Madras High Court
[M/S.M.R.Hi-Tech Engineers Pvt. Ltd. vs . The Union Of India] on 7 July, 2020
Author: M.Sundar
Bench: M.Sundar
Order in O.P.No.45 of 2012 dated 07.07.2020
[M/s.M.R.HI-Tech Engineers Pvt. Ltd. Vs. The Union of India]
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:07.07.2020
CORAM:
THE HONOURABLE Mr.JUSTICE M.SUNDAR
O.P.No.45 of 2012
M/s.M.R.HI-TECH ENGINEERS PVT LTD,
Represented by its Managing Director,
No: 10-A, Railway Feeder Road,
Ramanathapuram - 623 504. ... Petitioner
Vs.
1.The Union of India,
Represented by the General Manager,
Southern Railways, Park Town, Chennai - 3.
2.The Deputy Chief Engineer-II,
Construction Branch, Southern Railways,
Arasaradi, Madurai.
3.A.Joseph [Presiding Arbitrator],
The Senior Divisional Finance Manager,
Southern Railway, Tiruchirappalli - 1.
4.Mr.S.Kannan [Arbitrator],
The Deputy Chief Engineer, Office of the Chief Project Manager,
Railway Electrification, Southern Railways,
Egmore, Chennai - 8.
5.Mr.S.Jayakrishnan [Arbitrator],
Senior Divisional Electrical Engineer
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Order in O.P.No.45 of 2012 dated 07.07.2020
[M/s.M.R.HI-Tech Engineers Pvt. Ltd. Vs. The Union of India]
[Traction Distribution],
Southern Railway, Tiruchirappalli - 1. ... Respondents
Prayer: Petition filed under Section 34 of the Arbitration and Conciliation
Act, 1996 praying to set aside the Award dated 29.10.2011 passed by the
Arbitral Tribunal comprising of the Respondents 3 to 5 and pass a fresh
Award allowing all the claims of the petitioner and dismissing the Counter
Claim of the first and second respondents' Department.
For Petitioner : Mr.Amalaraj
For Respondents : Mr.M.T.Arunan
ORDER
This is an application under Section 34 of 'The Arbitration and Conciliation Act, 1996 (Act 26 of 1996)', which shall hereinafter be referred to 'A and C Act' for the sake of brevity. This application under Section 34 of A and C Act has been assigned the nomenclature 'Original Petition' and therefore, the same shall be referred to as 'OP' for the sake of convenience.
2. Instant OP has been filed with a prayer for setting aside an arbitral award dated 29.10.2011 (hereinafter 'impugned award' for the sake of clarity) made by a three Member 'Arbitral Tribunal' (hereinafter 'AT' for the sake of brevity).
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3. To be noted, the impugned award is a unanimous award made by the three Member AT.
4. As a prefatory note, it is necessary to set out that an application under Section 34 of A and C Act is neither an appeal nor a revision. It is not even a full-fledged review. It is a very limited challenge to an arbitral award within the contours and confines of Section 34, which has 8 slots adumbrated thereunder. Therefore, an application under Section 34 can at best be described as challenge to an arbitral award as it is not an appeal, revision or a full-fledged review. Furthermore, Hon'ble Supreme Court in Fiza Developers case [Fiza Developers and Inter-Trade Private Limited Vs. AMCI (India) Private Limited reported in (2009) 17 SCC 796] held that an application under Section 34 should be dealt with by adopting a summary procedure. This Fiza Developers principle was reiterated by Hon'ble Supreme Court in Emkay Global case being Emkay Global Financial Services Ltd. v. Girdhar Sondhi reported in (2018) 9 SCC 49. In 3/26 http://www.judis.nic.in Order in O.P.No.45 of 2012 dated 07.07.2020 [M/s.M.R.HI-Tech Engineers Pvt. Ltd. Vs. The Union of India] Emkay Global case, Hon'ble Supreme Court held that Fiza Developers principle is a step in the right direction. This in my understanding means a step in the right direction qua objectives of A and C Act and Alternate Dispute Resolution (ADR) mechanism. This principle has also been reiterated in Canara Nidhi Limited case [M/S. Canara Nidhi Limited vs M. Shashikala reported in 2019 SCC Online SC 1244]. Relevant paragraph in Canara Nidhi case law is paragraph 16. and the same reads as follows:
'16. The judgment in Fiza Developers was considered by Justice B.N. Srikrishna Committee which reviewed the institutionalisation of the arbitration mechanism and pointed out that opportunity to furnish proof in proceedings under Section 34 of the Arbitration Act has led to inconsistent practices. The said Committee reported as under:-
