Union Of India vs Recon

CONTENTS

SN NO DESCRIPTION PARAS

A Background 1

B The Position in Law under Section 34 2â€"20

C The Contract in Question 21â€"23

D The Claims in Arbitration and Summary of the Award 24

E The Award 25â€"26

F The Challenge to the Award 27â€"43

I Claims Nos 7 to 9 29â€"34

II Claim No 12 35â€"43

G Conclusion 44â€"47

A. BACKGROUND

The Petitioner is the Union of India through the postal department. The Petition is under Section 34 of the Arbitration & Conciliation Act, 1996. The

Union of India challenges part of an arbitral award dated 24th July 2019; specifically, the Award made against the Union of India on claims nos. 7, 8, 9

and 12. By consent, the Petition is taken up for final disposal at the stage of admission.

B. THE POSITION IN LAW UNDER SECTION 34

It is necessary to first identify precisely which of the permissible avenues of recourse under Section 34 are invoked by the Petitioner in this

challenge. Mr Sharma for the Petitioner identifies two such: that (to the extent of the challenge), the Award (1) suffers from perversity; and (2) that it

is vulnerable on the ground of patent illegality.

Mr Sharma positioning of his case in this way demands a delineation of the law as it stands today on both aspects. First, the relevant portions of

Section 34: Incorporating the amendments introduced by Act 3 of 2016, with effect from 23rd October 2015. These amendments are shown in square

brackets.

Application for setting aside arbitral award.â€

(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2)

and sub-section (3).

(2) An arbitral award may be set aside by the Court only ifâ€

(a) the party making the application furnishes proof thatâ€

(i) a party was under some incapacity, or

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the

time being in force; or

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise

unable to present his case; or

(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions

on matters beyond the scope of the submission to arbitration:

Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award

which contains decisions on matters not submitted to arbitration may be set aside; or

(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement

was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part;

or

(b) the Court finds thatâ€

(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or

(ii) the arbitral award is in conflict with the public policy of India.

[Explanation 1.â€"For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,â€

(i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or

(ii) it is in contravention with the fundamental policy of Indian law; or

(iii) it is in conflict with the most basic notions of morality or justice.

Explanation 2.â€"For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a

review on the merits of the dispute.]

[(2A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court

finds that the award is vitiated by patent illegality appearing on the face of the award:

Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence.]

(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had

received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral

tribunal:

Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three

months it may entertain the application within a further period of thirty days, but not thereafter.

(4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings

for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action

as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.

[(5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be

accompanied by an affidavit by the applicant endorsing compliance with the said requirement.

(6) An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice

referred to in sub-section (5) is served upon the other party.]

(Emphasis added)

The reason for clearly identifying the amendments to this section is this: the unamended section was entirely dissected and explained in depth by the

Supreme Court in Associate Builders v Delhi Development Authority, (2015) 3 SCC 49. a decision of 25th November 2014, just under a year before

the 2015 amendments. As we shall presently see, the Supreme Court more recently in its 8th May 2019 decision in Ssangyong Engineering &

Construction Co Ltd v NHAI (2019) 15 SCC 131. explained how the 2015 amendment changed the statutory terrain.

An understanding of this legislative and judicial metamorphosis is crucial. Before an argument can be canvassed for a court’s consideration, it

must be shown to sit firmly within the confines of what is now permissible. In Associate Builders, different facets â€" ‘patent illegality’,

‘perversity’, ‘public policy’ and others â€" all received a minute scrutiny. Fundamental to the fashioning of every arbitral award, the

Associate Builders court said, is that it must display a judicial approach: the decision must be fair, it must be reasonable and it must be objective.

Anything arbitrary or whimsical would fail this test. Associate Builders, supra, paragraph 29 of the SCC report. Fairness speaks to even-handedness in

conduct and treatment of parties, See Section 18 of the Act. and neutrality in approach. It might overlap the third requirement of objectivity.

Reasonableness is perhaps better defined by what it is not, and cannot be. Discussing the principles underlying the overarching concept of ‘public

policy’, and with reference to the evolution of the law since ONGC Ltd v Saw Pipes Ltd, (2003) 5 SCC 70.5 the Associate Builders decision

examined juristic principles. It identified three, drawing on the decision in ONGC Ltd v Western Geco International Ltd. (2004) 9 SCC 263. The first is

the judicial approach mentioned earlier and the prohibition of anything arbitrary, capricious or whimsical. The second is fidelity to fundamental

principles of natural justice: the audi alteram partem rule, the uncompromising requirement of a demonstration of application of mind, something best

achieved by giving reasons. The third facet has its roots in administrative law. The decision cannot be perverse or irrational. Western Geco amplified

this by adopting what is now called the ‘Wednesbury unreasonableness’ test: Associated Provincial Picture Houses Ltd v Wednesbury Corpn,

(1948) 1 KB 223 : (1947) 2 All ER 680 (CA) the decision must not be one that no reasonable person could have arrived at it. There was, therefore, a

direct line between the ‘reasonableness’ requirement of a judicial approach and one of the juristic principles underlying public policy, viz., that

the decision must not be perverse, and must not fail the Wednesbury unreasonableness test. The Western Geco enunciation was approved in

Associate Builders; and both courts said that these jurisprudential distillations cannot possibly exhaust the universe of possibilities, nor are they lexically

constrained. The consequence of applying these tests was portrayed in paragraph 40 of Western Geco when it said that should the arbitral tribunal be

found to have failed to draw an inference it ought to have drawn, or drawn an inference that is ex facie untenable resulting in the miscarriage of

justice, then notwithstanding that the arbitral tribunal has wide latitude in its decision-making process, any such award would be vulnerable. It might be

set aside, or the offending portion might, if possible, be severed.

