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It was further held that the appellant herein 'pushed in' some calculation sheets on the last date of hearing which was accepted by the arbitrator without assigning any reason and without prior intimation to the first respondent which amounted to misconduct on the part of the arbitrator. The Court further took into consideration the fact that the Union of India admittedly caused 1654 days' delay in accepting the designs and as the said admission was not taken into consideration by the arbitrator, that part of the award was vitiated.

Since the award of Rs.3,95,000/- by the sole arbitrator is inconsistent and is a misconduct, the order of the Arbitrator in respect of claim No.1 of 'B' claim of the Union of India in the award dated 6.3.1986 has to be set aside."

Aggrieved thereby three appeals being A.A.O. No. 364 of 1995, A.A.O. No. 366 of 1995 and A.A.O. No. 367 of 1995 were filed by the appellant against the order of District Court dated 21.2.1994 in O.P. No. 29/86, O.S. No. 31 of 1986 and O.S. No. 47/86 respectively.

The said clause could, thus, be invoked only on default on the part of the contractor and not otherwise.

Apart from the findings of the District Judge, as noticed hereinbefore, the High Court also came to conclusion that the contract could not have been terminated after the date of completion of work holding:

"...Misconduct as defined under Section 30 is not a moral lapse. If the Arbitrator on the face of the award arrives at an inconsistent conclusion, it would also amount to misconduct as per the decision reported in Poulose vs. State of Kerala (AIR 1975 SC 1259). Therefore, the finding of the learned District Judge that there is an inconsistent conclusion by the arbitrator who has admitted the delay on the part of the Government in my opinion well-founded. It is more so, when the Government has not chosen to set aside that portion of the award which implies that there is delay on the part of the Government."

The High Court further opined:

"Clause 54 of the agreement provides for utilization of the materials machinery., tackle etc. for completion of the incomplete work and sell the same at any time and appropriate the sale proceeds towards the loss which may arise from the cancellation of the contract. In the case on hand, the cancellation of the contract is after the expiry of the time contended for completion of the contract. The materials, machineries etc. were ordered to be returned to the contractor or pay the costs of the same to the contractor. The non-utlisation of the materials has not been taken into consideration by the Arbitrator. It is contended that no payment was made to the machineries and the contract was at liberty to take in back the machineries and therefore the non- utilisation of the materials cannot be said to be a conduct which would absolve the liability of the Government. But, this contention is not tenable since when the contractor has attempted to remove the materials on the work it has been prevented and a complaint has also been lodged with the police. Therefore, awarding certain sum towards loss sustained by the Government on account of the delay said to have been committed by the contractor, is inconsistent with the award granted in favour of the contractor to get back the materials or value thereof from the Government. When the order of the Arbitrator is inconsistent, it amounts to a misconduct. Therefore, the learned District Judge has rightly set aside the claim No.1 under 'B' claim of the Government and I am of the opinion that it is not a matter to be interfered with this Court."