Madras High Court
The Executive Director (Tn&P) vs H.Thiagaraj on 17 December, 2020
Author: M.Sundar
Bench: M.Sundar
O.P.Nos.402 & 708 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 17.12.2020
Coram
THE HONOURABLE MR. JUSTICE M.SUNDAR
O.P.Nos.402 & 708 of 2016
The Executive Director (TN&P)
Indian Oil Corporation Limited
Marketing Division, Southern Region
Indian Oil Bhavan
139, Mahatma Gandhi Road,
Nungambakkam High Road
Chennai-600 034. ... Petitioner in O.P.No.402/2016
and Respondent in O.P.No.708/2016
vs.
1. H.Thiagaraj
Managing Partner
M/s.Shanthi Super Service
Indian Oil Dealers
Donnington Road
Kothagiri - 643 217. ... first respondent in O.P.No.402/2016
and petitioner in O.P.No.708/2016
2. Hon'ble Mr.Justice P.P.S.Janarthana Raja (Retd.)
Sole Arbitrator
No.10A, 14th Avenue
Harrington Road, Chetpet,
Chennai-600 014. ... Respondents in O.P.No.402/2016
(Second Respondent deleted as per order dated 22.06.2016
made in O.P.No.402 of 2016 and A.No.2619 of 2016)
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O.P.Nos.402 & 708 of 2016
Original Petition No.402 of 2016 filed under Section 34(2)(a)(iv) read
with Section 16(6) of the Arbitration and Conciliation Act, 1996, to set aside
the arbitration award dated 26.03.2016 passed by the 2nd respondent arising
out of the dispute between the petitioner and the 1st respondent under the
Dealership Agreement and direct the 1st respondent to pay the costs of the
petition.
Original Petition No.708 of 2016 filed under Section 34 of the
Arbitration and Conciliation Act, 1996, to set aside the award dated
26.03.2016 passed by the Arbitrator in respect of refusing to set aside the
termination of dealership order dated 24.09.2020.
For petitioner in O.P.No.402/2016
and respondent in O.P.No.708/2016 : Mr.A.Abdul Hameed
for M/s.AAV Partners
For first Respondent in O.P.No.402/2016
and petitioner in O.P.No.708/2016 : Mr.Sharath Chandran
C O M M ON O R D E R
This common order will govern the two captioned 'Original Petitions' ('OPs' in plural and 'OP' in singular for the sake of brevity and convenience). Captioned applications are under Section 34 of 'The Arbitration and Conciliation Act, 1996 (Act No.26 of 1996)' {which shall hereinafter be referred to as 'A and C Act' for the sake of convenience and Page No.2/29 https://www.mhc.tn.gov.in/judis/ O.P.Nos.402 & 708 of 2016 clarity}, assailing an 'arbitral award dated 26.03.2016' [hereinafter 'impugned award' for the sake of convenience, clarity and brevity] made by an 'Arbitral Tribunal' [hereinafter 'AT' for the sake of convenience, clarity and brevity] constituted by a sole arbitrator, who is a former Hon'ble Judge of this Court.
2. In this common order, from hereon, 'O.P.No.402 of 2016' shall be referred to as 'Senior OP' and 'O.P.No.708 of 2016' shall be referred to as 'Junior OP' for the sake of convenience and clarity, while Senior OP has been preferred by 'respondent' before AT, which shall hereinafter be referred to as 'IOC' ('IOC' denoting 'Indian Oil Corporation Limited'), Junior OP has been preferred by one H.Thiagaraj, Managing Partner of M/s.Shanthi Super Service, which was a retail dealer of IOC. H.Thiagaraj, who is claimant before AT shall continue to be referred to as claimant in this order for the sake of convenience and clarity.
3. Therefore, it is clear that captioned two OPs are in the nature of cross OPs.
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4. Mr.A.Abdul Hameed of M/s.AAV Partners (Law Firm) on behalf of IOC and Mr.Sharath Chandran, learned counsel representing counsel on record for claimant are before me in this web hearing on a video conferencing platform i.e., virtual hearing, with the consent of both learned counsel captioned OPs were taken up for final disposal, they were heard out and this common order is being made.