Associate Builders went on to explain the dimensions of the juristic principle that demands that there be no perversity or irrationality. Where a

finding is based on evidence; or where the tribunal takes into account something irrelevant to its decision; or where vital evidence is ignored in arriving

at the decision; then the decision is said to be ‘perverse’. What is the test to determine if a decision is ‘perverse’? In paragraph 32 of

Associate Builders, the Supreme Court explained:

A good working test of perversity is contained in two judgments. In Excise and Taxation Officer-cum-Assessing Authority v Gopi Nath & Sons

[1992 Supp (2) SCC 312], it was held: (SCC p. 317, para 7)

“7. … It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant

material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is

rendered infirm in law.â€​

In Kuldeep Singh v Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429], it was held: (SCC p. 14, para 10)

“10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived

at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is

some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated

as perverse and the findings would not be interfered with.â€​

(Emphasis added)

This takes us to the next aspect, that of ‘patent illegality’. Again, Associate Builders explained this as a fourth head of public policy. This was

dimensioned to include, of course, fraud and corruption, but also (and in the words of at least one court, ‘regrettably’), an error of law on the

face of the award or upon some paper accompanying and forming part of the award â€" that is to say, an erroneous legal proposition which forms the

basis of the award. Associate Builders said that under the 1996 Act (and it was considering that Act before its 2015 amendment), the ‘patent

illegality’ principle had three sub-heads: (1) a contravention of the substantive law of India, not being trivial but being fundamental to the award;

(2) a contravention of the Arbitration Act itself; and (3) being contrary to the terms of the contract and violating Section 28(3). The third was again

pegged to the reasonableness standard: an arbitrator’s construction of the contract, if reasonable, is inviolate, for the construction of a contract is

primarily for the arbitrator to decide. It is only if that construction is unreasonable will a court intercede.

What Associate Builders had before it in November 2014 was therefore a steady expansion of the scope for judicial interference from Saw Pipes

to Western Geco. The Associate Builders court brought together in one place the very many strands of judicial thinking to give these principles both

coherence and cohesion, read as a whole. Importantly, drawing on precedent and settled law, ‘perversity’ was positioned under the ‘public

policy’ principle.

The scene shifts to 8th May 2019, when the Supreme Court rendered its decision in Ssangyong Engineering. By this time, the statutory landscape

had altered dramatically; and this was due, in no small part, to legislative changes effected on the basis of recommendations in a series of reports from

the Law Commission of India.

Ssangyong Engineering was an archetypal highway construction contract. The disputes, the details of which are set out in the judgment, led to a

domestic arbitration and a 2016 challenge under Section 34. That challenge failed. So did an appeal under Section 37. A threshold question arose

whether the radical changes effected by the 2015 amendment would or would not apply to this case. The Supreme Court held that the amendments

would apply:

There is no doubt that in the present case, fundamental changes have been made in the law. The expansion of “public policy of India†in

ONGC Ltd v Saw Pipes Ltd., (2003) 5 SCC 70 5[“Saw Pipesâ€] and ONGC Ltd v Western Geco International Ltd, (2014) 9 SCC 263

[“Western Gecoâ€] has been done away with, and a new ground of “patent illegalityâ€, with inbuilt exceptions, has been introduced. Given this,

we declare that Section 34, as amended, will apply only to Section 34 applications that have been made to the Court on or after 23.10.2015,

irrespective of the fact that the arbitration proceedings may have commenced prior to that date.

(Emphasis added)

The Ssangyong Engineering Court then went back to Associate Builders and the position before 2015. It then looked at the changes wrought to

Section 34 and Section 48 (for foreign awards). It recognized that Saw Pipes had introduced the ‘patent illegality’ concept to the public policy

dimension to the three-fold explanation earlier provided. In Renusagar Power Co Ltd v General Electric Co, 1994 Supp (1) SCC 64.4 The three public

policy determinants were (i) the fundamental policy of Indian law; (ii) the interest of India; and (iii) justice or morality. Thus: before the 2015

amendment, an award (i) contrary to substantive law; (ii) contrary to the Arbitration Act; (iii) contrary to the contractual terms; or (iv) patently illegal,

was vulnerable. It could also be set aside as being contrary to (i) the fundamental policy of Indian law; (ii) the interest of India; or (iii) justice or

morality. But in addition, it could also be set aside for being so unfair or unreasonable that it shocked the judicial conscience; and, yet further, that it

was open to a court to see if it was contrary to the terms of the contract and hence patently illegal and thus opposed to the public policy of India.

DDA v RS Sharma & Co, (2008) 13 SCC 80.

Ssangyong Engineering then explicitly recognized the Western Geco expansion of the public policy dimension under Section 34; Ssangyong

Engineering, supra, paragraph 24. specifically the adaptation of the Wednesbury unreasonableness test drawn from administrative law.

Then Ssangyong Engineering said that fundamental changes were effected to the Arbitration Act pursuant to the 246th report of the Law

Commission of India. These included changes to Sections 28, 34 and 48 of the Arbitration Act. The change to Section 28 was specifically to overrule

the effect of Saw Pipes. The changes in Section 34, and in particular Explanation II to Section 34(2)(b) was for conformity withR enusagar Power Co

Ltd v General Electric Co 1994 Supp (1) SCC 64.4 and Shri Lal Mahal v Progetto Grano Spa, (2014) 2 SCC 43.3 in respect of both domestic and

foreign awards. Then the Report proposed Section 34(2-A) to provide for an ‘additional, albeit carefully limited, ground’. This was an adoption

of the patent illegality standard in Saw Pipes. The 246th Law Commission report was of August 2014.

Then came Western Geco, decided on 4th September 2014, and this was followed by a Supplementary Report of the Law Commission in

February 2015. That Supplementary Report said that the Law Commission’s 246th Report had provided for a narrow standard â€" the mere

violation of the law of India would not be a violation of the public policy for international commercial arbitrations held in India. The Supplementary

Report addressed itself specifically to the Western Geco expansion (the adoption into the ‘public policy’ dimension of Wednesbury-level

unreasonableness). This, the Law Commission said, would allow a review of the arbitral award on merits on the ground that it violated public policy.

The Supplementary Report specifically advocated that a merit-based review of an arbitral award is contrary to the object of the Arbitration Act and to

international practice.