“5. Amendment to Section 34(2)(a) of the ACA: Sub-section (2)
(a) of Section 34 of the ACA provides for the setting aside of arbitral awards by the court in certain circumstances. The party applying for setting aside the arbitral award has to furnish proof to the court. This requirement to furnish proof has led to inconsistent practices in some High Courts, where they have insisted on Section 34 proceedings being conducted in 4/26 http://www.judis.nic.in Order in O.P.No.45 of 2012 dated 07.07.2020 [M/s.M.R.HI-Tech Engineers Pvt. Ltd. Vs. The Union of India] the manner as a regular civil suit. This is despite the Supreme Court ruling in Fiza Developers & Inter-
Trade (P) Ltd. v. AMCI (India) (P) Ltd. (2009) 17 SCC 796 that proceedings under Section 34 should not be conducted in the same manner as civil suits, with framing of issues under Rule 1 of Order 14 of the CPC. In light of this, the Committee is of the view that a suitable amendment may be made to Section 34(2)(a) to ensure that proceedings under Section 34 are conducted expeditiously. Recommendation: An amendment may be made to Section 34(2)
(a) of the Arbitration and Conciliation Act, 1996, substituting the words ‘furnishes proof that’ with the words ‘establishes on the basis of the Arbitral Tribunal’s record that’. [Report of Justice B.N. Srikrishna Committee quoted in Emkay Global Financial Services Ltd. v. Girdhar Sondhi (2018) 9 SCC 49]'
5. The above has now been done vide a amending Act being Arbitration and Conciliation (Amendment) Act, 2019 [Act No.33 of 2019] and Section 7 of the amending Act which brings in the above change kicked in on 30.08.2019 vide a notification being S.O.3154(E). However, as instant OP on Board is a vintage 2012 OP, I am applying Fiza Developers 5/26 http://www.judis.nic.in Order in O.P.No.45 of 2012 dated 07.07.2020 [M/s.M.R.HI-Tech Engineers Pvt. Ltd. Vs. The Union of India] principle as reiterated in Emkay Global and Canara Nidhi principles without any hesitation. In any event there is no change qua this aspect post change.
6. Therefore, it is clear that the contours of Section 34 is very limited and scope qua procedure is summary. It is a mere challenge to an arbitral award and it is a summary proceeding. Besides this, vide sub-section (6) of Section 34 a timeline has also been statutorily spelt out for disposal of applications under Section 34. This time line is one year from the date of receipt of pre-application notice under sub-section (5) of Section 34 by the the noticee.
7. In Bhumi Vikas Bank case being State of Bihar Vs. Bihar Rajya Bhumi Vikas Bank Samiti reported in (2018) 9 SCC 472, the Hon'ble Supreme Court has held that sub-section (5) notice is directory, not mandatory and therefore, one year time line can now be computed from the date of presentation of an application under Section 34. In the case on hand, instant OP was presented in this Court on 23.12.2011 more than 8 years ago. In this view of the matter, instant OP is clearly a vintage matter as mentioned supra, but in the light of sub-section (6) of Section 34 and the 6/26 http://www.judis.nic.in Order in O.P.No.45 of 2012 dated 07.07.2020 [M/s.M.R.HI-Tech Engineers Pvt. Ltd. Vs. The Union of India] observation of Hon'ble Supreme Court in Bhumi Vikas Bank case regarding timeline, it can even be described as ancient. To be noted, relevant paragraph in Bhumi Vikas Bank case law is paragraph 26 and the same reads as follows:
'26.We are of the opinion that the view propounded by the High Courts of Bombay and Calcutta represents the correct state of the law. However, we may add that it shall be the endeavour of every court in which a Section 34 application is filed, to stick to the time-limit of one year from the date of service of notice to the opposite party by the applicant, or by the Court, as the case may be. In case the Court issues notice after the period mentioned in Section 34(3) has elapsed, every court shall endeavour to dispose of the Section 34 application within a period of one year from the date of filing of the said application, similar to what has been provided in Section 14 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. This will give effect to the object sought to be achieved by adding Section 13(6) by the 2015 Amendment Act.'