5. Captioned OPs being applications under Section 34 of A and C Act, short facts i.e., factual matrix in a nut shell or in other words essential facts imperative for appreciating this order will suffice. To be noted, this is owing to the limited legal landscape and short statutory perimeter of Section 34 of A and C Act. To put it differently, this is owing to short statutory perimeter of Section 34 of A and C Act within which a legal drill of testing the impugned award should perambulate.
6. Be that as it may, short facts are that a partnership firm which goes by the name M/s.Shanthi Super Service constituted by two partners Page No.4/29 https://www.mhc.tn.gov.in/judis/ O.P.Nos.402 & 708 of 2016 namely, Mr.Hutchi Gowder and Mr.Krishnan were appointed as dealers of IOC (retail outlet) vide Dealership Agreement dated 29.09.1984; that on 01.04.1990, Hutchi Gowder's son H.Thiagaraj, i.e., claimant and Hutchi Gowder's wife Mrs.Mary became partners in the said firm; that there is not much of clarity about how the exact reconstitution happened, but IOC sought for reconstitution deeds for the dealership to continue; that the response was not satisfactory/inadequate and records for reconstitution was not produced; that this resulted in a show cause notice followed by a termination notice dated 24.09.2010 (Ex.C12 before AT) issued by IOC; to be noted, claimant is noticee No.7 in this termination notice; that this termination notice is the genesis of arbitral disputes that erupted between parties; that AT was constituted and parties went before AT; that AT which entered upon reference, adjudicated upon lis and made the impugned award; to be noted, before AT, claimant sought to set aside termination notice dated 24.09.2010 (Ex.C12) and claimed a compensation of 83.50 Lakhs inter alia towards damages for alleged wrongful termination and loss said to have been suffered by claimant, besides the usual prayer for costs and a residual limb of prayer; this was resisted by IOC; that vide impugned award AT did Page No.5/29 https://www.mhc.tn.gov.in/judis/ O.P.Nos.402 & 708 of 2016 not accede to prayer limb seeking to set aside the termination notice (Ex.C12), but with regard to compensation, AT acceded to the same partly by directing refund of 4.70 Lakhs advance paid by claimant with 9% interest from the date of suspension of supply i.e., 08.07.2008 and also directed IOC to pay 7.50 Lakhs towards alleviation for 11 workmen; that IOC has filed Senior OP and claimant has filed Junior OP.
7. Before proceeding further there is a peripheral issue which requires to be addressed.
8. Prayer in Senior OP filed by IOC reads as follows:
'Under the above circumstances it is prayed that this Hon'ble Court may be pleased to set aside the arbitration award dated 26.03.2016 passed by the 2nd respondent arising out of the dispute between the petitioner and the 1st respondent under the Dealership Agreement and direct the 1st respondent to pay the costs of the petition and pass such further or other orders as this Hon'ble Court may deem fit and proper in the circumstances of the case and thus render justice.' Page No.6/29 https://www.mhc.tn.gov.in/judis/ O.P.Nos.402 & 708 of 2016
9. Prayer in Junior OP filed by claimant reads as follows:
'The petitioner, therefore humbly prays that this Hon'ble Court may be pleased to set aside the award dated 26.03.2016 passed by the Arbitrator in respect of refusing to set aside the termination of dealership order dated 24.09.2020 and thus render justice.'
10. From the narrative thus far, it is clear that heads of claims pertaining to challenge to termination notice and claim for compensation can clearly be segregated. Therefore, applying J.G.Engineers principle being dicta of Hon'ble Supreme Court in J.G. Engineers Pvt. Ltd. v. Union of India (UOI) and Ors. reported in 2011 5 SCC 758, this Court deems it appropriate to entertain Junior OP.
11. This Court having set out the peripheral issue, now plunges into core aspects of the matter.
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12. Mr.Sharath Chandran, learned counsel representing the counsel on record in Junior OP filed by claimant opened submissions and his argument can be described as a two pronged attack qua impugned award and summation of the same is as follows:
(a) Claimant had only sought declaration that the termination notice dated 24.09.2010 (Ex.C12) is bad and claimant did not seek restoration of dealership. Therefore, AT has wrongly applied the principle laid down in Indian Oil Corporation Ltd., Vs. Amritsar Gas Service and others reported in [1991] 1 SCC 533.
(b) The impugned termination notice (Ex.C12) has been sustained by AT on a point which is not articulated in the impugned termination notice as there is no mention about Mrs.Mary (wife of Hutchi Gowder) in the termination notice.