This led to the 23rd October 2015 amendments to the Arbitration Act. The Ssangyong Engineering Court then put it like this:

(a) “Public policy of Indiaâ€, whether in Section 34 or Section 48 means the ‘fundamental policy of Indian law’ as explained in paragraphs

18 and 27 of Associate Builders. This is a return to the Renusagar position: violation of (i) the fundamental policy of Indian law; (ii) the interest of

India; and (iii) justice or morality. Ssangyong Engineering, supra, paragraphs 34 and 36.

(b) The Western Geco expansion, i.e. the requirements of a judicial approach (as interpreted in Western Geco) and placing ‘unreasonableness’

in the ‘public policy’ head, is now a thing of the past. And therefore paragraphs 28 and 29 of Associate Builders would no longer obtain. To do

so would be to enter impermissibly into a merit-based review of an arbitral award.

(c) Violations of principles of natural justice continue to be a ground for interference. Arguably, though, this would not be on ‘merits’ strictly

speaking, so much as a question of procedure and a violation of the equal-treatment standard.

(d) “The interest of Indiaâ€​ does not survive as a ground for challenge. Ssangyong Engineering, supra, paragraphs 35 and 36.

(e) The ‘justice or morality’ standard is now to be viewed as a test of whether the award violates ‘the most basic notions of morality or

justice’, in accord with paragraphs 36 to 39 of Associate Builders â€" the award must shock the judicial conscience to admit of interference on

this ground. Ssangyong Engineering, supra, paragraph 35.

(f) Domestic awards must now survive an additional test: that set out in Section 34(2A), the ‘patent illegality’ standard. This must be a facially

patent illegality. It cannot be an erroneous application of the law. A backdoor entry is not permitted: a ground not within ‘the fundamental policy of

Indian law’ â€" the contravention of a statute unlinked to public policy or public interest â€" cannot slither in under the ground of ‘patent

illegality’. Ssangyong Engineering, supra, paragraph 37.

(g) If I may be permitted a brief digression at this stage, it seems to me that there is a subtle but very real distinction between ‘an erroneous

application of the law’ and an ‘incorrect invocation of the law’. The simplest example should suffice: ignoring a binding decision of a

superior court is not an erroneous application of the law. It is a ground of patent illegality, because it does not state the law correctly. But an award

that correctly states the law is not vulnerable because its application of that (correctly stated) law to the contractual dispute is said (or even shown) to

be erroneous. I will return to this briefly a little later.

(h) Patent illegality does not extend to a re-appreciation of evidence. Only an appellate court can do that. A Section 34 court cannot. It is not an

appellate court. Ssangyong Engineering, supra, paragraph 38.

(i) A mere contravention of substantive Indian law is no longer a ground to set aside an arbitral award. Ssangyong Engineering, supra, paragraph 39.

Therefore, paragraph 42.1 of Associate Builders no longer obtains.

(j) But an award with no reasons is a violation of Section 31(3) of the Arbitration Act and constitutes a patent illegality. Paragraph 42.2 of Associate

Builders stands. Ssangyong Engineering, supra, paragraph 39.

(k) The interpretation and construction of a contract is primarily for the arbitrator to decide. If the tribunal does so in a way no fair-minded or

reasonable person would â€" that is, the arbitrator’s view is not even minimally a possible one â€" or if he wanders outside the contract and deals

with mattes not assigned to him (for instance, in a dispute about a leave and license agreement considering whether a particular communication is

defamatory and awarding damages or an injunction), then the award is vulnerable as a jurisdictional error within Section 34(2A). Ssangyong

Engineering, supra, paragraph 40.

(l) ‘Perversity’, as understood in paragraphs 31 and 32 of Associate Builders, is no longer under the ‘public policy of India’ head. Yet it

continues to exist. It is now re-positioned to fall under the ‘patent illegality appearing on the face of the award’ head. This would include: a

finding based on no evidence at all; an award which ignores vital evidence in arriving at its decision; or, say, a finding based on documents taken

behind the back of the parties. Ssangyong Engineering, supra, paragraph 41.

(m) The patent illegality standard is unavailable for international commercial arbitrations. Ssangyong Engineering, supra, paragraph 42.

(n) Section 34(2)(a) does not permit a challenge to an arbitral award on merits. Ssangyong Engineering, supra, paragraphs 43â€"48.

But Ssangyong Engineering still makes demands of us. How do we reconcile the permissibility of a challenge on the ground that it violates the

‘fundamental policy of Indian law’ with the proscription against entertaining a challenge on ‘the erroneous application of law’?

16.1 One answer is to say, as I have just done, that there is a distinction between an incorrect invocation of the law (citing an overruled decision or a

repealed statute, or ignoring binding precedent or a current legislation), and a correct invocation but an apparently inaccurate application of that to the

facts at hand. Did it invoke the law correctly but apply it erroneously? If so, no challenge lies. If the law is incorrectly invoked â€" and, particularly, if

binding precedent of a superior court is ignored â€" then a challenge lies. Paragraph 27 of Associate Builders makes this plain, when it reiterates the

Renusagar formulation; and Ssangyong Engineering in paragraphs 35 and 37 reiterates that paragraphs 18 and 27 of Associate Builders continue to be

good law.

Paragraph 27 of Associate Builders says:

Coming to each of the heads contained in Saw Pipes [(2003) 5 SCC 705 : AIR 2003 SC 2629] judgment, we will first deal with the head

“fundamental policy of Indian lawâ€. It has already been seen from Renusagar judgment that violation of the Foreign Exchange Act and

disregarding orders of superior courts in India would be regarded as being contrary to the fundamental policy of Indian law. To this it could be added

that the binding effect of the judgment of a superior court being disregarded would be equally violative of the fundamental policy of Indian law.

Paragraph 36 of Ssangyong Engineering says:

Thus it is clear that public policy of India is now constricted to mean firstly, that a domestic award is contrary to the fundamental policy of Indian

law, as understood in paragraphs 18 and 27 of Associate Builders (supra) ...

