F.A.O No.1272 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. F.A.O No.1272 of 2008 Date of Decision: 21.10.2009 Union of India & Ors. ....Appellants Versus M/s Inderjeet Mehta Construction Pvt. Ltd. & Ors. ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Ms. Deepali Puri, Advocate for the appellants. Mr. J.R. Mittal, Sr. Advocate with Mr. Sudhir Pruthi, Advocate for respondent No.1. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This is an appeal against the Order dated 12-11-2007 passed by the District Judge, Jalandhar, vide which, the District Judge, Jalandhar, dismissed the objection petition under Section 34 of the Arbitration and Conciliation Act, 1996, (here-in-after referred to as `the Act') filed against the award dated 28-11-2003. F.A.O No.1272 of 2008 2 While challenging the award dated 28-11-2003 as well as the order dated 12-11-2007, learned counsel for the appellants submitted that while granting claim No.7, the arbitrator failed to consider that the contract agreement clearly specified that the work is to be executed in the restricted area and working hours were between 7.00 A.M to 7.00 PM and the contractor was to ascertain the actual working hours before quoting the tender and that the contract having been completed within 24 months against the working period of 30 months was clearly enough to prove that adequate working hours were allowed to the contractor. The Arbitrator has ignored all the pleadings of the appellants and as such, the award ought to have been set aside on this score alone as the District Judge, Jalandhar, failed to take into consideration clause No.4.7.1 ad 4.2.2 of the special condition of the contract agreement which provides for anticipated restriction on labour movement due to security reasons and the contractor was aware of the fact of restrictions of entry into and exist from and working within the restricted area and the total number of working hours for a Unit are prescribed in the regulations. Learned counsel for respondent No.1, however, pointed out that as per the findings recorded by the Arbitrator, the initial working hours available to the contractor were subsequently altered and unit regulations referred to in the contract, were not filed by the Union of India. It was further stated that on account of the same, the Arbitrator had to estimate the reduction in the working hours and while making the assessment, the Arbitrator held the loss in the region to be forty five minutes to one hour per working day, which was, in any case, on the lower side and the loss having been accrued to one of the parties, it was but fair and natural that the said party is to be compensated accordingly. Learned counsel for the parties have been heard. The basic dispute is with respect to claim No.7, which is loss F.A.O No.1272 of 2008 3 due to curtailment of working hours by the depot authorities. The amount of claim was for Rs.20,000,000/-. The revised claim was for Rs.54,74,000/-. However, only Rs.7,53,000/- were granted against this claim. The entry and exit of the work and working hours as per condition 4.7.3 and 4.7.4 was as follows :- (a) Special condition 4.7.3 “Contractor's materials, transport etc. shall normally be permitted to come in/go out of the area between 6 AM to 6 PM only.” (b) Special condition 4.7.4 “Contractor may also be allowed to carry out the work beyond 6 PM and upto 6 AM (day and night) with prior approval of GE but no movements of materials and transport to/out of site of works shall be permitted during night unless special permission is obtained from the factory/unit authorities.” It was subsequently found by the contractor that the things were all right for about a month but subsequently, problem started when the vehicles were not allowed entry/exit between 6 AM to 8 AM and the working hours were further reduced by 2 to 2 ½ hours. Learned counsel for the appellants has not been able to deny the same but submitted that the contractor was deemed to have full knowledge of restriction of entry/exit from the working within the restricted area and in any case, the period of completion of contract was given as 30 months after taking into account such restrictions. Even then, the contract had finished within 24 months by getting relaxation in the restrictions by the unit authorities, thus, he cannot get any benefit of the reduced working hours. The Arbitrator while deciding claim No.7, recorded thus :- “ I had carefully heard the arguments of contractor in support of his case of loss of two hours per day. Based on the explained details, my estimate is F.A.O No.1272 of 2008 4 that this loss would be in the region of forty five minutes to one hour per working day. This was neither contemplated nor could have been envisaged. The contract provision of leaving this vital aspect, that has a direct hearing on the quotation of the contractor, to the controlling unit cannot be accepted. What is relevant is what the tender envisaged (directly or indirectly) and what was actually found. UOI's action of washing off their responsibility by the safely worded condition of contract leaving it in the hands of a third party cannot be accepted. What the parties to the contract took it at the time of entering into contract is relevant. I cannot therefore accept the arguments of UOI against this claim. If there is a material change affecting the working hours during the currency of contract, UOI has to bear the responsibility whether this change is caused by their action or by unit controlling the area. If, by the change, a loss is accrued to the other party, it is but fair and natural that it be compensated by UOI. It will be fair and justified if loss in working hours for labour would work out to Rs.7,53,000/-. The argument that the work was completed 6 months ahead of schedule does not stand in the way. The central issue is that working hours were lost due to change circumstances on the part of UOI or the unit controlling the area. Part `1' of the claim is therefore sustained for Rs.7,53,000/-. UOI has offered no comments on the working details of the claim and I therefore take these as correct except for the element of loss of working hours per day.” The Arbitrator having taken into account the entire scenario and the evidence, did not grant any claim for the non-utilisation of any resources except the labour employed by the claimant. The award is therefore just and fair and no fault can be found with the same. If a labour is engaged to work on site for a particular number of hours, he will have to be paid the entire wages for the day, even though, he did not work for the entire period on account of the restriction in the working hours. The thirty F.A.O No.1272 of 2008 5 months' period was the maximum period for the completion of the contract. It was completed within 24 months but in case, there was no restriction on the working hours, the contractor may have completed the work in even less number of months than 24 months. Thirty months was the outer limit. Moreover, there is nothing to suggest that the award was beyond the scope of the Arbitration clause or is contrary to the agreed condition of the contract. Even otherwise, the award can be set aside only on the ground as enumerated under Section 34 of the Act. No ground under Section 34 of the Act has been made out. The appeal before this Court under Section 37 of the Act is almost like a second appeal and it is not open to the Court to set aside the award on facts as arrived at by the Arbitrator. No illegality which may go to the root of the matter has been pointed out which may render the award to be unfair and unreasonable. In view of the above, the appeal is, hereby, dismissed. (NIRMALJIT KAUR) 21.10.2009 JUDGE gurpreet