13. Mr.Abdul Hameed learned counsel of M/s.AAV Partners (law firm) appearing on behalf of IOC made submissions, summation of which is as follows:
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(a) It cannot be gainsaid that prayer of claimant qua impugned termination notice is only for declaration as the natural consequence of termination notice being set aside is restoration of dealership.
(b) It is incorrect to say that there is no mention about Mrs.Mary (wife of Hutchi Gowder) in the termination notice and termination notice has been sustained on grounds not articulated in notice.
(c) The compensation of Rs.7.50 Lakhs awarded by AT is based on no evidence/no pleadings, as Ex.C18, which is a communication dated 04.09.2008 was received at the time of arguments.
14. Before proceeding further there is one very significant and important aspect of the matter which requires to be recorded.
15. Mr.Abdul Hameed learned counsel of M/s.AAV Partners (Law Firm) on record for IOC very fairly submitted on instructions that with Page No.9/29 https://www.mhc.tn.gov.in/judis/ O.P.Nos.402 & 708 of 2016 regard to the impugned award directing refund of Rs.4.70 Lakhs advance payment made by dealer/claimant together with 9% interest and the same being acceded to by AT, the challenge of IOC is not pressed. In other words this limb of the operative portion of impugned award contained in paragraph No.53(1) straight away stands sustained. For the sake of convenience, this Court deems it appropriate to extract entire paragraph No.53 (operative portion) of impugned award which reads as follows:
'53. Therefore, the Claimant is awarded the following reliefs:
1. The respondent is directed to pay a sum of Rs.4,70,000/- with interest at 9% from the date of suspension of supply dated 08.07.2008 till the date of payment.
2. The respondent is directed to pay compensation of Rs.7,50,000/- towards workmen.'
16. Therefore, the issue now stands narrowed down to correctness of AT negativing the challenge to termination notice and awarding Rs.7.50 Lakhs to workmen alleviation and negativing the remaining heads of claim of claimant.
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17. This Court now proceeds to deal with arguments that were advanced i.e., rival submissions which were made.
18. With regard to the argument that prayer of dealer was only for declaration that the impugned termination notice is bad and not for restoration of dealership, though attractive at first blush, on close examination this Court finds that it cannot be sustained. In this regard, paragraph No.7 of Amritsar Gas Service case law, [Indian Oil Corporation Ltd., Vs. Amritsar Gas Service and others reported in [1991] 1 SCC 533] is extracted and reproduced infra.
'7.It is pursuant to the order of reference dated December 16, 1985, modified as above by the order dated April 9, 1986 by this Court, that Shri B.R. Tuli, a retired Judge of the Punjab and Haryana High Court has made the award dated November 15, 1986. On the pleadings of the parties, the arbitrator framed the issues as under:
“(1) Whether the termination of plaintiff's distributorship was validly effected by the defendant Corporation? ORD.Page No.11/29
https://www.mhc.tn.gov.in/judis/ O.P.Nos.402 & 708 of 2016 (2) If Issue No. 1 is decided against the defendant Corporation, to what relief is the plaintiff entitled? OPP. (3) Is the defendant entitled to make the counter-claim as stated in the written statement? If so, to what amount is the defendant entitled? OPD.” The arbitrator then recorded his decision on the issues framed and granted the reliefs as under:
“I have very carefully considered the evidence, both oral and documentary, led in the case and the arguments addressed by the learned counsel for the parties. In this light of the facts and circumstances of the case and the law governing such cases, I record my decision on various issues framed in the case as under: Issue No. 1. I hold that the termination of the plaintiff's distri?butorship was not validly effected by the defendant Corporation and thus decide this issue in favour of the plaintiff. Issue No. 2. As a consequence of my decision on Issue No. 1, the plaintiff is granted a declaration that the termination of its distributorship by the defendant Corporation by letter dated March 11, 1983, was wrongful, invalid and not binding on the plaintiff. The plaintiff is held entitled to due compensation flowing from the breach of the contract by the defendant Corporation till the breach of the contract is remedied by the restoration of the distributorship. The quantum of compensation will be the commission that the plaintiff would have earned on the supply of L.P. Gas cylinders to its customers if the distributorship Page No.12/29 https://www.mhc.tn.gov.in/judis/ O.P.Nos.402 & 708 of 2016 had not been terminated, as per the statement made by the learned counsel for the defendant Corporation before the learned Subordinate Judge, 1st Class, Amritsar, on October 15, 1983 and the order of the learned court dated October 19, 1983, based on that statement. The defendant Corporation shall render account of such commission which would have been earned by the plaintiff firm from the date of the wrongful termination of the plaintiff's distributorship, i.e., March 14, 1983, to the date on which the distributorship is restored to the plaintiff firm. The learned court, before whom the application is made for making the award the rule of the court, shall pass an appropriate decree in this behalf in case the award is upheld. The plaintiff is also held entitled to the price of 224 cylinders, which, I hold, were filled ones and to the return of 384 regulators and all other articles, registers and cards etc., taken into possession by the defendant Corporation from the office premises and godowns of the plaintiff firm on March 14, 1983. In short, the position will be restored as it was before cancellation.
