N Criminal Appeal No 325 of 1987
From the Judgment and Order dated 9111984 of the Punjab and Haryana High Court in Crl
Appeal No 132 SB of 1984
Amita Gupta and RS Suri for the Appellant
RL Kohli RC Kohli GS Rao and Ms C Markandeya for the Respondents
The Judgment of the Court was delivered by AHMADI J
Mohinder Kaur set herself and her three children ablaze on the afternoon of 7th June 1983 at the residence of her husband Iqbal Singh
The marriage had taken place seven or eight years before the incident
She had given birth to two daughters and a son
The deceased was working as a teacher while her husband was a clerk in the Punjab State Electricity Board office at Amritsar
Soon after the marriage there were disputes between them on the question of dowry
The demand for extra dowry strained the relations between them and the husband began to ill treat the deceased wife
It appears that in course of time there was further deterioration in their relationship as a result whereof the deceased had written a letter to the Deputy Superintendent of Police on 12th October 1977 complaining about the ill treatment meted out to her and apprehending danger to her life and the life of her children
She therefore sought police protection
However by the time the police came to inquire into the matter there was some understanding as a result of which has had informed the police that no further action be taken for the present but her application may be kept pending
Then on 31st December 1977 a divorce deed Exh D 2 was executed but was not acted upon
It seems that the situation did not improve and as a result she took the extreme step of putting an end to her life as well as the lives of her three children since she apprehended that their fate would be worse after her death
However before putting an end to her life she wrote a letter that very morning which has been reproduced in extenso in paragraph 13 of the judgment of the trial court
The text of that letter dated 7th June 1983 794 addressed to the Deputy Commissioner of Police Public Dealing Branch Amritsar shows that her husband was demanding Rs35000 to Rs40000 by way of additional dowry and was ill treating her under the influence of alcohol on that account
She also alleged that her mother in law and sister in law also conspired and made false accusations against her and instigated her husband to beat her if she refused to bring the additional dowry
She alleges that they had conspired to kill her on the night of 6th June 1983 by sprinkling kerosenepetrol on her but their plan misfired
She was fed up on account of the beating given to her that night
She further alleged that her children were also ill treated by her husband and his family members
On account of these developments she had taken the decision to put an end her life and the lives of her children to spare them of the present and future agony
At the foot of the letter she appended a note to the effect that even after their death she apprehended that her husband and his family members may try to cause physical harm to her mother and younger brother and requested the police to extend to them the necessary protection
She implores that her salary GP Fund and other monetary benefits to which she may be entitled from the school authorities should not fall in the hands of her husband and his relatives and may be given to some school or orphanage and her ornaments etc
may be recovered from her in laws and be returned to her parents
Another letter of even date was addressed to her mother her father having since died stating that she was fed up of the continuous tension suffering and agony that her mother had to go through on her account as she could not meet the demand for extra dowry
She also states that apart from her husband demanding extra dowry he has started making false accusations against her and beating her time and again on that account
She further alleges that her husband s mother and sister were privy to this beating by her husband but she had somehow survived
Then she adds today I alongwith three children am sacrificing by fire 
She ends the letter by stating that her mother need not think that her daughter was dead in fact she will gain freedom from seven years of hell
In the letter addressed to the Deputy Commissioner of Police there is reference to the earlier applicationletter dated 12th October 1977 by which she had complained about possible risk to life
It appears from the said letter that the police had gone to inquire into the matter two months later on 11th December 1977 but during that intervening period the relatives of her husband had intervened and had temporarily patched up the matter
It was for that reason that she informed the police that no action was immediately necessary but still she insisted that her application may be kept pending Thus this subsequent letter contains intrinsic evidence about her 795 previous application dated 12th October 1977
After the unfortunate incident which took place on the afternoon of 7th June 1983 a First Information Report was lodged against the husband Iqbal Singh by the mother of the deceased