8. In the light of aforesaid prefatory note on the scope of Section 34 and proceedings thereunder, it may not be necessary to set out facts in great detail. In other words, short facts shorn of details and particulars will 7/26 http://www.judis.nic.in Order in O.P.No.45 of 2012 dated 07.07.2020 [M/s.M.R.HI-Tech Engineers Pvt. Ltd. Vs. The Union of India] suffice. To put it differently, facts in a nutshell imperative for appreciating this order would suffice.
9. Facts in a nutshell are that there is a contract between the petitioner and Southern Railway bearing reference No.106/DYCE/GC/MNM/2005 dated 14.12.2005 wherein nature of work is 'Proposed Construction of Minor Bridges using precast RCC Boxes, cast-in-situ RCC boxes and precast PSC Slabs involving Temporary arrangements etc. including protective works between Ramanathapuram and Mandapam Stations in Manamadurai - Mandapam section - as part of Madurai - Rameswaram Gauge Conversion Works', hereinafter 'said contract' for brevity; that the value of said contract is little over Rs.1.10 crores' (to be precise Rs.1,10,38,485/-); that this contract contains an arbitration clause which is captioned 'settlement of disputes'; 'that this arbitration clause captioned 'settlement of disputes' forms part of what is known as 'General Conditions of Contract' ('GCC' for brevity); that GCC applies to said contract; that there is no disputation or disagreement that this clause serves as arbitration agreement (between adversaries therein) being arbitration agreement within 8/26 http://www.judis.nic.in Order in O.P.No.45 of 2012 dated 07.07.2020 [M/s.M.R.HI-Tech Engineers Pvt. Ltd. Vs. The Union of India] the meaning of Section 2(1)(b) read with Section 7 of A and C Act; that the said contract ran into rough weather owing to which, petitioner herein invoked the arbitration clause vide communication dated 24.03.2020 setting out its claim item wise; that Southern Railway responded vide communication dated 12.10.2010; that ultimately AT was constituted; that AT entered upon, adjudicated upon the claims and the counter claim that was brought up by Southern Railway; that the claims of the petitioner herein were under five heads being (a) Final Bill, (b) Earnest Money Deposit, (c) Machineries purchased exclusively for said contract, (d) Labour salary, and
(e) Loss of profit; that counter claim of Southern Railway was predicated on a plea submission that a sum of Rs.19,27,441/- had been made as excess payment vide another contract bearing agreement No.14 dated 18.02.2006; that the AT allowed first and second heads of claims of the claimant, rejected claims under heads 3 to 5 of the claimant and allowed the counter claim of Southern Railway in its entirety. As the counter claim was in excess of the two heads of allowed claims of the petitioner, the petitioner vide impugned award was directed to pay the difference. Seeking to set aside the impugned award, instant OP has been filed as mentioned supra. 9/26 http://www.judis.nic.in Order in O.P.No.45 of 2012 dated 07.07.2020 [M/s.M.R.HI-Tech Engineers Pvt. Ltd. Vs. The Union of India]
10. Though there are elaborate pleadings akin to a regular first appeal under Section 96 of 'The Code of Civil Procedure, 1980' ('CPC' for brevity), in the light of scope of Section 34, which has been delineated supra, I would now focus with specificity on the slots under Section 34 under which impugned award is sought to be set aside/dislodged and deal with the same.
11. Before I proceed to do that, it is necessary to set out that predecessor Hon'ble Judge vide proceedings dated 16.07.2019 had directed Southern Railway to produce the entire files relating to said contract as well as the other contract 18.02.2006. These proceedings made by learned predecessor Judge dated 16.07.2019 reads as follows:
'2.The respondent is directed to produce the entire file relating to the Agreement Nos.106/DY.CE/GC/MDU/2005, dated 15.12.2005 and 14/DY.CE/GC/MNM/2006, dated 18.02.2006 on 23.07.2019.'