(Emphasis added)

16.2 Another approach is to parse the statute or law being invoked. Not every single statutory provision speaks to the ‘fundamental policy of Indian

law’. That violation must lie at the root. There is no fixed formulation, and some illustrations must suffice. For instance: to accept as good

evidence a statement dubbed an ‘admission’ but denying an opportunity sought to explain that admission, may, in the facts of a case, be said to

violate the fundamental policy of Indian law. Proceeding on a contract that is void, or upholding a transaction rendered void by statutory fiat, may

similarly be against the fundamental policy of Indian law. In a specific performance action, insisting on an averment of readiness and willingness in

though this is no longer mandatory by virtue of a statutory amendment is conceivably not against the ‘fundamental’ policy of Indian law; but

granting specific performance without any proof at all of readiness and willingness would be so covered.27

16.3 Therefore, while assessing a challenge on this ground, and while steering clear of a proscribed merit-based review, a balance must be struck. A

Section 34 court will have to see what it is precisely the arbitral tribunal did in regard to the law and policy involved.

16.4 Also, this is why paragraph 37 of Ssangyong Engineering tells us that if a challenge cannot lie under the ‘fundamental policy of Indian law’

head, it cannot make a backdoor entry under the ‘patent illegality’ head; and Mr Sharma does indeed place his case under ‘patent

illegality’.

27 A decision of the Supreme Court delivered today in Vijay Karia & Ors v Pryssmian Cavi E Sistemi SRL & Ors (now reported in 2020 SCC

OnLine SC 177; paragraph 91) for instance, tells us that a FEMA violation does not render the underlying transaction void (unlike the earlier Section

47 of FERA). Post-facto permission is possible. A challenge cannot, therefore, be laid on the basis that the alleged FEMA violation is against the

‘fundamental policy of Indian law’.

16.5 It is for this reason, too, that paragraph 39 of Ssangyong Engineering says that the earlier formulation in paragraph 42.1 of Associate Builders will

no longer hold good: a mere contravention of the substantive law of India is, by itself, no longer a ground available to set aside an arbitral award. It is

neither violative of the fundamental policy of Indian law nor a patent illegality.

16.6 Although Mr Sharma has not directly placed his arguments on the basis of a violation of the fundamental policy of Indian law, the question

squarely arises, for, as we shall see, the learned Sole Arbitrator applied the principles of Sections 55, 73 and 74 of the Contract Act. These are in the

context of the limited challenge Mr Sharma presents. Hence, if the award can be said to be against the fundamental policy of Indian law in regard to

(i) time being of the essence; or (ii) requiring proof of damages and loss, then there would be a vulnerability; otherwise not.

The second demand Ssangyong Engineering makes of us is in regard to the so-called Western Geco expansion. Ssangyong Engineering tells us

that this has been done away with, Ssangyong Engineering, supra, paragraph 34. and therefore, the following paragraphs 28 and 29 of the Associate

Builders ‘would no longer obtain’:

In a recent judgment, ONGC Ltd v Western Geco International Ltd [(2014) 9 SCC 263 : (2014) 5 SCC (Civ) 1,2 t]his Court added three other

distinct and fundamental juristic principles which must be understood as a part and parcel of the fundamental policy of Indian law. The Court held:

(SCC pp. 278-80, paras 35 & 38-40)

“35. What then would constitute the ‘fundamental policy of Indian law’ is the question. The decision in ONGC [(2003) 5 SCC 705 : AIR

2003 SC 2629] does not elaborate that aspect. Even so, the expression must, in our opinion, include all such fundamental principles as providing a basis

for administration of justice and enforcement of law in this country. Without meaning to exhaustively enumerate the purport of the expression

‘fundamental policy of Indian law’, we may refer to three distinct and fundamental juristic principles that must necessarily be understood as a

part and parcel of the fundamental policy of Indian law. The first and foremost is the principle that in every determination whether by a court or other

authority that affects the rights of a citizen or leads to any civil consequences, the court or authority concerned is bound to adopt what is in legal

parlance called a ‘judicial approach’ in the matter. The duty to adopt a judicial approach arises from the very nature of the power exercised by

the court or the authority does not have to be separately or additionally enjoined upon the fora concerned. What must be remembered is that the

importance of a judicial approach in judicial and quasi-judicial determination lies in the fact that so long as the court, tribunal or the authority exercising

powers that affect the rights or obligations of the parties before them shows fidelity to judicial approach, they cannot act in an arbitrary, capricious or

whimsical manner. Judicial approach ensures that the authority acts bona fide and deals with the subject in a fair, reasonable and objective manner

and that its decision is not actuated by any extraneous consideration. Judicial approach in that sense acts as a check against flaws and faults that can

render the decision of a court, tribunal or authority vulnerable to challenge.

***

Equally important and indeed fundamental to the policy of Indian law is the principle that a court and so also a quasi-judicial authority must, while

determining the rights and obligations of parties before it, do so in accordance with the principles of natural justice. Besides the celebrated audi alteram

partem rule one of the facets of the principles of natural justice is that the court/authority deciding the matter must apply its mind to the attendant facts

and circumstances while taking a view one way or the other. Non-application of mind is a defect that is fatal to any adjudication. Application of mind

is best demonstrated by disclosure of the mind and disclosure of mind is best done by recording reasons in support of the decision which the court or

authority is taking. The requirement that an adjudicatory authority must apply its mind is, in that view, so deeply embedded in our jurisprudence that it

can be described as a fundamental policy of Indian law.

No less important is the principle now recognised as a salutary juristic fundamental in administrative law that a decision which is perverse or so

irrational that no reasonable person would have arrived at the same will not be sustained in a court of law. Perversity or irrationality of decisions is

tested on the touchstone of Wednesbury [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER 680

(CA)] principle of reasonableness. Decisions that fall short of the standards of reasonableness are open to challenge in a court of law often in writ

jurisdiction of the superior courts but no less in statutory processes wherever the same are available.