The defendant Corporation shall also return the amounts of two drafts of Rs 15,580.83 each dated March 8, 1983 and March 11, 1983 sent to its Jalandhar Depot by the plaintiff firm against which no supplies were made to it.
Since the defendant Corporation has committed the breach of the contract of distributorship of the plaintiff firm, I hold it liable to remedy the breach by restoration of the distributorship in the Page No.13/29 https://www.mhc.tn.gov.in/judis/ O.P.Nos.402 & 708 of 2016 peculiar facts of this case, I consider it to be an exceptional case for the following reasons:
(i) The damages cannot be determined as the number of years for which the damages should be awarded cannot be fixed nor will damages afford an adequate relief to the plaintiff firm.
(ii) The distributorship of L.P. Gas is not easily available as it is not a commodity which is sold and bought in the market.
(iii) The partners of the plaintiff firm are engineering graduates and were granted the distributorship in the category of Unemployed Engineering Graduates to provide them with the means of livelihood as per the policy of the government. They were appointed by letter dated December 1, 1971, in pursuance of which they made all arrangements by hiring office premises and godowns and fitting and furnishing them properly by investing a good deal of money to make this business the source of their livelihood. They had held this distributorship for 11 years before it was terminated. Those were the years which were vital for them to establish themselves in service or business and make a career thereof for earning livelihood during the rest of their lives. Those precious years have gone never to return.
(iv) The distributorship agreement was for an indefinite period, that is, till the time it was terminated in accordance with the terms contained therein. Since it has not been terminated in accordance with clause 27 thereof, under which the termination Page No.14/29 https://www.mhc.tn.gov.in/judis/ O.P.Nos.402 & 708 of 2016 was made, the plaintiff firm is entitled to the continuance of the distributorship in the special circumstances of this case.
This award will, however, not fetter the right of the defendant Corporation to terminate the distributorship of the plaintiff in accordance with the terms of the agreement dated April 1, 1976, if and when an occasion arises.
Issue No. 3. I hold that the counter-claim made by the defendant Corporation in its written statement cannot be determined by me in these arbitration proceedings for the reason that only the dispute between the parties raised in Civil Appeal No. 5701 of 1985 in the Supreme Court and the dispute in Suit No. 376 of 1983, pending in the Court of the learned Senior Subordinate Judge, Amritsar, have been referred to me for decision. The counter-claim made by the defendant Corporation in its written statement was not there on April 9, 1986, the date of the order of the Hon'ble Supreme Court making reference to me. This counter-claim is, therefore, left undecided. Reliefs: The plaintiff is granted the following reliefs:
(1) A declaration that the termination of its distributorship of L.P. Gas by the defendant Corporation by letter dated March 11, 1983, was wrongful and invalid and not binding on the plaintiff. (2) The defendant Corporation is directed by mandatory injunction to remedy the breach of the contract by restoring the distributorship to the plaintiff as it existed on March 14, 1983, before its termination and to return all articles, goods and Page No.15/29 https://www.mhc.tn.gov.in/judis/ O.P.Nos.402 & 708 of 2016 records taken into possession by the defendant Corporation from the office premises, showrooms and godowns of the plaintiff and to pay to the plaintiff firm the amounts of two demand drafts for Rs 15,580.83 each dated March 8, 1983 and March 11, 1983 sent to Jalandhar Depot of the defendant Corporation for supply or refills and against which no supplies were made. (3) The defendant Corporation shall render account of the commission which the plaintiff firm would have earned if the distributorship had not been terminated from March 14, 1983, to the date of the restoration of the distributorship and to pay the same to the plaintiff firm.