12. Pursuant to the aforementioned directions, the records have been placed before me today.
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13. Learned counsel for petitioner predicated and posited his challenge to the impugned award on two grounds or in other words two of the eight slots adumbrated under Section 34. One is that the impugned award, both deals with and contains decisions regarding disputes falling outside the terms of submission to arbitration and those beyond the scope of submission to arbitration. In other words, it is the pointed submission of learned counsel for the petitioner that the impugned award deals with disputes not falling within the submission to arbitration and it also contains decisions on matters beyond the scope of submission to arbitration. This in statutory parlance is Section 34(2)(a)(iv). The other point/slot under which petitioner seek to set aside the impugned award is that it is in conflict with public policy of India. This in statutory parlance is Section 34(2)(b)(ii).
14. With regard to the first ground/first slot which is Section 34(2)(a)(iv), I would refer to the same as 'wandering' for the sake of convenience. As already alluded to supra, the records/files are before me. With regard to the wandering ground, learned counsel refer to the 11/26 http://www.judis.nic.in Order in O.P.No.45 of 2012 dated 07.07.2020 [M/s.M.R.HI-Tech Engineers Pvt. Ltd. Vs. The Union of India] arbitration clause or the arbitration agreement would be the parties which is in the form of a covenant in GCC and the same reads as follows:
'64(1)(ii) Demand for Arbitration:-
In the event of any dispute or difference between the parties hereto as to the construction or operation of this contract, or the respective rights and liabilities of the parties on any matter in question, dispute or difference on any account, or as to the withholding by the Railway of any certificate to which the Contractor may claim to be entitled to, or if the Railway fails to make a decision within 120 days, then Contractor may claim to be entitled to, or if the Railway fails to make a decision within 120 days, then and in any such case, but except in any of the 'excepted matters' referred to in clause 63 of these conditions, the Contractor, after 120 days but within 180 days of his presenting his final claim on disputed matters, shall demand in writing that the dispute or difference be referred to arbitration.
64(1)(ii).
The demand for arbitration shall specify the matters which are in question or subject of the dispute or difference as also the amount of claim item-wise. Only such dispute(s) or difference(s) in respect of which the demand has been made, together with counter claims or set off shall be referred to arbitration and other matters shall not be included in the reference.
64(1)(ii).
(a) The Arbitration proceedings shall be assumed to have commenced from the day, a written and valid demand for arbitration is received by the Railway.
(b) The claimant shall submit his claim stating the facts supporting the claims along with all relevant documents and the relief or remedy sought against each claim within a period of 30 days from the date of appointment of the Arbitral Tribunal.12/26
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(c) The Railway shall submit its defence statement and counter claim(s), if any, within a period of 60 days of receipt of copy of claims from Tribunal thereafter; unless otherwise extension has been granted by the Tribunal."
15. Learned counsel drew my attention to clause 64(1)(ii), which makes it clear that the demand for arbitration shall specify the matters which are in question as also the amount of claim item wise. It has also been agreed that only such disputes and differences in respect of which demand(s) have been made together with counter claim or set off shall be referred to arbitration and other matters shall not be included in the reference. Though entire Settlement of Disputes clause has been extracted and reproduced supra, considering the importance of 64(1)(ii), the same is reproduced herein infra again:
'The demand for arbitration shall specify the matters which are in question or subject of the dispute or difference as also the amount of claim item-wise. Only such dispute(s) or difference(s) in respect of which the demand has been made, together with counter claims or set off shall be referred to arbitration and other matters shall not be included in the reference.' (Underlining and double underlining made by this Court to supply emphasis and highlight) 13/26 http://www.judis.nic.in Order in O.P.No.45 of 2012 dated 07.07.2020 [M/s.M.R.HI-Tech Engineers Pvt. Ltd. Vs. The Union of India]