After investigation the husband his mother and sister were put up for trial
The Trial Court on an examination of the prosecution evidence convicted all the three accused persons under Section 306 IPC and sentenced the husband Iqbal Singh to rigorous imprisonment for seven years and a fine of Rs5000 in default rigorous imprisonment for one year
So far as the other two accused were concerned having regard to their role and the fact that the mother was an aged and frail woman he sentenced them to rigorous imprisonment for three years and a fine of Rs1000 each in default rigorous imprisonment for three months
Against this order of conviction and sentence all the three accused persons preferred an appeal before the High Court
The High Court on a reappreciation of the evidence and having regard to the language of Section 306 IPC came to the conclusion that the prosecution evidence did not establish the ingredients of the section in that there was no evidence to show that any of the accused was guilty of abetment
In this view that the High Court took it allowed the appeal and set aside the order of conviction and sentence passed against the appellants
The State has therefore approached this Court by way of special leave
In the meantime the accused Manjit Kaur has passed away
The appeal is therefore limited to Iqbal Singh and his sister Kulwant Kaur
Counsel for the State of Punjab took us through the evidence on record particularly the letters dated 7th June 1983 and submitted that this was a clear case of the husband and his sister creating conditions which compelled the deceased to take the extreme step of burning herself and her children
The evidence of Dr Harjinder Singh who performed autopsy has not been disputed before us
His evidence shows that the deaths of all had resulted on account of shock sustained due to excessive burns
PW 2 Jasbir Kaur the mother of the deceased says that her daughter complained to her from time to time about the ill treatment meted out to her by her husband on his own and at the instigation of his mother and sister
She has also stated that this ill treatment was due to failure of the deceased to meet his demand for extra dowry
She received a message about the incident while she was at her brother s residence in amritsar
She and her son went to the hospital and learnt that her daughter and grand children had passed 795 previous application dated 12th October 1977
After the unfortunate incident which took place on the afternoon of 7th June 1983 a First Information Report was lodged against the husband Iqbal Singh by the mother of the deceased
After investigation the husband his mother and sister were put up for trial
The Trial Court on an examination of the prosecution evidence convicted all the three accused persons under Section 306 IPC and sentenced the husband Iqbal Singh to rigorous imprisonment for seven years and a fine of Rs 5000 in default rigorous imprisonment for one year
So far as the other two accused were concerned having regard to their role and the fact that the mother was an aged and frail woman he sentenced them to rigorous imprisonment for three years and a fine of Rs1000 each in default rigorous imprisonment for three months
Again this order of conviction and sentence all the three accused persons preferred an appeal before the High Court
The High Court on a reappreciation of the evidence and having regard to the language of Section 306 IPC came to the conclusion that the prosecution evidence did not establish the ingredients of the section in that there was no evidence to show that any of the accused was guilty of abetment
In this view that the High Court took it allowed the appeal and set aside the order of conviction and sentence passed against the appellants
The State has therefore approached this Court by way of special leave
In the meantime the accused manjit Kaur has passed away
The appeal is therefore limited to Iqbal singh and his sister Kulwant Kaur
Counsel for the State of Punjab took us through the evidence on record particularly the letters dated 7th June 1983 and submitted that this was a clear case of the husband and his sister creating conditions which compelled the deceased to take the extreme step of burning herself and her children
The evidence of Dr Harjinder Singh who performed autopsy has not been disputed before us
His evidence shows that the deaths of all had resulted on account of shock sustained due to excessive burns
PW 2 Jasbir Kaur the mother of the deceased says that her daughter complained to her from time to time about the ill treatment meted out to her by her husband on his own and at the instigation of his mother and sister
She has also stated that this ill treatment was due to failure of the deceased to meet his demand for extra dowry
She received a message about the incident while she was at her brother s residence in Amritsar
She and her son went to the hospital and learnt that her daughter and grand children had passed 796 away
She then deposed to have received a letter of 7th June 1983 on 9th June 1983
