conferencing presided by the chairman of Pension Fund Regulatory & Development Authority and it was decided that performance appraisal of respondent no. 1 was required to be conducted by the chairman of National Pension System Trust for submitting it to the Pension Fund Regulatory & Development Authority and it was resolved that the response of respondent no. 1 during Covid-19 pandemic time was far from encouraging and not appreciated by Pension Fund Regulatory & Development Authority. It is further stated that the chairman of National Pension System Trust shared the Annual Performance Appraisal and Report (APAR) for the financial year 2018-2019 and those of 2019-2020 with respondent no. 1 for filing up the self assessment for onward submission to Mr. Ashwin Parikh, Ex- chairman of National Pension System Trust as it was categorically clarified that Mr. Ashwin Parikh shall be the apprising authority for respondent no.
OMP (Comm) 54/2022 3/20NPST Vs. Munish Malik & Ors.
1, he being the Chairman for the year 2018-2019 and for the year 2019- 2020. Mr. Ashwin Parikh provided his inputs on 16.05.2020 with respect to performance appraisal of respondent no. 1. On 21.05.2020 respondent no. 1 on his own submitted APAR to the Chairman through Email. On 21.08.2020 a special meeting amongst the trustees of the National Pension System Trust was held for assessing the performance of respondent no. 1 and after due deliberations, the trustees agreed and resolved that continuation of respondent no. 1 as the CEO of National Pension System Trust was not in the best interest of Pension Policy Holders and on 23.08.2020 meeting of the Board of Trustees was held and minutes were forwarded to the chairman of Pension Fund Regulatory & Development Authority and on 27.08.2020 in the board meeting of Pension Fund Regulatory & Development Authority it was resolved that services of respondent no. 1 being terminated with immediate effect after giving three months salary and subsequently on 11.09.2020 a letter terminating respondent no. 1's employment contract was issued by Pension Fund Regulatory & Development Authority. Case of petitioner is that termination of service of respondent no. 1 was in consonance with the terms and conditions of employment.
5. I have heard Mr. Dattatray Vyas, ld. Counsel for petitioner & respondent no. 2 as well as respondent no. 1, at length and considered the rival submissions.
6. Mr. Dattatray Vyas, ld. Counsel for petitioner, filed written submissions and relied upon following judgments: -
OMP (Comm) 54/2022 4/20NPST Vs. Munish Malik & Ors.
(i) (1991) 1 SCC 533 - Indian Oil Corporation Vs. Amritsar Gas Services & Ors.
(ii) RFA No. 180/2004 - Pawan Kumar Dalmia Vs. M/s. HCL Infosystems Ltd. & Ors. decided by Hon'ble High Court of Delhi on 13.03.2012.
(iii) CS (OS) No. 393/2010 - Shree Naresh Kumar Vs. Shri Hiroshi
(iv) (1994) 1 SCC - S.P. Chengalvaraya Naidu (dead) by LRs Vs. Jagannath (dead) by LRs and Others.
(v) (2011) 7 SCC 69 - Amar Singh Vs. Union of India and Others.
(vi) (2010) 2 SCC 114 - Dalip Singh Vs. State of Uttar Pradesh & Ors.
(vii) (2015) 3 SCC 49 - Associate Builders Vs. Delhi Development Authority.
(viii) 1992 Supp (2) SCC 312 - H.B. Gandhi, Excise and Taxation Officer cum Assessing Authority, Karnal & Ors.
(ix) 1957 SCC Online SC 29 - S.S. Shetty Vs. Bharat Nidhi Ltd.
(x) RFA No. 556/2002 - Shri Satya Narain Garg through is Legal Heirs Vs. DCM Ltd. & Ors. decided by Hon'ble High Court of Delhi on 05.12.2011
(xi) 2015 (4) SCC 136 - Kailash Nath Associates Vs. Delhi Development Authority & Anr.
(xii) (2014) 9 SCC 263 - Oil and Natural Gas Corporation Ltd. Vs. Western GECO International Limited.
(xiii) Civil Appeal No. 1968 of 2012 (SC) - Baltibio Environment Engineers Ltd. Vs. Hindustan Patroleum Corporation Ltd. & Anr.
