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2016 DIGILAW 248 (GAU)

Union of India & Ors. v. D. D. Sharma

2016-03-31

MICHAEL ZOTHANKHUMA

body2016
Michael Zothankhuma, J.:-- Zairemsangpuii, learned CGC is present. 2. A perusal of the Order-sheet shows that no one has appeared for the respondent for the whole of the year 2015 even though a vakalatnama has been submitted on behalf of the respondent in favour of the following advocates, Mr. Souman Choudhary, Mr. Mahabir Prasad Baid, Mr. Rajesh Dhar and Mr. Palu Sarkar. This Court in its Order dated 7.3.2016 had held that if the respondent did not appear or was not represented on the next date, the matter would be heard ex-parte against the respondent. None appears for the respondent even today and as such, the matter is being heard in the absence of the respondent. 3. The learned CGC submits that the appellants and the respondent had entered into a contract with the respondent for design and construction of 55 M Span Pm. Steel Bridge (Through Type) with RCC Decking over Surtarakhal at KM 13.27 on Silchar - Badarpur Road and this contract bore CA No. CE(P) Pushpak-01 of 2000-2001. Work Order No. 01 dated 20 Apr 2000 was placed on the contractor with date of completion as 19 April 2002. The site was handed over to the contractor on 20 April 2000 and the work of the said bridge was completed on 31 August 2002. 4. In the meantime, on 20.2.2003 some distresses were found in the newly constructed bridge and a joint inspection by both the parties was carried out and the contractor thereafter submitted their rectification/rehabilitation scheme vide letter dated 20.3.2003 which was approved by the department with the condition that the rectification/rehabilitation should be executed without any extra cost to the department as per Clause 46 of the General Conditions of Contract (GCC) and to extend the defect liability period for one year from the handing over of the rehabilitated bridge vide letter dated 31.3.2003 and the CA was also amended accordingly. 5. The rectification/rehabilitation work was completed on 25.5.2003 but the contractor refused to carry out the instruction of load testing on the rectified bridge and the load testing was dispensed with. 6. However, another distress was observed and accordingly a second rectification/rehabilitation was called for and the contractor again submitted the second rectification/rehabilitation scheme which was again approved with the condition that the work should be executed at no extra cost to the department and within the lump sum agreed amount already agreed. 6. However, another distress was observed and accordingly a second rectification/rehabilitation was called for and the contractor again submitted the second rectification/rehabilitation scheme which was again approved with the condition that the work should be executed at no extra cost to the department and within the lump sum agreed amount already agreed. 7. The department returned the final bill submitted by the contractor on his own request and they re-submitted an amended final bill vide letter dated 24.6.2005 and included some additional claims for the extra work done but the Department refused to pay the extra claims as per the terms and conditions of the amended CA and requested the contractor to amend the bill. The contractor re-submitted another amended bill but still included claims on the extra works of rectification done. The department paid the final bill minus the extra claims. The contractor referred the matter to arbitration. 8. The sole arbitrator disposed of the arbitration proceedings in CA No. CE(P) PSK-01 of 2000-2001 in favour of the respondent vide Arbitration Award dated 10.12.2010 and amendment dated 5.1.2011. 9. The appellant, being aggrieved by the decision of the sole arbitrator preferred an application under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside Award of the arbitrator. The same was registered as Arbitration Case No. 1 of 2011. Arbitration Case No. 1 of 2011 was disposed of by the Court of the Additional District Judge, Aizawl vide Order dated 11.2.2013, which is as follows :- "This application of filed under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the Arbitration Award dated 10.12.2010 and amendment dated 5.1.2011 passed by the ld Sole Arbitrator, Shri S.S. Porwal, CE, HQ Project Udayak, C/O 99 APO in Arbitration Proceedings pertaining to the dispute in CA NO. CE (P) Pushpak - 01 of 2001 between the parties. I have already heard the ld counsels for the parties. On hearing the submission of both sides and on perusal of materials available on record it appears that the ld Sole Arbitrator was the Chief Engineer, Project Udayak and the petitioner filed the application seeking for setting aside the award made by its own CE, who was the Arbitrator. I have already heard the ld counsels for the parties. On hearing the submission of both sides and on perusal of materials available on record it appears that the ld Sole Arbitrator was the Chief Engineer, Project Udayak and the petitioner filed the application seeking for setting aside the award made by its own CE, who was the Arbitrator. On perusal of the award, it seems that the award is fair and just and I am of the opinion that there is not any ground to interfere with and the application is dismissed and disposed off accordingly." 10. Ms. Zairemsangpuii, counsel for the appellants submits that the Order dated 11.2.2013 passed by the Addl. District Judge, Aizawl in Arbitration Case No. 1 of 2011 is liable to be set aside as no reasons or findings has been given by the First Appellate Court. 11. On a perusal of the impugned Order dated 11.2.2013 passed in Arbitration case No.1 of 2011, I find that no reasons or findings has been given by the Court of the Addl. District Judge, Aizawl while dismissing the appellant's application under Section 34 of the Arbitration and Conciliation Act, 1996. 12. The Apex Court in the case of Kranti Associated Private Limited and another v. Masood Ahmed Khan and others reported in 2010 9 SCC 496 has held that the principles on the recording of reasons can be summarised as follows: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part "due process". 13. In the present case, there being no reasons recorded by the Addl. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part "due process". 13. In the present case, there being no reasons recorded by the Addl. District Judge, Aizawl in Arbitration Case No. 1 of 2011 as to whether the requirement of Section 34(2) of the Arbitration and Conciliation Act, 1996 was present/absent in the appellants application, the dismissal of the appellants application by a Cryptic Order, which is without reasons is liable to be set aside. Accordingly, the Order dated 11.2.2013 passed in Arbitration Case No.1 of 2011 by the Court of Addl. District Judge, Aizawl is hereby set aside. 14. The matter is remanded back to the Addl. District Judge, Aizawl for a fresh consideration. The ld. Court shall hear the parties afresh and pass a reasoned order as held by the Apex Court in Kranti Associated Private Limited and another v. Masood Ahmed Khan and others (Supra). 15. The appeal is accordingly disposed off. ---------