State of Orissa vs Nityananda Samantarai

S. Acharya, J.—Dispute arose between both the parties to this appeal relating to 16 items of claim preferred by the Respondent against the Appellant. Both the parties referred the matter to Shri G.S. Panigrahi, Superintending Engineer, Eastern Circle for arbitration. Out of the 16 items of claim the arbitrator on hearing both the parties and on a consideration of the evidence adduced before him disallowed certain claims and partly allowed the claims in respect of the test. After the award was filed by the arbitrator in the Court below u/s 14(2) of the Arbitration Act, the Appellant filed an objection before the Court below challenging the award only so far as it relates to item No. 4, on the ground that ''there is error of law apparent on the face of record''. The Respondent filed his counter to the State''s objection and demanded payment of future interest on the amount assessed by the arbitrator. None of the parties adduced any evidence before the Court below, and the Court on hearing the parties rejected the Appellant''s aforesaid objection and made the award a rule of the Court. The Court also rejected the claimant''s demand for future interest. The State has preferred this appeal against the order of the Court below rejecting the State''s aforesaid objection and the Respondent has filed a cross appeal on the Court''s order rejecting the claimant''s demand for future interest.

Mr. Mohanty, the learned Counsel for the Appellant urged that the arbitrator in arriving at his finding did not take into consideration a letter of the Assistant Labour Commissioner. Rourkela to Shri S.P. Misra, Advocate, Keonjhar with the memo attached thereto which was filed before the arbitrator, and so his award suffers from an error of law apparent on the face of it. He further contends that the arbitrator misconducted himself by not taking into consideration the said material document.

The question of misconduct by the arbitrator was not alleged in the objection petition filed in the Court below nor urged by way of submission in that court, as is evident from the impugned order. In the memorandum of appeal in this Court no allegation of misconduct is alleged against the arbitrator. The award so far as it relates to item 4 was challenged only on the ground of error of law apparent on the face of it.

Mr. Mohanty could neither draw my attention to any document on record nor could he produce an authentic copy of the aforesaid letter mentioned by him in support of his above submission. No step was taken to call for the same or any other document from the Court below to show that the said or any other document supporting the Appellant''s contention was really filed before the arbitrator. The L.C.R. was received in this. Court since a long time, and if really any such document was filed before the arbitrator the Appellant''s counsel should have taken steps to call for that document to support the factual aspect of his above-mentioned contention. In the objection petition filed in the Court below particulars of the said letter was not stated. There is nothing in the impugned order to indicate that the Court''s attention was drawn to any such document at lease during the hearing of the object petition filed by the Appellant. There is nothing on record to show that any such document was ever filed before the arbitrator.

Mr. Roy, appearing for the Respondent produced before me a copy of letter dated 15th July, 1970 of the Assistant Labour Commissioner, Rourkela to Shri S.P. Misra, Advocate, Keonjhar with the memo No. 6493 dated 16-7-1970 attached thereto, and submitted that the Appellant possibly referred to this document. There in nothing in that document to support the Appellant''s contention.

Apart from the fact that the factual aspect on which the Appellant''s above-mentioned contention was based does not get any support from anything on record, the contention raised cannot be entertained on another ground.

Law is well settled that if a wrong proposition of law is stated in the award and the award is based on such erroneous proposition of law, then the award can be set aside or remitted on the ground of error of law apparent on the face of record. To make out a case of error of law apparent on the face of the record one should be able to show from the award itself that such an error of law is evident therefrom.

In N. Cheltappan v. Kerala State Electricity Board and Anr. AIR 1915 S.C. 130 their Lordships have held that:

The Court has no jurisdiction to investigate into the merits of the case and to examine the documentary and oral evidence on the record for the purpose of finding out, whether or not the arbitrator has committed an error of law.

Russell in his book on Arbitration (l7th Ed. p. 322) states:

Where an arbitrator makes a mistake either in law or in fact in determining the matters referred, but such mistake does not appear on the face of the award, the award is good not withstanding the mistake, and will nor be remitted or set aside. The general rule is that, as the parties choose their own arbitrator to be the judge in the disputes between them, they cannot, when the award is good on its face, object to his decision, either upon the law or the facts.

Item No. 4 of the Respondent''s claim against the Appellant is as follows:

Unauthorised deduction of Rs. 10, 500/ - made from the final bill of the claimant and expenditure for attending the Court etc. Rs. 15, 500/ -." The decision of the arbitrator in respect of this item of claim is as follows:

I am satisfied that the amount of Rs. 10,500/ - was unauthorisedly deducted from the final bill of the claimant. I allow this amount of Rs. 10, 500/ - to be paid to the claimant.

In the aforesaid decision of the arbitrator there is nothing on which one can say that there is an error of law on the face of the award. No proposition of law is stated in the award and there is nothing in the arbitrator''s decision on that item to show that it was based on any erroneous proposition of law. Mr. Mohanty states that if the arbitrator would have considered the above-mentioned document then he would not have arrived at the same finding. It is not for this Court to investigate into the merit of the said award on a fresh examination of the documentary and/or oral evidence on record. As the award does not suffer from any error apparent on the face of it, is not for me to probe deep into the matter by assessing a new the evidence adduced before the arbitrator. Mr. Roy, the learned Counsel for the Respondent, in course of argument, however, has asserted that a probe into the document filed before the arbitrator and/or an examination of the particular document referred to by the counsel for the Appellant would not in any manner enable anybody or any Court to arrive at any other decision or conclusion other than that arrived at by the arbitrator.

As I do not see any error of law apparent on the face of the award relating to item 4, and as nothing is shown to substantiate that comment, I do not see any merit in this appeal and it IS accordingly dismissed with costs.

The Respondent has preferred a cross-appeal against the Court''s order rejecting his prayer for granting future interest on the total amount awarded by the arbitrator. The Court of course has not given any reasoned order for rejecting the said prayer. All Courts, while exercising their discretionary power one way or the other on such matters, must state reasons for passing the said order, especially when a prayer to grant such a relief provided under the statute is made and is rejected by the Court. However, as the Court below took up that matter and did not feel inclined to grant the said prayer for interest, I do not, in this case, propose to interfere with the Court''s order to that effect. Accordingly the cross-appeal is rejected, but without costs