K. P. POUI OSE STATE OF KERALA April 21 & Anr. v. Gupte & Ors.

The award with which we are concerned is a speaking one a!ld gives the reasons for the decision against the contractor. Mr. Gupte, the learned counsel for the appellant submits that the Arbitrator was guilty of legal misconduct in conducting the proceedings. He submitted that P. 16, were two very material document_s, Exts. P. l1 and in miscarriage absolutely ignored by the Arbitrator E of justice. On the other hand. ~r. Krishnamurthi Iyer submitted that these documents were not even marked before the Arbitrator; they were marked only before the Subordinate Judge. According to him, therefore, there is no foundation for the grievance. resulting We have been taken through all the relevant documents by learned counsel for both sides and we are satisfied that Ext. P. 11 and F Ext. P. 16 are material documents to arrive at a just and fair decision to resolve the controversy. between the Department and the contractor.

Jn the bac!cground of the controversy in this case even if the Depart ment did not produce these documents before the Arbitrator it was in cumbent upon him to get hold of all the relevant documents including Exts. P. 11 and P. 16 for the purpose of a just decision. Ext. P. 11 G dated September 8, J 966, is a communication from the Superintend ing Epgineer to the Chief Engineer with regard to the objections raised by Audit in connection with the construction of the reservoirs. The following extract will explain the position then taken by the Depart ment:- H "The contention of the Accountant General that jetting was resorted to by the contractor to facilitate the driving of the piles is not correct. Had it not been for jetting, it would not have been possible for the piles to reach the required -depth of 30', passing through sandy strata and we would have been constrained to stop with a smaller depth viz., upto the point of refusal for penetration of It was, therefore, in the interest the pile by ,hammering. • . - • • • , K. iP. POULOSE v.

KERALA (Goswami, !.) of the work that jetting was insisted upon by the Depart- mcnt for pile driving. The contractor had lo resort to jetting under instructions from tbe Departm~nt. · 217 . A T)lc Accountant General has stated that the department is not bound to pay extra for adopting the method of jetting for pile drivi11g. This does not appear correct since the method H of jetting was adopted in the interest of the department in view of the sandy stratum obtaining at the site as against the indication given by the department that the soil is clayey upto a depth of nearly 200 ft. No doubt, the con tractor was asked to ascertain the nature of the soil; but this docs not imply that he was to conduct exploratory borings to confirm the classification giveli. by the depart- C ment in the tender within the short span of time available for submitting tenders". Ell!lier also on July 25, 1966, as per Ext.

P. 16 the Executive En gineer had written to the Chief Engineer whcrefrom paragraph 4 is · revealing : "Even though while inviting tenders for the work there was a condilion that the tenderer should examine the soil con c!ition it was not expected of them to do soil testing in detail within the period available to them to tender for the work. A clear indication regarding the nature of the strata that is likely to be met with was also furnished at the time of inviting tenders. After complete soil investi gation the strata was found to be different from that fur nished by the department and so in my opinion technical specification has changed. In the circumstances jetting done by the contractor can be considered as an extra item". We now come to the Award. Although the Arbitrator has held that "jetting, however, is not an authorised extra covered by the agree ment", he has made the following significant observation which inconsistent with his conclusion that the contractor has no right for extra payment for the jetting : "The Chief Engineer has rejected the claims of the contractor on grounds of non-inclusion of this (jetting) in the agree ment which was executed subsequent to the direction issued by the department to adopt jetting.

The Chief Engineer's decision totally ignores the next sentence in that letter 'Meanwhile you may execnte the agreement'. By this sentence the issue of extra paylhent for jetting is left open even after the execution of the agreement". If the above is the conclusion of the Arbitrator, rejection of the claim on the ground that ''jetting, however, is not an authorised extra cover ed by the agreement" cannot be anything but rationally inconsistent. The award, therefore, suffers from a manifest error apparent ex facie. D E F G H 218 SUPREME COURT REPORTS [1975] SUPP. S.C.R. A Under section 30(a) of the Arbitration Act an award can be set aside when an Arbitrator has misconducted himself or the proceedings. Misconduct under section 30(a) has npt a connotation of moral lapse. It comprises legal misconduct which is complete if the Arbitrator on the face of the awattl arrives at an inconsistent conclusion even on his own finding or arrives at a decision by ignoring very material B documents which throw abundant light on the controversy to help a It is in this sense that the Arbitrator has mis just and fair decision. conducted the proceedings in this case.