It is neither necessary nor proper for us to attempt an exhaustive enumeration of what would constitute the fundamental policy of Indian law nor is

it possible to place the expression in the straitjacket of a definition. What is important in the context of the case at hand is that if on facts proved

before them the arbitrators fail to draw an inference which ought to have been drawn or if they have drawn an inference which is on the face of it,

untenable resulting in miscarriage of justice, the adjudication even when made by an Arbitral Tribunal that enjoys considerable latitude and play at the

joints in making awards will be open to challenge and may be cast away or modified depending upon whether the offending part is or is not severable

from the rest.â€​

(emphasis in original)

It is clear that the juristic principle of a “judicial approach†demands that a decision be fair, reasonable and objective. On the obverse side,

anything arbitrary and whimsical would obviously not be a determination which would either be fair, reasonable or objective.

17.1 The Western Geco expansion, as adopted in Associate Builders, had these components as part of the ‘fundamental policy of Indian law’

concept: (i) a judicial approach; (ii) the need for reasons and (iii) Wednesbury reasonableness, or, to put it differently, the absence of irrationality and

perversity. ‘Judicial approach’ in turn had, from Western Geco, these elements: fairness, reasonableness and objectivity; and no arbitrariness,

whimsicality or caprice.

17.2 Paragraph 34 of Ssangyong Engineering says that the ‘judicial approach’ test is no longer available. It would amount to a merit-based

review or intervention, and this is now impermissible after the 2015 amendment.

17.3 But we must link paragraph 34 to paragraphs 39, 41 and 42 of Ssangyong Engineering The paragraph numbers are from the final report in (2019)

15 SCC 131. There is some difference in paragraph numbering between that report and the earlier one in 2019 SCC Online SC 677 while considering

the newly introduced ‘patent illegality’ head under Section 34(2-A). These are the relevant paragraphs of Ssangyong Engineering:

What is clear, therefore, is that the expression “public policy of Indiaâ€, whether contained in Section 34 or in Section 48, would now mean the

“fundamental policy of Indian law†as explained in paras 18 and 27 of Associate Builders i.e. the fundamental policy of Indian law would be

relegated to “Renusagar†understanding of this expression. This would necessarily mean that Western Geco expansion has been done away with.

In short, Western Geco, as explained in paras 28 and 29 of Associate Builders, would no longer obtain, as under the guise of interfering with an award

on the ground that the arbitrator has not adopted a judicial approach, the Court’s intervention would be on the merits of the award, which cannot

be permitted post amendment. However, insofar as principles of natural justice are concerned, as contained in Sections 18 and 34(2)(a)(iii) of the 1996

Act, these continue to be grounds of challenge of an award, as is contained in para 30 of Associate Builders.

…

To elucidate, paragraph 42.1 of Associate Builders, namely, a mere contravention of the substantive law of India, by itself, is no longer a ground

available to set aside an arbitral award. Para 42.2 of Associate Builders, however, would remain, for if an arbitrator gives no reasons for an award

and contravenes Section 31(3) of the 1996 Act, that would certainly amount to a patent illegality on the face of the award.

The change made in Section 28(3) by the Amendment Act really follows what is stated in paras 42.3 to 45 in Associate Builders, namely, that the

construction of the terms of a contract is primarily for an arbitrator to decide, unless the arbitrator construes the contract in a manner that no fair-

minded or reasonable person would; in short, that the arbitrator’s view is not even a possible view to take. Also, if the arbitrator wanders outside

the contract and deals with matters not allotted to him, he commits an error of jurisdiction. This ground of challenge will now fall within the new

ground added under Section 34(2-A).

What is important to note is that a decision which is perverse, as understood in paras 31 and 32 of Associate Builders, while no longer being a

ground for challenge under “public policy of Indiaâ€​, would certainly amount to a patent illegality appearing on the face of the award.

Thus, a finding based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set

aside on the ground of patent illegality. Additionally, a finding based on documents taken behind the back of the parties by the arbitrator would also

qualify as a decision based on no evidence inasmuch as such decision is not based on evidence led by the parties, and therefore, would also have to be

characterised as perverse.

(Emphasis added)

17.4 This yields the following result:

(i) A lack of a ‘judicial approach’, being the Western Geco expansion, is not available per se as a ground of challenge.

(ii) A violation of the principles of natural justice is a ground for challenge as one under Section 18 read with Section 34(2)(a)(iii) â€" that is to say, not

under the ‘fundamental policy’ head nor the ‘patent illegality’ head, but distinctly under this sub-section. 34(2)(a)(iii): the party making the

application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case.

(iii) A lack of reasons is a patent illegality under Section 34(2-A).

(iv) In interpreting the contract, the arbitral view must be fair-minded and reasonable. If the view is one that is not even possible, or if the arbitrator

wanders beyond the contract, that would amount to a ‘patent illegality’.

(v) ‘Perversity’ as understood in Associate Builders, is now dishoused from ‘fundamental policy’ (where Western Geco put it), and now

has a home under ‘patent illegality’. This includes:

(A) a finding based on no evidence at all;

(B) an award that ignores vital evidence; and

(C) a finding based on documents taken behind the back of the parties.

I believe this is not an exhaustive listing.

Combining (iv) and (v) above, therefore, while the explicit recognition or adoption of the Wednesbury unreasonableness standard (introduced in

Western Geco) is probably done away with, there is even yet a requirement of reasonableness and plausibility in matters of contractual interpretation.

If the interpretation of the contract is utterly unreasonable and totally implausible â€" the view taken is not even possible â€" a challenge lies.

Therefore: an award that was impossible either in its making (by ignoring vital evidence, or being based on no evidence, etc) or in its result (returning a

finding that is not even possible), then a challenge on the ground of ‘perversity’ lies under Section 34(2-A) as a dimension of ‘patent

illegality’.

It is in Ssangyong Engineering that we see an explicit acceptance of an underlying principle, one that has long informed thinking globally in the

context of international arbitrations: the impermissibility of a merit-based review of an arbitral decision. In the case at hand, I am not concerned with

the other challenges such as those under Section 34(2)(a)(iii) and (iv), and Explanation I to 34(2)(b)(iii) (“most basic notions of justiceâ€).