16. To be noted, the legal philosophy emphasis on clause 64(i)(ii) is arbitral tribunal is a creature of contract.
17. Adverting to the trigger notice dated 24.03.2010, learned counsel for petitioner submitted that the five heads of claim have been set out with clarity and specificity in the form of tabulation. In stark contradistinction, in the aforementioned response from Southern Railway, though there is a reference to counter claims, it merely says that counter claim(s) is/are without setting out what the counter claim/s is much less the amounts of claim item wise. It was also pointed out that much later, even as of 10.03.2011, there is a communication from Southern Railway to the AT, wherein it has been mentioned that certain particulars are to be obtained from the Chief Vigilance Office for preparation of counter claim and the same will be submitted in due course. This, according to learned counsel for petitioner, is clearly in violation of clause 64(1)(ii). Furthering his submissions on the wandering point, learned counsel drew my attention to the counter claim of Railways, which is posited on alleged excess payment with regard to another contract, namely Agreement No.14 dated 18.02.2006. 14/26 http://www.judis.nic.in Order in O.P.No.45 of 2012 dated 07.07.2020 [M/s.M.R.HI-Tech Engineers Pvt. Ltd. Vs. The Union of India] It was pointed out that it is in this context that learned predecessor Judge has summoned the records/files. It was submitted that the other contract dated 18.02.2006 has been completed and payments have also been duly received in 2009 itself. To be noted, work qua the other contract as can be culled out from the records/files before me reads as follows:
'Proposed Construction of Minor bridges of clear span and vent height up to 2m, using precast RCC Boxes, Cast-in-situ RCC Boxes etc., Removing the top soil from MG formation and making it to BG standard duly filling with moorum including dismantling of existing MGP. Way, widening the formation with cut spoil and Other protective works...Reach-V between Ramanathapuram and Mandapam - in Manamadurai -
Mandapam section - as part of Madurai - Rameswaram Gauge conversion works.'
18. It was argued that a claim based on another contract, namely Agreement No.14 dated 18.02.2006 was definitely not the terms of submission to arbitration and therefore, the AT has dealt with disputes not contemplated by terms of submissions and the impugned award contains decisions on matters beyond the scope of submission. In other words, it 15/26 http://www.judis.nic.in Order in O.P.No.45 of 2012 dated 07.07.2020 [M/s.M.R.HI-Tech Engineers Pvt. Ltd. Vs. The Union of India] was submitted that the submission to arbitration was only with regard to said contract and not with regard to other contract qua Agreement No.14 dated 18.02.2006. To be noted, this is the second facet of first point i.e, wandering point.
19. With regard to the second slot on which the impugned award is sought to be dislodged, namely conflict with public policy, learned counsel for petitioner submitted that the impugned award lacks judicial approach. It was submitted that three juristic doctrines constitute public policy and judicial approach is one of them. In support of this, it was submitted that the counter claim of the Railways has been simply accepted in one terse paragraph consisting of two sentences. It was submitted that this is accepting the ipsi dixit of Southern Railway without any kind of discussion whatsoever.
20. In response to the above submissions, learned Standing Counsel for Railways adverting to a counter affidavit filed by Southern Railway submitted that the petitioner/ contractor has executed work under said 16/26 http://www.judis.nic.in Order in O.P.No.45 of 2012 dated 07.07.2020 [M/s.M.R.HI-Tech Engineers Pvt. Ltd. Vs. The Union of India] contract, but claimed and received monies under the other contract No.14 dated 18.02.2006 which provides for a higher rate. Passing here for a moment, it is made clear that in an application under Section 34 of A and C Act, a counter affidavit does not arise. However, as the same has already been filed/taken on record and as it forms part of the records, I am looking into it/treating it as written submissions.
21. Learned counsel for Southern Railways Mr.M.T.Arunan, also vehemently submitted that said contract and another contract have identical nature of work and the contractor/petitioner has received money at a higher rate under another contract. With regard to conflict with public policy ground, it was emphatically submitted by Mr.M.T.Arunan that the impugned award has been made with judicial approach as two of the 5 claims made by the petitioner have been acceded to and therefore, it cannot be gainsaid that it lacks judicial approach.
22. I now proceed to examine the rival submissions, discuss the same and give my dispositive reasoning for arriving at a conclusion in instant 17/26 http://www.judis.nic.in Order in O.P.No.45 of 2012 dated 07.07.2020 [M/s.M.R.HI-Tech Engineers Pvt. Ltd. Vs. The Union of India] OP.
