Punjab-Haryana High Court
State Of Haryana And Anr. vs J.K. Jain on 14 July, 1987
Equivalent citations: AIR1989P&H24, AIR 1989 PUNJAB AND HARYANA 24, (1988) 1 CURCC 79, (1989) 1 ARBILR 284, (1987) 2 CURLJ(CCR) 533, 1987 REVLR 426, (1987) 92 PUN LR 309
ORDER
1. There was a contract between J. K. Jain and the Haryana Public Works Department, which contained an arbitration clause. On differences having arisen the matter was referred to the named Arbitrator who entered upon the reference and gave award dt. 28-2-1979. The award given was that nothing was payable to J. K. Jain. On application under Section 14 of the Arbitration Act, 1940 (for short 'the Act'), the award was filed in Court, against which J. K. Jain raised objections. The trial Court , considered the various points on merits of the dispute and came to the conclusion that the award was not liable to be set aside and dismissed the objections vide order dt. 31-8-1982, and made the award rule of the Court. J. K. Jain took up the matter in appeal and before the appellate Court assailed the legality of the award on the grounds that oath of affirmance was not administered to the witnesses, the statements were not read over and admitted to be correct by the witnesses, and that the signatures of the Arbitrator were not appended after the statement of each witness but were appended in the end of day's proceedings. Such evidence, according to the learned counsel, could not be relied upon by the Arbitrator, while determining the dispute and this amounted to legal misconduct and prayed that the award be set aside. The lower appellate Court accepted the argument and held that the Arbitrator recorded evidence in illegal manner and misconducted himself in the legal sense of the word and as a result set aside the award with a direction to the successor Superintending Engineer, Public Health, Circle, Sonepat, to enter into the reference and decide the controversy between the parties according to law, by order dt. 27-9-1985. This is revision by the State of Haryana.
2. Shri Sanjay Bansal, appearing for the State of Haryana, ably argued and contended that provisions of Section 3 read with R. 6 of Schedule First and Section 13 of the Act empower the Arbitrator to administer oath to the parties and wit nesses appearing, and it was in his discretion to administer oath or not but in case he did not administer oath or omitted to do so, it did not affect the admissibility of the statements of the witnesses nor the competency of the witnesses to make the statements. Reliance is placed on Rameshwar v. State of Rajasthan, AIR 1952 SC 54, in support of the aforesaid argument. Reliance is also placed on Rikhabdass v. Ballabhdas, AIR 1962 SC 551, para 9, for the proposition that Section 13 of the Act is only an enabling provision giving certain powers to the Arbitrator and the Arbitrator cannot be compelled to -exercise those powers. According to the learned counsel failure to administer oath is immaterial.
3. After considering the matter, I find merit in the aforesaid contention and hold that in view of the above said two Supreme Court decisions, Section 13 of the Act is an enabling provision and the Arbitrator cannot be compelled to exercise those powers and the failure or omission of the Arbitrator to administer oath did not invalidate the state ments of the witnesses and could be read in evidence. To this extent the order of the lower appellate Court cannot be sustained.
4. Although before the lower appellate Court, the legality of the award was challenged on three grounds but the lower appellate Court decided the matter only on the failure of administration of oath of affirmance to the witnesses and did not decide the other two matters. Therefore, it would be proper to remit the matter to the lower appellate Court to decide as to what is the effect of failure of the Arbitrator is not reading out the statements to the witnesses so as to admit the correctness of the statement and the failure of the Arbitrator in not appending his signatures after recording the statement of each witness on the award.
5. For the reasons recorded above this revision is allowed and after setting aside the order of the lower appellate Court, the matter is remitted to that Court for deciding the appeal afresh on the two points referred to above.
6. The parties through their counsel are directed to appear before the lower appellate Court on 21-8-1987.