Ssangyong Engineering contains a comprehensive delineation of the juristic principles on all these aspects. To put it in a nutshell: the previous

expansiveness of judicial interference in challenges to arbitral awards has been eliminated. Merit-based interference is proscribed. This means, of

course, that it is not permissible to set aside an award merely because on the merits another view was possible, or even preferable; or, as we saw, a

correctly invoked and stated law was erroneously applied. There can be no re-appreciation of evidence. A reasonable and fair interpretation of the

contract will invite no interference. It therefore now must behove a Section 34 court to say, “Perhaps this award before me is not done as I might

have done it. I might have preferred another, or even opposing, view. But neither is in itself a permissible reason to interfere.†This is so because the

window of recourse, previously being widened, has now shrunk. And that is not only as it should be, but as the statute would now have it. The entire

ethos of arbitration as an alternative dispute resolution mechanism, one essentially private and contract-based, is founded in this quaternion: contractual

fidelity; speedy disposal; finality; enforcement.

This analysis must be my guide, and Mr Sharma’s. It sets out clearly the task he faces. When, therefore, he claims there is perversity, it must

be shown under the patent illegality head. For, as we have seen, perversity is now a facet of patent illegality.

With this, I now turn to the contract and the award.

C. THE CONTRACT IN QUESTION

This is a story about the construction of a post office and a tree that came in the way.

The Union of India floated a tender for the construction of a post office building and staff quarters at Bandra (West). The Respondent, Recon,

formerly Shakti Contracting Company, put in the winning bid. On 19th March 2008, the Union of India awarded the contract to Recon. Clause 25 has

the arbitration provision. There is no dispute about this clause.

Work was to commence on 2nd April 2008. It was to be completed in 14 months, by 1st June 2009 i.e. 14 months. It was actually completed very

much later â€" only on 25th January 2016. Recon delivered the cleared site to the Union a year later, on 6th January 2017. According to the Union of

India, it paid the final bill on 31st March 2018 after taking into account an extension of time of 1211 days.

D. THE CLAIMS IN ARBITRATION AND SUMMARY OF THE AWARD

Dissatisfied with the payment it received, Recon raised additional demands and, by its letter of 14th April 2018 to the Chief Engineer (Civil)

Works, DOP, New Delhi, sought the appointment of an arbitrator under clause 25 of the Agreement. On 15th May 2018, the Chief Engineer

appointed VK Jain, Retired Chief Engineer (Civil), P&T Building Works (Gr A) as the sole arbitrator. He filed his statement of disclosure. There was

no opposition to his appointment. Mr Jain entered upon the reference to his arbitration on 9th July 2018. The parties completed pleadings before Mr

Jain and filed their respective documents. Mr Jain heard both sides and considered the material on record. Before him, Recon presented 14 claims.

E. THE AWARD

Mr Jain made and published his award on 24th July 2019. In summary:

(a) Claim 1 before him had four subsidiary components. He rejected two and allowed two in part.

(b) He also rejected entirely claims 2, 3, 10, 11 and 13.

(c) Claim 6 was settled during the course of the arbitration. Paper book, p. 806.

(d) He allowed claims 4, 5, 7 to 9 and 12.

(e) The total awarded was Rs. 22,19,803, and 9.5% simple interest on Rs 20,74,748/- (the total amount less the award under Claims 4 and 5) from the

date of invocation until the date of the award, and interest at 10.5% per annum from the date of the award until payment, unless full payment was

made within 90 days. The learned Sole Arbitrator referenced Hyder Consulting (UK) Ltd v State of Orissa, (2015) 2 SCC 18 9in regard to post-

Award interest.

As regards Claims 7â€"9 and 12, the only ones under challengeâ€

(a) Claims 7 to 9 were addressed collectively. Pages 806â€"810 of the paperbook. The total amount awarded was Rs. 7,40,320/-. The aggregate of

these three claims was Rs 88,50,000, as follows:

(i) Claim 7: Rs 28.50 lakhs â€" for underutilization of machinery;

(ii) Claim 8: Rs.8 lakhs â€" for underutilization of labour; and

(iii) Claim 9: Rs. 52 lakhs â€" for underutilization of expenses on overheads.

(b) Claim 12 was granted in full in the amount of Rs.10,19,086/-, for compensation for delay. Pages 811â€"826 of the paperbook.

F. THE CHALLENGE TO THE AWARD

There is no challenge to the award under claims 4 and 5. The only challenge is to the Award under claims 7â€"9 and 12.

(a) The first three, Claims 7 to 9, were addressed collectively. Paper book, pp. 806â€"810. The total amount awarded was Rs. 7,40,320/-. The

aggregate of these three claims was Rs.88.5 lakhs, as follows:

(i) Claim 7: Rs 28.50 lakhs â€" for underutilization of machinery;

(ii) Claim 8: Rs.8 lakhs â€" for underutilization of labour; and

(iii) Claim 9: Rs. 52 lakhs â€" for underutilization of expenses on overheads.

(b) Claim 12 was granted in full in the amount of Rs.10,19,086/-, for compensation for delay. Paper book, pp. 811â€"826.

Recon’s statement of claim had a summary of these claims, Paper book, pp. 28â€"29. and a more detailed working. Paper book, pp. 83â€"85.

I Claims Nos 7 to 9

Claims 7 to 9 were all essentially facets of ‘idling charges’. What seems to have happened is this. Work stopped on 2nd December 2010: a

large and old tree at site fell. This obstructed the continued execution of the site works. At this stage, centering, shuttering and placement of

reinforcement for the second floor slab was complete. But concrete could not be poured until the tree was removed; and this needed clearance. The

Executive Engineer gave his approval for tree clearance on 19th February 2013, and directed that work be resumed. Work was thus hindered,

according to Recon, from 2nd December 2010 to 19th February 2013. There were additional grounds of delay cited by Recon: delay in layout, delayed

structural drawings, a 65-delay for non-supply of sand due to a High Court-ordered ban on sand mining, the tree obstruction, delay by the electrical

contractor and so on. Recon’s claim was founded on a total delay of 1822 days.