(xiv) Curative Petition ( C) No. 108-109 of 2022 (SC) - Delhi Metro Rail Corporation Ltd. Vs. Delhi Airport Metro Express Pvt. Ltd.
(xv) 2006 (89) DRJ 702 - Thermospares India Vs. BHEL & Ors.
7. Respondent no. 1 Munish Malik submitted that petitioner has placed on record incomplete arbitral record and petition under Section 34 of Arbitration & Conciliation Act cannot be decided on the basis of incomplete record. In this regard, it is pertinent to mention here that despite various notices to ld. Arbitrator, original arbitral record was not produced OMP (Comm) 54/2022 5/20 NPST Vs. Munish Malik & Ors.
before the Court. Thereafter, petitioner was directed to placed on record the arbitral record. Petitioner produced the arbitral record and ld. Counsel for petitioner submitted that whatever record was available with the petitioner, same has been produced before the Court.
8. Respondent no. 1 submitted that it is not the complete arbitral record. At that time, the Court observed that Court will take up this issue at the time of final adjudication of the matter. After going through the file and impugned arbitral award, it was found that same is sufficient for adjudication of present petition under Section 34 of Arbitration & Conciliation Act. Accordingly, the petition is being taken up for disposal.
9. Following issues were framed by the Arbitral Tribunal:-
(i) Whether the claim is by virtue of Section 14 (D) Specific Relief (Amendment) Act, 2018.
(ii) Whether the special meeting of the trustees held on 21.08.2020 was valid and its effect ?
(iii) Whether there was breach of contract and whether due procedure was followed while terminating the services of the claimant ?
(iv) Whether the DOPT Guidelines dated 09.08.2020 reference NO.B/50001/Policy/MIS(CIV) are applicable to the respondents?
(v) Whether the respondent no.2 is a necessary party to the contract?
OMP (Comm) 54/2022 6/20NPST Vs. Munish Malik & Ors.
(vi) Whether due procedure was followed while reporting and reviewing the APAR Forms of the claimants while assessing his performance, if not, whether the respondent no.1 chairman arbitrarily assumed the power of the reviewing officer?
(vii) Whether the respondents following the NPST Regulations 10(5)?
(viii) Issue 8 deleted
(ix) Whether the claimant can question the letters dated 14.07.2020 and 10.08.2020?
(x) Relief.
10. Award dated 08.03.2022 and final award dated 05.08.2022 are challenged mainly on the following grounds: -
(i) The impugned award is in conflict with public policy of India in as much as it is in contravention with the fundamental policy of Indian law.
(ii) The impugned award is contrary to express terms of contract between the parties which was overlooked by the Arbitral Tribunal.
(iii) The Arbitral Tribunal failed to appreciate that employment of respondent no. 1 with petitioner was purely contractual and the said contract was determinable by giving three months' notice by either party under clause 2 (viii) of the agreement. Thus, the claim of respondent no. 1 was barred by Section 14 (d) of Specific Relief (Amendment) Act 2018.OMP (Comm) 54/2022 7/20
NPST Vs. Munish Malik & Ors.
(iv) The Arbitral Tribunal fell in error by allowing the claim in respect of leave encashment, mental harassment, loss of reputation in the absence of any documents whatsoever in support of said claims.
(v) The Arbitral Tribunal knowing fully well that respondent no. 1 had found an alternate employment, ought to have applied the doctrine of mitigation of damages and could not have awarded any amount as damages without examining the same.
(vi) The Arbitral Tribunal despite noticing the fact that respondent no. 1 has withheld and concealed the material facts that he was gainfully employed within three months of his termination gave an award in his favour.
(vii) The Arbitral Tribunal acted in contravention of Section 28 (3) of the Arbitration & Conciliation Act in sofar as it failed to decide in accordance with the terms of contract, but also ignored the absence of vital evidence in arriving at its decision.