(4) The defendant Corporation shall pay the costs of the suit as may be determined by the learned court. The defendant Corporation shall also pay to the plaintiff the costs of these arbitration proceedings amounting to Rs 6750, the amount of fees paid by it to me.”'
19. Adverting to paragraph No.7 of Amritsar Gas Service case law, learned counsel submits that in that case there was a prayer for mandatory injunction to restore distributorship, but there is none here. To be noted, Amritsar Gas Service case law, was followed by a Division Bench of this Court in Indian Oil Corporation Ltd., and another Vs. Bhagawan Balasai Page No.16/29 https://www.mhc.tn.gov.in/judis/ O.P.Nos.402 & 708 of 2016 Enterprises and another reported in 2017 SCC Online Madras 37266. To be noted, I had the benefit of writing Bhagawan Balasai Enterprises Judgement for a Division Bench of this Court.
20. The argument that claimant did not seek restoration of dealership and therefore, the principle that a contract, which is terminable, cannot be specifically enforced does not hold water as, if the termination notice i.e., Ex.C12 is set aside, it is axiomatic that the dealership will stand revived. In such a scenario, nothing will stop the dealer from claiming that the supplies which were stopped/suspended on and from 08.07.2008 need to be revived. In the instant case, there is nothing in the case file to demonstrate that claimant has made it clear that it is stated position of claimant that he would not seek restoration of dealership any where. In this view of the matter, this Court finds that the view taken by AT by applying Amritsar Gas Service case law, which was followed by a Hon'ble Division Bench of this Court in Bhagawan Balasai Enterprises Judgement is clearly not an implausible view and therefore, there is no scope for judicial intervention under Section 34 of A and C Act.
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21. This takes us to the next argument pertaining to termination notice (Ex.C12). A careful perusal of the termination notice dated 24.09.2010 (Ex.C12) brings to light that it talks about reconstitution of aforementioned firm M/s.Shanthi Super Service. A perusal of impugned termination notice and impugned award brings to light that reconstitution happened on 01.04.1990 by original partners being Hutchi Gowder and Krishnan. On and from 01.04.1990, Hutchi Gowder's son Thiagaraj and Hutchi Gowder's wife Mrs.Mary stepped in. The question is whether the firm has been able to produce a copy of reconstitution document which is required for the dealership to be continued and operated. This entire issue, as is evident from impugned award and case file placed before me has arisen because Hutchi Gowder has bequeathed this firm vide a testament to his grand son (claimant's son) and while doing so, Hutchi Gowder has appointed his three daughters as guardians of his grand son ignoring the father (claimant) though at the time of testament grand son was a minor. It is under these circumstances that in the impugned award, AT has gone into this question and taken the view that it may not be very relevant to go into Page No.18/29 https://www.mhc.tn.gov.in/judis/ O.P.Nos.402 & 708 of 2016 how Krishnan exited but how Mrs.Mary came in is of importance. This is captured in paragraph No.44 of impugned award which reads as follows:
'44. Until 2007 there was no dispute between the claimant and the respondent since the supply was continuously made by the respondent. Hence it is not necessary to go into the question as to when Mr.Krishnan retired and as to when Mr.H.Thiagarajan was inducted into partnership and whether the same was intimated to the respondent Corporation. One of the arguments advanced by the claimant was that Mr.Krishnan's retirement was known to the respondent since the officials of the respondent were regularly inspecting the premises and that they are aware of the facts. Instead of concentrating on Mr.Krishnan retirement it would be more relevant and useful to find out when Smt.Mary Ammal, was inducted into the partnership and later retired from partnership. It is seen from claim 16 of the claim statement that Mr.T.Prahalath Thiagaraj, the grandson of Mr.Hutchi Gowder, became proprietor of M/s.Shanthi Super Service. Para 16 of the Claim Statement is as follows:
"16. The claimant states that Mr.Prahalath Thyagarajan as the proprietor of M/s.Shanthi Super Services, Donnington Road, Kothagiri is entitled to unhindered supply of goods from the respondent, being the legitimate legal heir of the said Mr.Hutchi Gowder..........?