Mr Jain found that other than the sand mining ban, all the other delays were beyond Recon’s control but could have been averted by the Union

of India. He also said that at best a one-month period could have been allowed to permit the tree clearance. He therefore accepted that there was a

delay of 1727 days, or 57.5 months.

But this in itself could not have directly led to a quantification of an amount in damages. That would have been arbitrary. Mr Jain was conscious of

this. He therefore balanced the evidentiary material before him, applied the law and came to this conclusion:

(e) It is now laid principle of Hon’ble High Court and Hon’ble Supreme Court that under Section 73 of Indian Contract Act, 1872, innocent

party can claim damages from other party to contract found in breach of contract. As such, I decide that claimant is entitled for damages towards loss

of overheads during prolongation of work beyond stipulated time of 57.5 months under Section 73 of Indian Contract Act, 1872.

(f) The claimant though submitted calculations of claimed amount vide Ex.C3 1, C32 & C33 for claim No.7, 8, & 9 respectively. But claimant failed to

produce vouchers and evidences in support of calculations ofEx.C31, C32 & C33 and hence amount claimed as per Ex.C31, C32 & C33 are not

deemed to be reasonable for making award against claim No.7,8 & 9.

(g) At the same time, it is also a matter of fact that claimant during prolongation of work beyond stipulated time has to maintain the minimum

establishment at site such as Principal Technical representative/technical representative as envisaged in clause 36(i) of agreement and other staff such

as supervisor, mechanic, store-in-charge/helper to carry on with the work during the prolongation of work. As per provisions of contract under

Schedule ‘F’, 10% contractor profit and overhead are admissible. The respondent, vide Ex.R52(ii) of RD-7 has produced extract of CPWD

Works Manual 2014, which shows element of overheads of 2.5% out of total 10% CP&OH. I consider it reasonable to allow 2% overheads after

keeping in view the one time fixed expenditure incurred on construction of labour huts, sanitary facilities to labour, site office, installation & dismantling

of plant and machineries and running overhead expenses on Principal technical representative, supervisor, mechanic, helper etc. Work of

Rs.1,01,90,861/- inclusive of 10% CP&OH was to be executed in 14 months. Amount for work excluding 10% CP&OH works out to Rs.91,71,775/-

(0.9*1, 01, 90,861). As such, overhead expenditure per month comes to Rs.13,103/- per month {91,71,775*(2/100)*(1/14)}. I have decided above that

claimant is entitled for damages for 57.5 months. Claimant is entitled for extra time of 32 days say one month on account of carrying out additional

work. It is to note that claimant was not sitting idle during this period but with same set of T&P and supervisory staff he was carrying out additional

work over and above contract value. It is also matter of fact that no additional work was possible without overhead expenditure and, therefore,

claimant is not entitled for loss of overhead for 32 days say one month. Expenditure of overheads for 56.5 months is allowed @ Rs.13,103/- per

month, which works out to Rs.7,40,320/-.

I award Rs.7,40,320/- to claimant against claim Nos.7, 8 & 9.

(Emphasis added)

It is impossible to fault this reasoning or conclusion. Mr Sharma’s argument, that we are concerned with ‘public funds’, are immaterial.

This is a contract, and only because one of the parties to the contract is the government gives it no exemption from a liability in law that otherwise

attaches. On the legal formulation set out above, any challenge to this finding must necessarily involve either a reappreciation of evidence or a case

that there has been an erroneous application of the law. Neither is possible. As the Supreme Court said in MP Power Generation Co vs Ansaldo

Energia Spa & Anr, (2018) 16 SCC 661. the arbitrator is not just the ‘proper’ judge of evidence. He is the only judge of the sufficiency of that

evidence. A Section 34 court will not sit in appeal in matters of evidence. If the arbitrator takes a possible vide, it must pass muster. He, and he alone,

is the sole judge of the quantity and quality of the evidence.

It is also impossible to say that the decision is ‘perverse’ or one that no reasonable person might have arrived at. If anything, the award is

conservative. It is balanced and fine-grained. Notably, the claim was very large: Rs.88.50 lakhs. What Mr Jain awarded was less than one-tenth of

the claim, only Rs.7,40,320. He did not accept the entire period of delay, nor the entire computation of costs.

The challenge on this ground fails.

II Claim No 12

This was a much more difficult claim to address. It was for a refund of Rs.10,19,086/- levied as compensation for delay by the Union of India on

Recon and recovered from Recon’s bills and security deposit. Recon contended that it had caused no delay. It also said that if time for

performance was extended, then time was no longer of the essence, and therefore there could be no levy. Mr Sharma argued, first, that time remained

of the essence, and, second, that the decision of the Union of India’s Superintending Engineer or SE was an ‘excepted matter’ under the

contract and beyond the purview of arbitrability. Paper book, p. 811.

Both sides produced evidence. Paper book, pp. 812â€"813. This was analysed threadbare. Paper book, pp. 813â€"814. But that was not all.

Confronted with the nature of the submissions, Mr Jain framed five distinct issues under this head of claim alone: Paper book, p. 814.

(1) Whether claim No. 12 is an ‘Excepted Matter’ in terms of clause 25 and hence not arbitrable under clause 2?

(2) Whether time has been the essence of contract under clause 5 throughout the period of contract up to actual date of completion on 25.01.2016 and

clause 2 remained operative?

(3) Whether claimant is responsible for breach in terms of clause 2 of agreement?

(4) Whether respondent suffered any loss on account of delay in work justifying levy of compensation?

(5) Whether action under clause 2 is automatic and merely a mechanical process to recover liquidated damages/ levy of compensation in view of sum

named as agreed compensation under clause 2?

He then proceeded to discuss each of these, carefully referencing judicial decisions, including on what would constitute an ‘excepted

matter’: Union of India v Chawla Interbild Construction Co Pvt Ltd; (2003) 3 Mh LJ 88.9 Vishwanath Sood v Union of India; (1989) 1 SCC 657:

AIR 1989 SC 952. and JG Engineers Pvt Ltd v Union of India. (2011) 5 SCC 75;8 paragraphs 14 to 16. He concluded that the claim was arbitrable.