11. The Arbitral Tribunal ultimately made the award to the effect that respondent no. 1 shall be entitled to basic pay and dearness allowances from 12.09.2020 to 27.06.2023 and shall further be entitled to Rs. 9,85,108/- towards leave encashment and further a sum of Rs. 10 lacs for mental harassment besides a sum of Rs. 10 lacs towards legal expenses. This initial award was made on 08.03.2022. This award was modified and final award was made on 05.08.2022 holding that basic salary and dearness allowances of respondent no. 1 comes to Rs. 2,79,563/- per month which OMP (Comm) 54/2022 8/20 NPST Vs. Munish Malik & Ors.
respondent no. 1 is entitled to get from 12.09.2020 to 17.06.2023 amounting to Rs. 92,95,470/- which shall form part of award made on 08.03.2022 including other claims given in his favour, thus, making the award for a total sum of Rs. 1,22,80,578/- and it was held that respondent no. 1 is entitled to this amount.
12. Mr. Dattatray Vyas, ld. Counsel for petitioner and respondent no. 2, submitted that petitioner is mainly aggrieved by the findings of the Arbitral Tribunal on issue no. 1, 2, 3, 4, 6, 7 & 9.
13. While deciding issue no. 1, as framed above, the Arbitral Tribunal concluded that provisions of Specific Relief Act cannot be invoked in the present case as respondent no. 1 has not sought any performance of specific relief under Specific Relief Act and his claim primarily rests on damages for his illegal termination by a authority which is a statutory authority governed by statutory rules. No fault can be found with the aforesaid findings of the Arbitral Tribunal as in the prayer clause in statement of claim respondent no. 1 sought the following relief(s):-
(a) Declare the Claimant's APAR for FYs 2018-19 and 2019-20 null and void.
(b) Direct respondent no. 1 to pay a sum of Rs. 2,50,00,000/- which is due and payable by respondent no. 1 herein as mentioned at paragraph no. 14 hereinabove, together with interest rate at 24 % p.a.
(c) Cost of arbitration.OMP (Comm) 54/2022 9/20
NPST Vs. Munish Malik & Ors.
14. Mr. Dattatray Vyas, ld. Counsel for petitioner, relied upon RFA No. 180/2004 - Pawan Kumar Dalmia Vs. M/s. HCL Infosystems Ltd. & Ors. In this case it was held as under : -
" As per Section 14(1)(c) of the Specific Relief Act, 1963, contracts which are in their nature determinable cannot be specifically enforced. Though the reliefs which have been claimed in the suit are for recovery of monies, effectively, the reliefs if granted would mean continuation of employment of Sh. Pawan Kumar Dalmia even though the defendant no.1/respondent no.1-company has pleaded that his services were terminated. Since the services could be determined by a two months ‟ notice period or a two months‟ pay, the subject suits in fact which effectively seek continuation of employment or re-employment would be barred by Section 14(1)(c) of the Specific Relief Act, 1963."
15. In the aforesaid case relied upon by ld. Counsel for petitioner, plaintiff claimed in suit that his services were not terminated by defendant but continued to be in the employment with defendant. In the present case, there is no dispute about the fact that services of respondent no. 1 were terminated and hence, the facts of the case are distinguishable.
16. It is clear from the bare perusal of aforesaid prayer clause that respondent no. 1 was mainly emphasizing on payment of compensation and not at all seeking specific performance of contract entered into between petitioner and respondent no.1.
17. The Arbitral Tribunal decided issue no. 2 as mentioned above holding that minutes of meeting needs to be signed and confirmed particularly when sensitive issues like in the present case are being taken in that meeting.
OMP (Comm) 54/2022 10/20NPST Vs. Munish Malik & Ors.
18. Mr. Dattatray Vyas, ld. Counsel for petitioner, submitted that there was no need to frame issue no. 2. It is further argued that reasoning in para 10 of award which deals with issue no. 2 is flawed. When a meeting is conducted to decide an important issue like appraisal of performance of senior employee/officer, same needs to be signed and confirmed.