In her cross examination it was brought out that she had not pointed an accusing finger at the mother and sister of accused Iqbal Singh
She tried to explain the absence of allegation against the said two persons on the ground that she was confused on account of the tragedy
She further deposed that she had omitted the names of two ladies because of pressure exerted on her by Iqbal singh
Obviously her explanation cannot carry conviction because it is difficult to believe that she would submit to the pressure of Iqbal Singh whom she considered primarily responsible for the death of her daughter and grand children
It may also be mentioned at this stage accused Kulwant Kaur is a married women who lives with her husband in another village
There is no evidence on record to show that she was at the residence of her brother on the date of the incident or immediately prior thereto to instigate her brother
PW Santosh Singh brother of the deceased has maintained that accused Iqbal Singh was ill treating his sister soon after marriage as the latter was not able to meet his demand for extra dowry
He further deposed that after the death of his father his mother had received a sum of Rs60000 or thereabouts by way of provident fund and gratuity and when the accuse Iqbal Singh learnt about the same he pressurised the deceased to secure a sum of Rs40000 or thereabouts from that amount to meet his demand for extra dowry
He had gone with his mother PW 2 Jasbir Kaur to the hospital after learning about the incident
In cross examination he was questioned about the purchase of a plot in the name of the deceased by Iqbal Singh
He however stated that his father had given a sum Rs20000 or 21000 for purchase of this plot although he could not state the exact price at which it was purchased
The two letters one addressed to the Deputy Commissioner of Police and the other to the mother dated 7th June 1983 have been duly proved by the prosecution
These letters were written immediately before she put an end to her life and the lives of her three children
These letters reveal her plight immediately before the incident
There is a mention about an attempt on the part of her husband to kill her on the preceding day
She apprehended that her children would suffer intolerable miseries if they survived her and therefore she took the extreme decision to put an end to their lives also along with her
This letter clearly brings out her turmoil whereunder she took the extreme step of putting an end to her life
The earlier letter of 12th October 1977 also shows that she was being ill treated soon after her marriage
The divorce deed produced at Exh
D 2 is dated 30th November 1977
This would show that by that time the relatives had intervened and therefore when the police came to inquire on 11th December 1977 she told them that 797 there was no immediate danger but her application should be kept pending
Considerable emphasis was laid by the learned counsel for the respondents on the statement in Exh
D 2 attributed to the deceased that she had been forced to marry Iqbal Singh
Emphasis was also laid on the post script at the foot of the said document made by Iqbal Singh to the effect that he has agreed to a divorce since his wife desires it
From these two statements counsel for the respondents argued that the accused Iqbal Singh had no grudge against his wife and had expressed his willingness to put an end to the marital relationship as his wife so desired
He also submitted that the statement of the deceased that she was forced to marry Iqbal Singh went to show that it was she who was keen to put an end to the relationship as she did not desire to live with Iqbal Singh
But counsel overlooks the fact that there is intrinsic evidence inthe divorce deed that their marital life was unhappy and she apprehended blood shed as well as harm to the children even after they parted company
Counsel then referred to letter Exh
D 1 April 1983 written by the deceased to one Gopal Singh complaining about the behaviour of the Headmaster towards her
By that letter she expressed her desire to secure a transfer from the school to get rid of the harassment meted out to her by the Headmaster
In this letter there is a mention that her husband Iqbal Singh was spending considerable time in correspondable time in correspondence with the Headmaster
From this letter counsel for the respondents submitted that the deceased could have committed suicide on account of the harassment caused to her by the Headmaster of the school
But that does not explain the killing of the children
This letter was written on 17th April 1983 whereas the incident in question occurred on 7th June 1983 ie more than 1 12 months thereafter
The immediate cause for the extreme step taken by the deceased is clearly reflected in the two letters of 7th June 1983
Therefore the inference drawn by the learned counsel for the respondents from the letter of 17th Aril 1983 cannot advance the defence set up by the accused persons