23. With regard to the first slot of wandering, I carefully examined the records/files that have been placed before me. A perusal of the records/files make it clear that said contract, namely Agreement No.106 and another contract, namely Agreement No.14 are two separate contracts and there are two separate arbitration clauses. The arbitration clauses are couched in the same language as the same form part of template GCC, but the contracts are different. The nature of work qua said contract and another contract have also been extracted supra. While the value of said contract is little over Rs.1.10 crores, the value of another contract is Rs.2.14 Crores (to be precise Rs.2,14,34,477/-). The arbitration clause in the other contract has admittedly not been invoked by either of the parties. It is the stated position of the petitioner that the other contract has been completed and payments have been duly made. It is also the stated position of the petitioner/contractor that with regard to the other contract, there is no dispute or differences. Therefore, if the Southern Railway had any dispute or difference with regard to payments made under the other contract, 18/26 http://www.judis.nic.in Order in O.P.No.45 of 2012 dated 07.07.2020 [M/s.M.R.HI-Tech Engineers Pvt. Ltd. Vs. The Union of India] namely Agreement No.14 dated 18.02.2006, the arbitration clause therein ought to have been invoked. To be noted, it is a separate arbitration agreement within the meaning of Section2(1)(b) read with Section 7 of A and C Act. Not having done so, making a counter claim on the basis of payments said to have been made under other / another contract is clearly making a counter claim, which is beyond the scope of the arbitration agreement, which has been invoked. The AT having dealt with the same vide the impugned award, certainly tantamounts to dealing with disputes not falling within the terms of submission to arbitration. The findings given by AT, particularly allowing the counter claim of Southern Railway in its entirety in one terse paragraph containing two lines/sentences certainly tantamounts to impugned award containing a decision on a matter beyond the scope of submission to arbitration. A careful perusal of the records/files placed before me also reveals that the other / another contract has been discharged and payments have been made.
24. If the Southern Railways had any dispute with regard to the other contract, the arbitration agreement therein should have been invoked. The 19/26 http://www.judis.nic.in Order in O.P.No.45 of 2012 dated 07.07.2020 [M/s.M.R.HI-Tech Engineers Pvt. Ltd. Vs. The Union of India] arbitration agreement between the parties being arbitration agreement within the meaning of Section 2(1)(b) read with Section 7 of the A and C Act is in the form of a covenant in the GCC and therefore, there are two separate arbitration agreements between the parties, namely qua said contract and the other/another contract. While arbitration agreement in said contract has been invoked and while the AT has entered upon reference with regard to arbitration agreement qua said contract, it cannot go into a counter claim predicated on payments made under another contract, which is governed by a separate arbitration agreement being arbitration agreement within the meaning of Section 2(1)(b) read with Section 7 of A and C Act.
Therefore, I have no difficulty in finding for the petitioner/contractor with regard to the wandering ground.
25. With regard to the second ground i.e., impugned award being in conflict with public policy, I remind myself that the term 'public policy' was not explained statutorily prior to 23.10.2015 when Explanation (1) to Section 34(2)(b)(ii) was brought in.
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26. This being a 2012 OP the lead judgment of Hon'ble Supreme Court with regard to public policy is Western Geco case, being ONGC Ltd. v. Western Geco International Ltd., reported in (2014) 9 SCC 263, which was rendered on 04.09.2014 followed by Associate Builders case, being Associate Builders Vs. Delhi Development Authority reported in (2015) 3 SCC 49. Western Geco principle was reiterated in Associate Builders case. In sum and sentence the principle in Western Geco is reiterated in Associate Builders case with regard to public policy. Three distinct juristic doctrines can be culled out qua public policy. Those three distinct juristic doctrines culled out by Hon'ble Supreme Court are
a) Judicial approach;
b)Natural justice principle (NJP for brevity); and
c) Irrationality/perversity.
27. Hon'ble Supreme Court not only culled out three distinct juristic principles, but it also laid down three separate tests for each of juristic 21/26 http://www.judis.nic.in Order in O.P.No.45 of 2012 dated 07.07.2020 [M/s.M.R.HI-Tech Engineers Pvt. Ltd. Vs. The Union of India] doctrines with regard to judicial approach. The test laid down by Hon'ble Supreme Court is fidelity of judicial approach, with regard to NJP, the test is audi alteram partem and with regard to third juristic principle, namely irrationality/perversity, the test is time honoured Wednesbery principle of reasonableness. In the instant case, we are concerned with only one of the three juristic doctrines, namely judicial approach.
28. This takes us straight away to the manner in which counter claim of Southern Railway has been dealt with by the AT in the impugned award. This is contained in Page 7 of the impugned award, which also the concluding/last page of the impugned award. The same reads as follows:
'Respondent's Counter Claim.