With respect to the reconstitution of the firm with Mrs.Mariyammal, Page No.19/29 https://www.mhc.tn.gov.in/judis/ O.P.Nos.402 & 708 of 2016 there is no document/proof filed before the Arbitrator to show that the respondent has consented to the same as per Clause 47 of the agreement. Similarly the Claimant has not produced/filed any evidence to show as to when Mr.T.Prahalath Thiagaraj, became the sole proprietor. In view of the same the respondent has contended that there is breach of the agreement leading to the termination of the dealership agreement under Clause 58. Therefore, I am of the view that the respondent has rightfully terminated the dealership agreement under Clause 58. The only argument advanced by the claimant is that the respondent Corporation are aware of the information and all the documents are with the corporation and they should have produced same before the Arbitrator. The counsel further emphasized that public sector undertakings has moral obligation to produce the same. Further the counsel for the claimant also fairly stated that they don't have any documents and hence they have not filed the same. It is also pertinent to point out that after the completion of the argument the Claimant filed two memos which are as follows:
Memo No.1 : Prayer by the claimant is to allow the application to reopen and mark the documents.
Memo No.2 : Prayer by the claimant is to receive and mark the document (i.e., communication dated 23.03.2009 exchanged between the IOC and the claimant).
The Respondent filed a counter opposing the admission of the above memos. After hearing the arguments memos were allowed and Page No.20/29 https://www.mhc.tn.gov.in/judis/ O.P.Nos.402 & 708 of 2016 documents were taken on record but the documents filed have no relevance to show that the claimant has intimated about the reconstitution of the firm and regarding the T.Prahalath becoming a proprietor. It is also relevant to point out that the claimant counsel vehemently relied on letter dated 07.11.2008 sent by the claimant outlet to the Corporation which is at Page 24 of the typed set. In that letter, the senior officer has made an endorsement which reads as follows:
"Please discuss more with Field Officer's report on the issue. Please meet Mr.Krishnan in person and inform the validity of the letter and also meet the legal heirs of Shri.Hutchi Gowder and give your report properly."
It is the argument of the Claimant that there should be a report by the respondent and the same should have produced before the Arbitrator and further he relied on the evidence of the RW1 to support his arguments. In the cross examination of the RW1 by the claimant he relied on the question and answer put to RW1, which are as follows:-
19. Have you produced a letter which you were referring to para 7 purported to have written by Mrs.Krishnan on 04.06.2008? Ans: No.
32. On 12.11.2011 some officer of your Corporation was called upon to meet Mr.Krishnan, do you have any report of such meeting? Ans: No.
44. Do you have any records addressed by Mr.Krishnan from 1985 to Page No.21/29 https://www.mhc.tn.gov.in/judis/ O.P.Nos.402 & 708 of 2016 2009, atleast one letter?
Ans: No.
45. Have you produced any of the letters before the Arbitrator of Mr.Krishnan from 1985 to 2009?
Ans: Not there.'
22. A careful perusal of Paragraph No.44 of impugned award (extracted and reproduced supra) in the light of controversy surrounding reconstitution which is the crux and gravamen of lis before AT, there is no difficulty in this Court unhesitatingly coming to the conclusion that the view taken by AT is clearly not an implausible view. After all it is necessary for AT to go into the question as whether the required reconstitution document was put in place as required by IOC and the other guidelines which govern the contract. This is the exercise which AT has done and therefore, one cannot find fault with the view taken by AT and this Court comes to the conclusion that there is no ground to judicially intervene qua impugned award on this aspect of the matter.