19. While deciding this issue, ld. Arbitrator referred to 2014 (6) BOMCR 577 - Ratneshwar & Ors. Vs. Manmathapa wherein it was held that minutes of meeting were recorded to safeguard against future disputes. The contention of petitioner that meeting was held at the time of Covid 19 and it was not conducive for physical meeting and same was held through video conference, does not hold water as minutes of meeting could have been sent to concerned members of the committee through courier or any other mode for signatures. Since this procedure was not followed, the special meeting conducted on 21.08.2020 cannot be considered to be authentic. Thus, the findings of the Arbitral Tribunal on issue no. 2 are upheld.
20. While deciding issue no. 3, the Arbitral Tribunal observed that petitioner was fully aware that tenure of services of respondent no. 1 was for a period of five years from the date of his appointment unless terminated earlier and the performance of assigned tasks satisfactorily within stipulated time by respondent no. 1 was the essence of said contract, failing which the said contract was liable to be terminated by petitioner. It was further held by the Arbitral Tribunal that termination of services of OMP (Comm) 54/2022 11/20 NPST Vs. Munish Malik & Ors.
respondent no. 1 could not take place unless his work was found dissatisfactory which was the essence of said contract.
21. The aforesaid findings/observations of the Arbitral Tribunal are beyond the terms of contract entered into between the parties. According to clause 2 of the contact, terms and conditions mentioned in offer of appointment dated 29.05.2018 shall form part of this contract. It is laid down in clause 4 of offer of appointment letter dated 29.05.2018 issued by petitioner to respondent no. 1 that terms of contract will be initially for a period of five years, extendable thereafter subject to satisfactory review. The contract could be terminated by either side by giving three months notice. It is clear from the bare reading of clause 4 of offer of appointment that performance of respondent no. 1 was a factor to be taken into consideration for extension of contract beyond the period of five years and not for termination of contract within five years. The only requirement was that contract can be terminated by either side by giving three months notice. In CS (OS) No. 393/2010 - Naresh Kumar Vs. Hiroshi Maniwa & Ors. decided by Hon'ble High Court of Delhi on 05.11.2015 it was held that contract of employment which provides termination of services by one month's notice, then, at best the employee will only be entitled to one month's pay in terms of the employment contract. In this case, clause 17 (a) of appointment letter of plaintiff reads as under : -
"Termination:
"Your employment hereunder may be terminated as per Company Policy:OMP (Comm) 54/2022 12/20
NPST Vs. Munish Malik & Ors.
(a) by either party hereto giving the other three (3) months' notice in writing of termination, or by paying to the other party three (3) months' salary in lieu of such notice."
22. In the present case, there was no provision for payment of three months salary in lieu of termination of services. Hence, services of respondent no. 1 could not have been terminated by just giving three months salary.
23. The Arbitral Tribunal decided issue no. 3 holding that due procedure was not followed by petitioner while terminating the services of claimant/respondent no.1. In the considered opinion of this Court, issue no. 3 was decided rightly by the Arbitral Tribunal albeit on wrong ground.
24. According to clause 8 of contract between the parties, the contract may be terminated by either party to it by giving three months notice without assigning any reason. Admittedly, in the present case no notice was given by petitioner to respondent no. 1 while terminating his services. Rather, three months salary was given to respondent no. 1 in lieu of notice. This in the considered opinion of this Court was not in due compliance of clause 8 of the contract. When the contract provides for giving of three months notice and there was no option in the said clause for payment of salary in lieu of notice, services of respondent no. 1 could not have been terminated by giving three months salary in lieu of notice. Hence, the obvious conclusion is that there was breach of contract and due procedure was not followed while terminating the services of respondent no.1.
OMP (Comm) 54/2022 13/20NPST Vs. Munish Malik & Ors.
25. Coming to issue no. 4, it may be stated that there was no need to give the finding that principle of natural justice must have been applied by petitioner while dealing with service conditions of respondent no.1. The Arbitral Tribunal was only required to decide whether DoPT guidelines are applicable to respondent or not. Even otherwise, it is a settled law that public policy principles or administrative law principles do not apply to private employment. It was so held in RFA No. 556/2002 - Shri Satya Narain Garg through is Legal Heirs Vs. DCM Ltd. & Ors. decided by Hon'ble High Court of Delhi on 05.12.2011 and in another case titled as Binny Ltd. & Anr. Vs. V. Sadasivan & Ors. (2005) 6 SCC 657. In Shri Satya Narain Garg (supra) it was held that employment in private sector is governed by the terms and conditions of employment, and unless the termination is shown to be violation of the terms and conditions of employment, it cannot be said that the termination is illegal.