Paper book, pp. 814â€"817.

On the question of time being of the essence, Mr Jain arrived at a perfectly plausible view that the time extension was not granted in continuity.

Therefore, time did not remain the essence of the contract. Paper book, pp. 817â€"819. This is the correct position in law. In Hind Construction

Contractors v State of Maharashtra, (1979) 2 SCC 70, paragraphs 7 and 8. citing Halsbury’s Laws of England, the Supreme Court said that time

is not of the essence where, for instance, the parties contemplate a postponement of completion. A provision making time of the essence is not to be

read in isolation but with other cognate contractual provisions, if these can reasonably be said to exclude the inference that time for completion was

fundamental. Time extension clauses, or provisions for penalty or fines for delay, for instance, could legitimately be construed as clauses rendering

ineffectual even an express provision that time is of the essence of the contract. Thus, such a provision is not immutable in any and all circumstances.

On the third issue, he concluded on facts that Recon was not responsible for the initial delay, but the Union of India was. Further, during the period

in question, the SE did not issue any notice claiming delay compensation, This reasoning is perfectly in line with Section 55 of the Contract Act: 55.

Effect of failure to perform at a fixed time, in contract in which time is essential.â€"When a party to a contract promises to do a certain thing at or

before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so

much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the

essence of the contract.

Effect of such failure when time is not essential.â€"If it was not the intention of the parties that time should be of the essence of the contract, the

contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the

promisor for any loss occasioned to him by such failure.

Effect of acceptance of performance at time other than that agreed upon.â€"If, in case of a contract voidable on account of the promisor’s failure

to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot

claim compensation for any loss occasioned by the non-performance of the promise at the time agreed, unless, at the time of such acceptance he

gives notice to the promisor of his intention to do so. which clause 3(v) of the contract required, and therefore this had to be seen as a waiver. The

Union of India staff evaluated the delay only belatedly after the work was completed. This was not what the contract contemplated. In other words,

the Union of India did not operate the contract (clauses 2 and 5) while it was still operating. Thus, it could not be said, Mr Jain held, that Recon was in

breach. Paper book, pp. 819â€"822.

As to the question of whether the Union of India had suffered any loss (justifying the deduction), evidently this was a matter of appreciating the

evidence. Mr Jain found that the Union of India had not even pleaded any loss being suffered, either real or notional. There was absolutely no proof of

loss justifying the deduction. Even in the final order levying compensation, the SE said nothing about any loss being suffered by the Union of India

department. Mr Jain held against the Union of India, and in my view, correctly so. Paper book, p. 822.

Finally, on the last issue, Paper book, pp. 823â€"825. he concluded that the deduction was not ‘automatic’ or a merely mechanical action.

Clause 2 required Recon to maintain the scheduled progress of work and to complete it during the term of the contract or any extension. A failure

invited compensation at specified rates. Clause 5 said that the time for execution or the extended time would be of the essence. Clause 2: “If the

contractor fails to maintain the required progress in terms of clause 5 or to complete the work and clear the site on or before the contract or extended

date of completion shall, without prejudice to any other right or remedy available under the law to the Government on account of such breach, pay as

agreed compensation the amount calculated at the rate stipulated below as the Superintending Engineer (whose decision in writing shall be final and

binding) may decide on the amount of tendered value of the work for every completed day/month (as applicable) that the progress remains below that

specified in clause 5 or if the work remains incomplete.

This will also apply to items or group of items for which a separate period of completion has been specified.

I) Compensation for delay of work @ 1.5% per month of delay to be computed on per day basis.

Provided always that the total amount for compensation for the delay to be paid under this condition shall not exceed 10% of the tendered value of

work or of the tendered value of the items or group of items of work for which a separate period of completion is originally given…….â€​

Clause 5: The time allowed for execution of the works as specified in the schedule F or the time in accordance with these conditions shall be the

essence of the contract.

 Mr Jain interpreted these two clauses of the contract â€" a matter primarily in his purview in law, as we have seen â€" to conclude that before

levying any compensation, two things had to be established: first, a breach by the contractor, Recon, to maintain the schedule or complete work during

the contract period/extended period; and, second, time should remain the essence of the contract throughout the period or extended period of the

contract. This is entirely correct in law and as a matter of construction of the contract. In this case, the Union of India failed on both counts: it could

show neither the breach nor that time remained the essence of the contract. In this context, Mr Jain referenced Section 74 of the Contract Act. Paper

book, p. 823. Referencing settled law and judicial precedent, he concluded that the Union of India could not dispense with proof of loss where such

proof was possible and not complicated.

Consequently, Mr Jain awarded a reversal of the entire deduction.

Again, it is impossible to fault the learned Sole Arbitrator’s reasoning on this claim. The challenge to this part of the Award must also fail.

G. CONCLUSION

In my view, the Award is beyond reproach. Mr Jain was careful to a fault, minutely going through the records. He brought to bear his own many

years of expertise â€" that much is evident on every page of this award. He diligently â€" and more importantly, intelligently â€" applied the law. As it

happens, he did so correctly; but even if he had not, that would have furnished no ground for interference. The interpretation and construction of the

contract was primarily his domain, and he fulfilled that objective, if I may say so, with admirable precision. He was moderate in his approach, and this

can be seen from his elimination of some of the more fanciful claims Recon presented before him. There can be no question of re-appreciating the

evidence before him.

On the question of perversity, therefore, as a component of patent illegality, it is impossible to hold for the Petitioner, the Union of India. There is

nothing that can remotely be said to be perverse, unreasonable or irrational about the Award. What we have therefore is this: a fullness of evidence, a

patient hearing and a careful consideration of all points canvassed; and a resultant Award that is meticulous, careful and on the right side of the law.

Thus, these being the only arguments canvassed before me by Mr Sharma, there is no merit whatsoever in this Petition. It is dismissed.

Since this is a petition by the Union of India, there will be no order of costs.