Claim No.1 - Respondent's claim to the tune of Rs.19,27,441/- has been made towards excess payment received by the Claimant in Agreement No.106/Dy.CE/GC/MDU/2005 dt. 14.12.2005 & Agreement No.14/Dt.CE/GC/MNM/206 dt. 18.02.06.
The above item was examined in detail by the Tribunal and observed that Agreement No.106/Dy.CE/GC/MDU/2005 dt.14.12.2005 and Agreement No.14/Dy.CE/GC/MNM/206 22/26 http://www.judis.nic.in Order in O.P.No.45 of 2012 dated 07.07.2020 [M/s.M.R.HI-Tech Engineers Pvt. Ltd. Vs. The Union of India] dt.18.02.06 were awarded to the Claimant by the Respondent for executing the work between Ramanathapuram and Mandapam Sections. In this regard, it is pertinent to point out that Agreement No.106 dt. 14.12.05 was awarded to the Claimant for executing the work at (+)10% over BSR 2000 and Agreement No.14 dt. 18.02.06 was awarded to the Claimant for executing the work at (+) 48% over BSR 2000. Both the Agreements were live at the same time and work carried out was similar in nature and in the same stretch by the Claimant. Hence, Tribunal has taken into account both the Agreement works into consideration.
The Respondent has subsequently found out the items which are found in common in both the Agreements, higher rates have been operated and paid. The difference, to be recovered from the Claimant, has been made as a counter claim by the Respondent. Tribunal decides the legitimacy and admits.
Further, the Claimant's contention that the Agreement No.14/Dy.CE/GC/MNM/206 dt.18.02.06 is not under the purview of the Tribunal is not correct. In as much as the payments for the work done under Agreement No.106 dt. 14.12.05 have been paid under Agreement No.14 dt.18.02.2006, this cannot be ignored.
23/26 http://www.judis.nic.in Order in O.P.No.45 of 2012 dated 07.07.2020 [M/s.M.R.HI-Tech Engineers Pvt. Ltd. Vs. The Union of India] As such, the Tribunal decides that the Claimant has to pay to the Respondent a sum of Rs.19,27,441/- as per the Respondent's letter dt. 28.03.2011, as detailed below.
Annexure 'A' BSR Items Rs.9,50,675.00
Annexure 'B' Item No.1 Rs. 11,600.00
Annexure 'B' Item No.2 Rs.3,30,660.00
Annexure 'C' Item No.15 Rs. 8,400.00
Annexure 'C' Item No.24 Rs.3,75,000.00
Annexure 'D' Item No.1 Rs.1,01,106.00
Annexure 'D' Item No.2 Rs.1,50,000.00
----------------------
Total :Rs.19,27,441.00
-----------------------
Amount claimed Rs.19,27,441/-
Award for Respondent's Claim Rs.19,27,441/- (Rupees nineteen lakhs twenty seven thousand four hundred and forty one only)' (underlining made by this Court to supply emphasis and highlight)
29. As already alluded to supra, in two sentences, the entire counter claim of Southern Railway has been accepted and the counter claim has been acceded to. These two sentences make up the terse second paragraph 24/26 http://www.judis.nic.in Order in O.P.No.45 of 2012 dated 07.07.2020 [M/s.M.R.HI-Tech Engineers Pvt. Ltd. Vs. The Union of India] in page 7 of the impugned award supra which has been extracted and reproduced supra. In my considered view, this clearly lacks fidelity of judicial approach.
30. I have no hesitation in applying the test of fidelity of judicial approach and holding that the test stands answered in favour of the petitioners as counter claim has been allowed in its entirety by merely parroting plea of Southern Railway without saying why and how the same needs to be acceded to.
31. As both the slots adumbrated under Section 34 under which impugned award is sought to be dislodged find favour with me and I find for the petitioners qua both the slots, the impugned award cannot but be set aside.
As a sequitur, instant OP is allowed. Considering the nature of the matter. There shall be no order as to costs.
07.07.2020
Speaking order : Yes
Index : Yes
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Order in O.P.No.45 of 2012 dated 07.07.2020
[M/s.M.R.HI-Tech Engineers Pvt. Ltd. Vs. The Union of India] Sgl/gpa M.SUNDAR, J.
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