Iqbal Singh filed a written statement jointly with Kulwant Kaur wherein he stated that he had not helped his wife to secure a transfer as the family was having a good residence in the village and this was the real cause of quarrel between the two
The statement shows that the factum of quarrel between the husband and wife is not seriously disputed
The nature of correspondence he was carrying on with the Headmaster is not difficult to judge
He then states that he had purchased the plot in the name of his wife for Rs 12500 but he does not disclose the source from which the consideration for the plot came
He further states that his wife was earning Rs900 per month and therefore he could never have entertained an intention to push her to committing suicide
It 798 would therefore appear from the evidence placed on record that the relations between the deceased and Iqbal Singh were strained because of the latter s demand for extra dowry and they worsened to such an extent that the deceased decided to put an end to her life
The charge against the accused was under section 306 IPC
That section must be read in the backdrop of the above facts
Underthat section if any person commits suicide the person who abets the commission of suicide shall be liable to be punished with imprisonment of either description for a term which may extend to ten years and fine
The question is whether on the facts proved it can be said that either Iqbal Singh or his sister were guilty of abetment
Chapter V of the Penal Code is entitled Of Abetment  and comprises sections 107 to 120 of which we may notice sections 107 and 108 only
Abetment  as defined by section 107 comprises i instigation to do that thing which is an offense ii engaging in any conspiracy for the doing of that thing and iii intentionally aiding by any act or illegal omission the doing of that thing
Section 108 defines an abettor as a person who abets an offence or who abets either the commission of an offence or the commission of an act which would be an offence
The word instigate  in the literary sense means to incite set or urge on stir up goad foment stimulate provoke etc
Since there is no question of parties being engaged in any sort of conspiracy we have to consider whether there was any intentional aiding for committing suicide
The dictionary meaning of the word aid is to give assistance help etc
Before we come to grips with the question at issue it is necessary to notice a few legislative changes introduced in the Penal Code to combat the menance of dowry deaths
The increasing number of such deaths was a matter of serious concern to our law makers
Cases of cruelty by the husband and his relatives culminated in the wife being driven to commit suicide or being done to death by burning or in any other manner
In order to combat this menance the legislature decided to amend the Penal Code Criminal Procedure Code and the Evidence Act by the Criminal Law Section Amendment Act 1983 No 46 of 1983
So far as the Penal Code is concerned Section 498A came to be introduced whereunder cruelty  by th husband or his relative to the former s wife is made a penal offence punishable with imprisonment for a term which may extend to three years and fine
The explanation to the section defines cruelty  to mean i wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to her life limb or health or ii causing harassment of the woman with a view to coercing her or any person 799 related to her to meet any unlawful demand for any property or valuable security
Thus under this newly added provision if a woman is subjected to cruelty by her husband or his relative it is a penal offence and by the insertion of section 198A in the Code of Criminal Procedure a Court can take cognizance of the offence upon a police report or upon a complaint by the aggrieved party or by the woman s parents brother sister etc
The offence is made non bailable
In so far as the Evidence Act is concerned a new section 113A came to be introduced which reads as under 113A Presumption as to abetment of suicide by a married woman
When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty the court may presume having regard to all the other circumstances of the case that such suicide had been abetted by her husband or by such relative of her husband
Explanation For the purposes of this section cruelty  shall have the same meaning as in Section 498A of the Indian Penal Code 45 of 1860
 On a plain reading of this provision it is obvious that if a wife is shown to have committed suicide within a period of seven years from the date of marriage and there is evidence that she was subjected to cruelty by her husband or his relative it would be permissible for the court to presume that such suicide was abetted by her husband or by such relative of her husband
The Amendment Act 46 of 1983 received the assent of the President on 25th December 1983 and was published in the Gazette of India dated 26th December 1983
The trial court rendered its Judgment on 23rd February 1984 and it does not appear if the prosecution concentrated on section 113A Evidence Act for otherwise it would have tried to place on record the exact date of marriage to take advantage of the presumption arising thereunder