23. This takes us to the last argument pertaining to Rs.7.50 Lakhs towards alleviation of workmen. To be noted, argument is this is based on Page No.22/29 https://www.mhc.tn.gov.in/judis/ O.P.Nos.402 & 708 of 2016 no evidence/no pleadings. The argument of learned counsel for IOC was pitched on Ex.C18 dated 04.09.2008. It is the specific say of learned counsel for IOC that Ex.C18 was received much later at the time of argument and therefore it was not marked in a manner known to law. In this regard, what is of relevance is, Section 19(1) of A and C Act makes it clear that AT is not bound by Evidence Act. However, there is one other reason which makes it unnecessary and needless to dilate any further on this aspect of the matter. That reason which makes it unnecessary to dilate further on this aspect of the matter is Ex.C6. This is a complete answer to no evidence/no pleadings arguments as AT is not only not bound by Evidence Act, it is also not bound by 'Code of Civil Procedure 1908' ['CPC'] and only broad principles will be applicable. Ex.C6 is a communication dated 07.11.2008 written by Shanthi Super Service to IOC. This Ex.C6 being letter dated 07.11.2008 has been admitted in the memo of admission and denial of documents. A scanned reproduction of Memo of admission and denying reads as follows:Page No.23/29
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24. To be noted, this 07.11.2008 letter in S.No.6 in aforementioned Memo which has been extracted, scanned and reproduced supra. Ex.C6 also talks about the future of 11 employees alleviation of difficulties qua these workmen. Therefore, there was certainly some documentary evidence before AT with regard to alleviation of 11 workmen and in this view of the matter, this Court is unable to sustain the argument that Rs.7.50 Lakhs awarded towards alleviation of 11 workmen is based on no evidence, though relevant paragraph in impugned award refers to 04.09.2008 communication.
Relevant paragraph is 52 in the impugned award and this Court deems it unnecessary to burden this order by extracting and reproducing the same. Suffice to say that in this regard Hodgkinson principle comes into play. This Hodgkinson principle being a principle laid down by a English Court in Hodgkinson Vs. Fernie case reported in 140 ER 712 way back in 1857, was subsequently recognised by Indian Courts vide oft-quoted Associate Builders case i.e., Associate Builders Vs. Delhi Development Authority reported in (2015) 3 SCC 49. If one is to take a reductionist approach and resort to simplistic terms, Hodgkinson principle is to the effect that AT is Page No.26/29 https://www.mhc.tn.gov.in/judis/ O.P.Nos.402 & 708 of 2016 the best judge of quality and quantity of evidence before it. Therefore, considering the limited scope of intervention under Section 34 of A and C Act, more particularly, in the light of patent illegality ground available under Sub-Section (2A) of Section 34 prohibiting re-appreciation of evidence, this Court is of the view that there is no ground to judicially intervene with regard to Rs.7.50 Lakhs (for workmen difficulties alleviation) also. In this regard, it is to be noted that Senior OP was presented in this Court on 29.04.2016 and Junior OP was presented on 13.06.2016. This means that both captioned OPs were presented in this Court post 23.10.2015. If Ssangyong principle being dicta laid down by Hon'ble Supreme Court in Ssangyong Engineering and Construction Company Limited Vs. National Highways Authority of India reported in (2019) 15 SCC 131, is applied it is clear that both captioned OPs are governed by post 23.10.2015 regime of A and C Act or in other words, both captioned OPs are governed by A and C Act as amended by Act No.3 of 2016 which kicked in with retrospective effect on and from 23.10.2015. Therefore, patent illegality ground as available to protagonist of a OP under Section 34 can only be under Sub-Section (2A) and not patent illegality as Page No.27/29 https://www.mhc.tn.gov.in/judis/ O.P.Nos.402 & 708 of 2016 in Oil and Natural Gas Corporation Ltd. Vs. Saw Pipes Ltd., reported in (2003) 5 SCC 705. If it is patent illegality under Sub-Section (2A) of Section 34, the proviso to Sub-Section (2A) operates and it is a two limbed proviso. The two limbed proviso makes it clear that re-appreciation of evidence is forbidden. Therefore, this Court, on facts and circumstances of this case, is of the considered view that this is a fit case to apply this principle and say that re-appreciation of evidence being impermissible, there is no ground to judicially intervene qua this Rs.7.50 Lakhs compensation also.
25. In the light of narrative, discussion and dispositive reasoning articulated thus far supra, it follows that both protagonists i.e., protagonist of Senior OP and Junior OP, fail in their campaign against impugned award. In the result, both captioned OPs are dismissed. There shall be no order as to costs.
17.12.2020 Speaking/Non-speaking order Index : Yes / No Internet : Yes / No mk Page No.28/29 https://www.mhc.tn.gov.in/judis/ O.P.Nos.402 & 708 of 2016 M.SUNDAR.J., mk O.P.Nos.402 & 708 of 2016 17.12.2020 Page No.29/29 https://www.mhc.tn.gov.in/judis/