26. In-fact, issue no. 4 was not clearly decided by the Arbitral Tribunal. The words 'while assuming the DOPT rules did not apply to respondent no. 1' are used in the award. Once, the issue whether of fact or of law has been framed by the Arbitral Tribunal, same must be decided by definite finding.
27. Mr. Dattatray Vyas, ld. Counsel for petitioner, submitted that he is not challenging the findings of the Arbitral Tribunal on issue no. 5.
28. There is no need to discuss the findings of the Arbitral Tribunal on issue no. 6 & 7 as same are dealt with by this Court while deciding whether findings on issue no. 3 of the Arbitral Tribunal can be upheld or not.
OMP (Comm) 54/2022 14/20NPST Vs. Munish Malik & Ors.
29. Issue no. 8 was deleted with the consent of both parties.
30. Findings given by the Arbitral Tribunal on issue no. 9 is not germane to the main issue and same need not be discussed.
31. Respondent no. 1 claimed a sum of Rs. 1,78,72,855/- towards salary for the period from 12.09.2020 to 17.06.2023, leave encashment to the tune of Rs. 9,85,108/-, gratuity for five years to the tune of Rs. 9,19,332/- and further a sum of Rs. 37,22,705/- towards mental harassment, loss of reputation besides legal expenses of Rs. 15 lacs. Thus claiming a total sum of Rs. 2,50,00,000/- alongwith interest @ 24 % per annum
32. While deciding the relief to be granted to respondent under issue no. 10, the Arbitral Tribunal held that respondent shall be entitled to basic pay alongwith dearer allowance from September 2020 to June 2023. The Arbitral Tribunal awarded a sum of Rs. 9,85,108/- on account of leave encashment, a sum of Rs. 10 lacs was further awarded by ld. Arbitrator on account of mental harassment. The Arbitral Tribunal also awarded a sum of Rs. 10 lacs as legal expenses. Subsequently, final award was passed as discussed above.
33. It has already been held that there was breach of contract and due process was not followed by petitioner while terminating the services of respondent no. 1. The question which now arises is as to whether respondent no. 1 was entitled to any damages on account of wrongful termination of his services. In order to succeed in any claim for damages OMP (Comm) 54/2022 15/20 NPST Vs. Munish Malik & Ors.
for breach of contract, respondent no. 1 has to furnish proof of loss suffered by him on account of breach of contract.
34. In 2015 (4) SCC 136 - Kailash Nath Associates Vs. Delhi Development Authority & Anr. it was held that since Section 74 awards reasonable compensation for damage or loss caused by a breach of contract, damage or loss caused is a sign qua non for the applicability of the section.
35. In the present case, it is observed in the impugned award that claimant was no longer employed after August 2020. It is mentioned in the affidavit of petitioner before the Arbitral Tribunal that respondent no. 1 was employed with National Sanskriti University since 2021 as Finance Officer and this fact was not denied by respondent no. 1. If respondent no. 1 was employed since March 2021, he could, at the most, have been awarded compensation from September 2020 to February 2021. One fails to understand as to how respondent was awarded basic pay and dearness allowance from September 2020 to June 2023 when he was gainfully employed since March 2021.
36. In S.S. Shetty (supra), it was held that a servant who has been wrongfully dismissed must use diligence to seek another employment, and the fact that he has been offered a suitable post may be taken into account in assessing damages.
37. The obvious conclusion is that respondent no. 1 has failed to furnish proof of loss suffered by him on account of wrongful termination of OMP (Comm) 54/2022 16/20 NPST Vs. Munish Malik & Ors.
contract. Hence, respondent no. 1 was not entitled to any compensation/damages for breach of contract in view of law laid down in Kailash Nath Associates (supra).