The High Court referred to this provision but did not say anything in regard to its application
Being a rule of evidence it could perhaps have been invoked if proof regarding the exact date of marriage was laid
Since there is no cogent evidence that the marriage was solemnised within seven years from the date of incident we need not dilate on that point
800 The law underwent a further change with the introduction of section 304B in the Penal Code and section 113B in the Evidence Act by the Dowry Prohibition Amendment Act 1986
Where the death of a woman is caused by burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and evidence reveals that soon before her death she was subjected to cruelty or harassment by her husband or any of his relative for or in connection with any demand for dowry such death is described as dowry death under section 304B for which the punishment extends to imprisonment for life but not less than imprisonment for seven years
By section 113B Evidence Act the court has to raise a presumption of dowry death if the same has taken place within seven ears of marriage and there is evidence of the woman having been subjected to cruelty andor harassment
The legislative intent is clear to curb the menance of dowry deaths etc with a firm hand
We must keep in mind this legislative intent
It must be remembered that since such crimes are generally committed in the privacy of residential homes and in secrecy independent and direct evidence is not easy to get
That is why the legislature has by introducing sections 113A and 113B in the Evidence Act tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within seven years of marriage
This period of seven years is considered to be the turbulent one after which the legislature assumes that the couple would have settled down in life
It a married woman is subjected to cruelty or harassment by her husband or his family members section 498A IPC would be attracted
If such cruelty or harassment was inflicted by the husband or his relative for or in connection with any demand for dowry immediately preceding death by burns and bodily injury or in abnormal circumstances within seven years of marriage such husband or relative is deemed to have caused her death and is liable to be punished under section 304B IPC
When the question at issue is whether a person is guilty of dowry death of a woman and and the evidence discloses that immediately before her death she was subjected by such person to cruelty andor harassment for or in connection with any demand for dowry section 113B Evidence Act provides that the court shall presume that such person had caused the dowry death
Of course if there is proof of the person having intentionally caused her death that would attract section 302 IPC Then we have a situation where the husband or his relative by his wilful conduct creates a situation which he knows will drive the woman to commit suicide and she actually does so the case would 801 squarely fall within the ambit of section 306 IPC
In such a case the conduct of the person would tantamount to inciting provoking or virtually pushing the woman into a desperate situation of no return which would compel her to put an end to her miseries by committing suicide
In the present case the facts clearly reveal from the divorce deed Exh
D 2 that the relations between the husband and the wife were strained even in 1977
There is intrinsic evidence in that document that the wife apprehended blood shed and harm to her children
Before the execution of this document she had sought police protection by her applicationletter dated 12th October 1977
Then in April 1983 her efforts to secure a transfer from the school where she was harassed by the Head Master were frustrated by her husband
Her husband had kept up the pressure for extra dowry since her marriage and had stepped it up after the demise of her father on learning that her mother had received the GP Fund Gratuity etc due to her father
Since she and her mother and brother were not able to meet this demand she was subjected to considerable torture
Added to that was the anxiety caused by her husband s conduct at trying to frustrate her efforts to seek a transfer from the school where she was serving
The last straw on the camel s back fell when she was severely beaten on the previous day ie 6th June 1983 as is evident from her letter of 7th June 1983
An atmosphere of terror was created to push her into taking the extreme step
It would seem it was a carefully chalked out strategy to provoke her into taking the extreme step to kill herself and her children as she apprehended that they will be much more miserable after she is dead and gone
In this factsituation can it be said that the husband had not been responsible in creating circumstances which would provoke or force her into taking the only alternative left open to her namely suicide Can it be said that the husband did not realise where he was leading her by his wilful conduct We think in the peculiar facts and circumstances of the case the trial court had rightly convicted the husband under section 306 IPC We think that the High Court committed an error in reversing the conviction
