- (1.) THIS Judgment would dispose of these appeals which arise in identical circumstances and raise common question of fact and law.
(2.) FAO No. 1122 of 1991 is directed against order and decree dated April 26, 1991, of Senior Subordinate Judge, Ropar, dismissing objections filed by the applicant under Sections 30 and 33 of the Act against the award dated June 9, 1990, and making the same rule of the Court. Before dealing with the various points raised in the appeal, brief facts of the case may be set out as under : The respondent-company, hereinafter referred to as the contractor, was awarded contract by the State of Punjab vide agreement No. 6/86 dated. January 25, 1986, for executing work for the construction of Sutlej Yamuna Link Canal (Irrigation), Punjab portion in reach RD 47000 to 48400 KM (hereinafter called SYL); Disputes or differences having arisen between the parties, the matter was referred by the Chief Engineer, Construction, SYL vide order dated July 28, 1989 to Mr. K. C. Verma, Chief Engineer. Hydel Design, Punjab State Electricity Board, Chandigarh, by name, who was constituted sole arbitrator in terms of Clause 63 of the General Conditions of Contract which was an integral part of the said agreement. The contractor submitted its claims before the arbitrator. Reply on behalf of the Department was filed, followed by rejoinder and further rejoinders thereto. The parties produced their evidence mostly in the form of documents about which there was no dispute. Arguments were concluded before the Arbitrator on May 28, 1990, and decision was reserved. Both parties gave their written consent before the Arbitrator for extension of the time for giving the award upto July 8, 1990. The Arbitrator gave his award on June 9, 1990. On behalf of the department, objections under Sections 30 and 33 of the Act were filed for setting aside the award. The Contractor contested those objections and prayed for making the award rule of Court. The learned Senior subordinate Judge framed the following issues: 1. Whether the award is liable to be set aside for the reasons stated in the objection petition? OPR. 2. Whether the award is liable to be made a rule of the Court? OPA. 3. Relief. By order dated April 26, 1991, the learned Senior Subordinate Judge, Ropar, dismissed the objections, and made the award rule of the Court. Hence this appeal.
(3.) THE first contention of Mr. S. S. Saron, Deputy Advocate-General, appearing for the State, is that the award is null and void as on the material date the Arbitrator had ceased to hold office as a public servant in terms of Clause 63 of the General Conditions of Contract. Facts bearing on this point are that Mr. K. C. Verma, Chief Engineer, PSEB, who was appointed sole arbitrator, was prematurely retired by the Punjab State Electricity Board under the PSEB Services (Premature Retirement) Regulations, 1982, by order dated May 30, 1990, with immediate effect after he had crossed the age of 55 years. The relevant part of Clause 63 provides:" if the arbitrator so appointed is unable or unwilling to act or resigns his appointment or vacates his office due to any reason whatsoever, another sole arbitrator shall be appointed as aforesaid. " It was submitted that proceedings held by the Arbitrator after May 30, 1990, were non est. In other words, proceedings dated June 4, 1990, was without jurisdiction. In reply, Mr. R. S. Mittal, Senior Advocate, on behalf of the Contractor, made a two fold submission: one, that the order of premature retirement was quashed by this Court in CWP No. 6529 of 1990 decided on September 5, 1990 and it was specifically directed that "the petitioner would be deemed to be continuing in service since the date of his premature retirement i. e. 30th May, 1990, with all consequential benefits. " Mr. Mittal placed reliance on Hari Dutt v. Haryana State Agricultural Marketing Board,1 AIR 1989 SC 1670 and Devender Pratap v. State of Uttar Pradesh,2 AIR 1962 SC 1334. The second reason given by Mr. Mittal is that by taking part in the proceedings, despite order of premature retirement, the Department acquiesced in and waived its objection to the jurisdiction of the Arbitrator. Reference in this connection was made by the learned counsel to the fact that Mr. Gurdip Singh, Executive Engineer, Kharar Division, who appeared for the department before the Arbitrator on June 4, 1990, signed the proceedings held on that day.;