38. Compensation of Rs. 10 lacs on account of mental harassment cannot be sustained in view of legal proposition of law laid down in 1957 SCC Online SC 29 - S.S. Shetty Vs. Bharat Nidhi Ltd. to the effect that no legal compensation can be claimed in respect of the injury done to the servant's feelings by the circumstances of his dismissal, nor in respect of extra difficulty of finding work resulting from those circumstances.
39. Another important aspect which needs to be considered in the present case is that respondent no. 1 concealed the fact from ld. Arbitrator that he was gainfully employed in National Sanskriti University since March 2021 on the past of Financial Officer. This fact was brought to the notice of ld. Arbitrator by petitioner while filing the affidavit and was admitted by respondent no. 1.
40. It is observed in the impugned award that the fact that respondent no. 1 was employed with National Sanskriti University was withheld by respondent no. 1 throughout the proceedings showing himself as unemployed and same came to the light when the affidavit was filed by petitioner.
41. It is a settled law that a party who conceals material fact from the Court is not entitled to any substantial relief. Law does not come to the aid of such litigant who try to pollute the administration of justice. Disclosure OMP (Comm) 54/2022 17/20 NPST Vs. Munish Malik & Ors.
of subsequent employment by respondent no. 1 was necessary for the Arbitral Tribunal to decide the actual loss suffered by respondent no. 1 on account of his wrongful employment.
42. In (1994) 1 SCC - S.P. Chengalvaraya Naidu (dead) by LRs. Vs. Jagannath (dead) by LRs and Ors. it was held that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.
43. Therefore, the claim of respondent no. 1 ought to have been rejected by the Arbitral Tribunal the moment it came to the notice of the Arbitral Tribunal that respondent no. 1 has concealed the factum of his subsequent employment. It was further laid down in S.P. Chengalvaraya Naidu (supra) as under:-
" A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as on the opposite party."
44. In (2011) 7 SCC 69 - Amar Singh Vs. Union of India & Ors ., it was held that Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the courts, initiated proceedings without full disclosure of facts. It was further held that such litigants have come with "unclean hands" and are not entitled to be heard on the merits of their case.
OMP (Comm) 54/2022 18/20NPST Vs. Munish Malik & Ors.
45. In (1983) 4 SCC 575 - Welcome Hotel Vs. State of A.P. it was held that a party which has misled the Court in passing an order in its favour is not entitled to be heard on the merit of the case.
46. Award of Rs. 9,85,108/- to respondent no. 1 on account of leave encashment appears to be without any evidence or basis and same cannot be sustained. While granting legal expenses, the Arbitral Tribunal also considered the legal expenses incurred by respondent no. 1 prior to invocation of arbitration. Therefore, even the award of legal expenses is not justified.
47. In (2014) 9 SCC 263 - Oil and Natural Gas Corporation Ltd. Vs. Western GECO International Limited it was held that an award could be set aside if it is contrary to :-
(a) fundamental policy of Indian law; or
(b) the interest of India; or
(c) justice or morality, or
(d) in addition, if it is patently illegal.
48. The Court has no hesitation in coming to the conclusion that impugned award 08.03.2022 and final award dated 05.08.2022 were not passed on any material evidence and accordingly, same suffers from patent illegality. Further respondent no. 1 tried his best to mislead the Arbitral Tribunal by concealing the fact that he was gainfully employed and thus, OMP (Comm) 54/2022 19/20 NPST Vs. Munish Malik & Ors.
the impugned award is also hit by Section 34 (2)(b)(ii) of Arbitration & Conciliation Act. The impugned award dated 08.03.2022 and final award dated 05.08.2022 are in conflict with public policy of India.
49. Accordingly, petition under Section 34 of Arbitration & Conciliation Act filed by petitioner is allowed and the impugned award dated 08.03.2022 and final award date 05.08.2022 are set aside.
File be consigned to Record Room.
Digitally signedSANDEEP by SANDEEP Announced in the open court YADAV YADAV Date: 2024.11.18 17:01:28 +0530 on 18.11.2024. ( Sandeep Yadav ) District Judge (Commercial)-03 South, Saket Courts, New Delhi.
OMP (Comm) 54/2022 20/20NPST Vs. Munish Malik & Ors.