We therefore allow this appeal set aside the High Court s order and restore the order of conviction and sentence passed by the trial court
We cannot countenance the plea for reduction of his sentence
No order on his CMP So far as his sister s involvement is concerned we think the evidence falls short of proof beyond reasonable doubt and therefore we see no reason to interfere with the High Court s order
We therefore dismiss the State s appeal directed against her
Her bail bonds will stand cancelled
VPR Appeal allowed


Summary:
Some disputes arose between the Respondent State and the Contractor in respect of the Cement concrete lining under an agreement in connection with the construction of Nagarjunasagar Dam
Arbitrator Umpire was appointed and the parties filed their pleading and documents before him
There were 15 claims apart from the general claim for cost and interest
The award made by the Umpire was filed before the Civil Court
The Civil Court made the award a rule of Court and passed a decree in terms of the award together with interest at 12 per annum from the date of the decree
On appeal the High Court set aside the decree in respect of three claims on the ground that the claims were not supported by the agreement between the parties and that the arbitrator had gone beyond the contract in awarding the claims and confirmed the decree in respect of three other claims
Aggrieved by the High Court s Judgment both the Contractor and the State Government preferred appeals by special leave
On behalf of the Contractor it was contended that since the Umpire made a non speaking award and did not incorporate any document as part of the award except his reference to the contract law did not permit interference by the Court with the award and that the High Court exceeded its jurisdiction in interfering with a non speaking award
On behalf of the State Government it was contended that notwith 925 standing the brevity of his reasoning the arbitrator had given a speaking award but with errors of law and fact apparent on the face of it and that he acted contrary to the contract thereby exceeding his jurisdiction
Dismissing the appeal of the Contractor and partly allowing the appeal of the State Government this Court HELD 1
The arbitrator cannot act arbitrarily irrationally capriciously or independently of the contract
His sole function is to arbitrate in terms of the contract
He has no power apart from what the parties have given him under the contract
If he has travelled outside the bounds of the contract he has acted without jurisdiction
But if he has remained inside the parameters of the contract and has construed the provisions of the contract his award cannot be interfered with unless he has given reasons for the award disclosing an error apparent on the face of it
938A B 2
An arbitrator who acts in manifest disregard of the contract acts without jurisdiction
His authority is derived from the contract and is governed by the Arbitration Act which embodies principles derived from a specialised branch of the law of agency
He commits misconduct if by his award he decides matters excluded by the agreement
A deliberate departure from contract amounts to not only manifest disregard of his authority or a misconduct on his part but it may tantamount to a mala fide action
A conscious disregard of the law or the provisions of the contract from which he has derived his authority vitiates the award
938C E Mustill  Boyd s Commercial Arbitration Second Edition p 64 Halsbury s Laws of England Volume II 4th Edn para 622 referred to
A dispute as to the jurisdiction of the arbitrator is not a dispute within the award but one which has to be decided outside the award
An Umpire or arbitrator cannot widen his jurisdiction by deciding a question not referred to him by the parties or by deciding a question otherwise than in accordance with the contract
He cannot say that he does not care what the contract says
He is bound by it
It must bear his decision
He cannot travel outside its bounds
If he exceeded his jurisdiction by doing so his award would be liable to be set aside
938E F Attorney General for Manitoba vs Kelly  Others  referred to
926 41 Evidence of matters not appearing on the face of the award would be admissible to decide whether the arbitrator travelled outside the bounds of the contract and thus exceeded his jurisdiction
In order to see what the jurisdiction of the arbitrator is it is open to the Court to see what dispute was submitted to him
If that is not clear from the award it is open to the Court to have recourse to outside sources
The Court can look at the affidavits and pleadings of parties the Court can look at the agreement itself
939A B Bunge  Co vs Dewar  Webb 1921 8 LI
LRep
436KB referred to
If the arbitrator commits an error in the construction of the contract that is an error within his jurisdiction
