HARYANA STATE CO-OPERATIVE LABOUR AND CONSTRUCTION FEDERATION LIMITED Vs. COMMISSIONER & SECRETARY TO THE GOVERNMENT AND ORS.

JUDGEMENT

(1.) THE writ petition challenges the order passed by the Secretary to Government, Haryana Cooperative Department purporting to exercise jurisdiction under Section 115 of The Haryana Cooperative Societies Act, 1984, (hereinafter referred to as the 'Act 1984') which set aside the award passed by the Arbitrator appointed to resolve the dispute between the petitioner and respondent Nos. 3 & 4. The dispute related to the payments claimed by the petitioner for the work done and the claim put in by the respondent Nos. 4 was that there had been a delay in completion of works that resulted in escalation of cost and that far from the petitioner being entitled to any amount, respondent No. 4 was entitled to assessment of damages on various claims. An Arbitrator was appointed in terms of the contract of work on 01.05.1995 and he had entered upon reference on 06.05.1995. He proceeded to announce the award on 31.07.1996. Out of 19 heads of claims, 17 of them were declined. Claim No. 2 & 6 that referred respectively to alleged repair works to sugar godown due to heavy rains and a claim on account of installation of tubewell alone had been found in favour of the petitioner. The award dealt with the claims made by respondent No. 4 as well and declined out of 12 heads of claim, all heads except claim Nos. 1,11 &12. On an overall consideration after giving credit to the claims awarded in favour of respondent No. 4, the arbitrator awarded Rs. 86,65,157/ - as the amount due and payable by respondent No. 4. This was brought in challenge by means of an appeal under Section 114 of the Haryana Cooperative Societies Act for setting aside the award on several grounds including that the award was a non -speaking one and that the Arbitrator had misconducted himself by undertaking spot inspection and becoming a witness in the adjudication which was bound to be rendered impartially.

(2.) THE specific contention of challenge was as regards the fact that the award was non -speaking in the sense that Rule 85 under the Rules of 1989 required that the parties were heard and the award to be given in accordance with justice, equity and conscience but the order was totally a non -speaking one. The appellate authority held that there was no specific requirement that award was required to be a reasoned and speaking one. The appellate authority held that it had no power to go into the matter as to how the evidence of the parties were appreciated and there could be no interference unless the Arbitrator had misconducted himself. Taking the objections regarding the several aspects that led to the delay in completion of the works and clearance of the sites, the appellate authority held that the Arbitrator was a judge of both the questions of fact and law and finality attached to his judgment, no matter that reasons have not been set forth. The appellate authority observed that he had gone through the entire proceedings running to 1926 pages and the objections. The Arbitrator took more than a year to complete the enquiry and the proceedings of the Arbitrator which formed part of the judgment revealed that the Arbitrator had taken site inspections and had seen also Measurement Book Statements (MBS). He also observed that the Arbitrator had taken into consideration the contentions of the respondents that respondent No. 4 had not made the payment for certain unmeasured work also and the assessment under each of the claims had been made on the basis of evidence which he had collected. He proceeded to confirm the award passed, holding that there was no merit for an interference. Against this order, revision had been filed under Section 115 of the Cooperative Societies Act, where after recording three objections taken by the appellant, namely; that the award had been passed without taking the extension from the competent authority, that the Arbitrator had accepted some claims which were not "agreed into by the parties" and that the petitioner had failed to complete the works within the stipulated period, and after setting out the objections taken in the revision, the revisional authority observed that the Arbitrator had misconducted himself by awarding the claims not agreed to between the parties and not taking extension after the expiry of six months. He was, therefore, of the view that the award given by the Arbitrator was null and void.

(3.) THE contention was that in the present case, as per the information furnished to the answering respondent, no resolution had been passed by the Society to challenge the award. I must observe that there is no contention at all that the Managing Director was not competent to represent the Society. If the contention is that there is no resolution passed to challenge the award, it was surely incorrect and not a correct position of fact. The abstract of proceedings of the meeting of the Board of Directors shows that the meeting held on 12.08.1997 shows that there were 8 persons present including the Managing Director and the Executive Engineer. The Chairman, Director, Registrar PWD and Under Secretary were also present in the meeting and the resolution was to challenge the decision contained in the impugned order. After the Executive Engineer was authorized to sign the document, it should have been possible for the Executing Officer to sign that necessary papers. However, if there was a decision to file a writ petition before this Court on behalf of the Society, the Managing Director as a person who is competent to represent the affairs at all times would require no specific authorization. The decision cited by the learned counsel appearing on behalf of the respondent referred to the situation of a Secretary filing the appeal with the sanction of the Managing Director in the judgment in Haryana State Coop. Supply and Marketing Federation Limited case (supra).The Court held that in the absence of the authorization of the Managing Director, the Secretary would not be competent. The Division Bench was not considering the case in the situation where the Managing Director was representing the Society. In the same manner in The Uddat Bhagat Ram Nazool Land Cooperative Society case (supra) the appeal had been preferred by the President of the Society and not the Managing Director. Again there was nothing to show that there was any resolution passed to bring the challenge in the Court. It was the absence of resolution that was found in both the cases as relevant. I find in this case, there is indeed a resolution authorising the Society to bring a challenge through a writ petition. Therefore, there is nothing inherently wrong about the maintainability of the writ petition.