But if he wanders outside the contract and deals with matters not allotted to him he commits a jurisdictional error
Such error going to his jurisdiction can be established by looking into material outside the award
Extrinsic evidence is admissible in such cases because the dispute is not something which arises under to the contract or dependent on the construction of the contract or to be determined within the award
The dispute as to jurisdiction is a matter which is outside the award or outside whatever may be said about it in the award
The ambiguity of the award can in such cases be resolved by admitting extrinsic evidence
The nature of the dispute is something which has to be determined outside and independent of what appears in the award
Such jurisdictional error needs to be proved by evidence extrinsic to the award
939C F Ms Alopi Parshad  Sons Ltd vs The Union of India   Union of India vs Kishori Lal   Renusagar Power Co Ltd vs General Electric Company   Jivarajbhai vs Chintamanrao AIR 1965 SC 214 Gobardhan Das vs Lachhmi Ram AIR 1954 SC 689 and Thawardas vs Union of India AIR 1955 SC 468 relied on
Bunge  Co vs Dewar  Webb 1921 8 LI
L Rep 436 KB Christopher Brown Ltd vs Genossenschaft Oesterreichischer  Rex vs fulham  Falkingham vs Victorian Railways Commission  Rex vs All Saints Southampton 1828 7 B  C 785 Laing Son  Co Ltd vs Eastcheap Dried Fruit Co 1961 1 LI
L Rep 142 145 QB Dalmia Dairy Industries Ltd vs National Bank of Pakistan 1978 2 LI
L Rep 223 CA Heyman vs Darwins Ltd 1942 AC 356 Omanhene vs Chief Obeng AIR 1934 PC 185 FR Absalom Ltd vs Great Western London Garden 927 Village Society Limited and M Golodetz vs Schrier  Anr 1947 80 LI
LRep
647 referred to
In the instant case the umpire decided matters strikingly outside his jurisdiction
He outstepped the confines of the contract
He wandered far outside the designated area
He diagressed far away from the allotted task
His error arose not by misreading or misconstruing or misunderstanding the contract but by acting in excess of what was agreed
It was an error going to the root of his jurisdiction because he asked himself the wrong question disregarded the contract and awarded in excess of his authority
In many respects the award flew in the face of provisions of the contract to the contrary
The umpire acted unreasonable irrationally and capriciously in ignoring the limits and the clear provisions of the contract
In awarding claims which are totally opposed to the provisions of the contract to which he made specific reference in allowing them he has misdirected and misconducted himself by manifestly disregarding the limits of his jurisdiction and the bounds of the contract from which he derived his authority thereby acting ultra fines compromissi
940A D ML Sethi vs RP Kapur   The managing Director J and K Handicrafts vs Ms Good Luck Carpets and State of Andhra Pradesh  Anr
vs RV Rayanim   relied on
Anisminic Ltd vs Foreign Compensation Commission   Pearlman vs Keepers and Governors of Harrow School  and Lee vs Showmen s Guild of Great Britain  referred to
Mustill  Boyd s Commercial Arbitration Second Edition p 641 and Halsbury s Laws of England 4th Edn Vol 2 para 622 referred to
In the instant case the contract did not postulate in fact it prohibited payment of any escalation under Claim No III for napaslabs or Claim No VI for extra lead of water or Claim No IC for flattening of canal slopes or Claim No II for escalation in labour charges otherwise than in terms of the formula prescribed by the contract
The umpire travelled totally outside the permissible territory and thus exceeded his jurisdiction in making the award under those claims
This is an error going to the root of his jurisdiction
As such the High Court was right in holding that the arbitrator acted outside the contract 928 in awarding the abovesaid claims
However the High Court went wrong in confirming the decree in respect of Claim No II relating to escalation in labour charges since a specific formula had been prescribed under Item 35 and the function of the umpire was to make an award in accordance with the formula he had no jurisdiction to alter the same
937C D 936F Jivarajbhai Ujamshi Sheth  Ors
vs Chintaman rao Balaji  Ors AIR 1965 SC 214 relied on
Claim No IV relating to Refund of Excess hire charges of machinery and payment towards losses suffered as a result of poor performance of department machinery and also direction for the future  was rightly allowed by the arbitrator and his decision was rightly upheld by the High Court
The Government was in terms of the contract bound to compensate the contractor for the excess higher charges paid as a result of the poor performance of the machinery supplied by the Government
937E F 63
As regards Claim No VII4 relating to Sand Conveyance  the arbitrator was right in stating that the diesel oil requirement should be taken as 035 lit for item No 5 of statement A at page 59 of Agreement as indicated in the original tender and not as O035 and price adjustment made accordingly
The High Court Court rightly upheld this claim
937G H 938A