1997 PLP 2034 (MLD)

"(1) Whether the KPT had floated contract for three years from 1986, 1987 and 1988 for the fabrication of uniform of its employees workers? (2) Whether the Agreement stands cancelled in terms of clause 7 of standard conditions of the contract? (3) Whether the claimant had obtained measurement of the KPT employees as per the terms and conditions of the contract? (4) Did the claimant fail to act to complete/perform the contract as per schedule as contained in the objections letter dated 2fi‑1‑1987? (5) Whether the uniforms were ready for inspection as well as for delivery on the stipulated period. (6) Did the Director of claimant disallow the team of objector to inspect the uniforms or any material related to it? . (7) Whether the abovenamed persons openly declared that they were interested in cash allowances instead of uniforms for the worker of KPT? (8) Were the uniforms produced not of standard quality? (9) Was the rejection of uniforms by the objectors justified? (10) Are the claimants entitled to claim? If so how much? The first issue has been dealt with in para. 13 of the Award stating therein that the tender was for three years but the contract for supply of uniforms executed by the parties was only for one year i.e., for the year, 1986. Issues Nos.2 to 9 are inter‑connected issues as the same pertained to the terms contained in clause 7 of the standard conditions of the contract whether the uniforms which were the subject‑matter of the contract, were prepared according to the specifications and if the workers of the KPT were interested in cash allowance instead of the said uniforms which, apparently, resulted in the official cancellation of the said contract. All the issues have been discussed in detail in the said Award and the Arbitrator, after considering all the evidence and arguments put forward by the parties, came to the conclusion that the cancellation of the contract was without any justification. Mr. Salman Hamid, learned counsel for the defendant, has argued that the Award itself is vitiated by announcing the same beyond the statutory period of 4 months. The proceedings before the Arbitrator show that the counsel appearing for the defendant before the Arbitrator took no objection to the continuation of the proceedings and has made no reference to the Court for extension of time. Both the parties, by continuing their appearance before the Arbitrator acquiesced to the enlargement of time and now are estopped from raising objection to the same. In the case of Haji Ghulam Muhammad v. The Federation of Pakistan PLD 1967 Lah. 204, it was held by their Lordships that "in view of the above weight of authorities we hold that the award cannot become invalid in the instant case due to mere fact that it was not given within four months, the reason being that the appellant did not raise this objection at the proper time and rather acquiesced in the continuance of the arbitration proceedings, led evidence and took the chance of favourable decision and when the decision had gone against him he cannot be allowed to say that the arbitration proceedings extended beyond the time limit implied in the Arbitration Agreement. If the terms of an agreement can be changed by the parties by their mutual consent (as for example by writing) then it is obvious that the terms about time matter could also be changed with their consent implied from their conduct." Yet in another case reported as WAPDA through its Chairman and another v. Khanzada Muhammad Abdul Haq Khan Khattak & Co. 1983 CLC 1792, it was held that "from all this what has been stated above and numerous authorities on the subject cited, we are satisfied that the respondent had all along been making appearance before the arbitrator through Haji Sana Ullah Khan, without having taken any objection to the expiry of the initial period, is estopped to raise any objection on that score". In view of the above and numerous authorities, and as I have already held hereinabove, the defendant by his continuous appearance before the arbitrator without raising any objection as to the expiry of time limit, himself acquiesced to the enlargement of time and as such is now estopped from raising this objection. Next contention raised is in regard to Issue No.1. According to him though the Arbitrator had concluded both the sides admit that the contract for supply of uniforms was executed for one year i.e. for 1986 yet the issue has been affirmed and this is misconduct of proceedings. I may say here that the learned counsel did not care to read the whole of paragraph

13. What the learned Arbitrator has concluded is that the witness of the defendant admitted that tender was for three years but contract for supply of uniforms was executed for one year i.e. 1986. It is thus clear that there is no error apparent in regard to this issue. The second contention raised on behalf of the defendant that the arbitrator mis-conducted the proceedings by consolidating the Issues Nos.2 to 9, is also misconceived and untenable. The phrase misconduct the proceedings in the judicial sense "means that the arbitrator handled the proceedings in such a way that the same was likely to cause substantial miscarriage of justice". In the present case the arbitrator issued notices to the parties, entertained claim, recorded evidence, heard parties and after considering the entire record has given the detailed reasoning for reaching the decision that he awarded. To say that by merely consolidating the issues, which are inter‑related and over lapping, the same could be regarded as misconduct of the proceedings or it was misconduct on the part of arbitrator is wrong to say the least. The award given by the arbitrator is a speaking Award and the same has been given without traversing beyond the reference or submissions made by the parties and, as such, he cannot be said to have misconducted himself and the proceedings before him. The next contention of the learned counsel for defendant was that there is no justification for the compensation granted by the Arbitrator. In paras. 20 to 25 the learned Arbitrator has discussed in detail each and every item on which claim has been made and the same resisted and denied by the defendants. The documentary evidence as well as oral evidence have been referred to and out of total claim of Rs.3,82,389 plus . Rs.6,50,000 only Rs.75,000 have been awarded. The learned counsel for the plaintiff in reply, submitted that although a meagre sum of Rs.75,000 has been awarded as compensation but the plaintiff has accepted the same to settle the dispute between the two both being Government‑owned organisations. The contention raised by the counsel for the defendant has no force. In my opinion the Award is a speaking award. In the case of M/s. Hafeez. Construction Co. v. M/s. lavedan Cement Ltd. 1989 CLC 885, it was observed that: " Although the recently added section 26‑A provides that the Arbitrator shall state in the award the reasons for the award in sufficient detail to enable the Court to consider any question of law arising out of the award; yet it is nowhere made compulsory for the arbitrator to frame issues and to give separate findings on each of the issues in strict sense. In this connection reliance was placed on Muhammad Salim Butt v. M/s. Trading Corporation of Pakistan 1986 CLC 254 at 261, where it was held as under: 'To meet this objection it would suffice to say that the umpire has impliedly found that the defendant was not entitled to forfeit the performance bond by encashing the bank guarantee. Since under the law he was not required to give separate findings on each issue of point raised before him and he was also not required to give reasons for his findings or award. However, if any, authority is needed reference may be had to Hamdard Dawakhana (Wakf), Karachi v. K.B. Joseph & Co. Ltd., Lahore and another PLD 1971 Kar.

279. In this case the arbitrator had framed the issues and had not given separate decision thereon and it was observed by Dorab Patel, J. (as he then was) that the issues were framed by the arbitrator merely for his own convenience and he was not required to consider every issue and as such the arguments of the learned counsel were without merits. The Sole Arbitrator has given a speaking award' and thus he has sufficiently complied with these provisions" Even otherwise it is a settled principle of law, that the Court hearing the application for setting aside an Award could not constitute itself into a Court of appeal over the decision of an arbitrator. In the case of Suleman Haji Muhammad & Co. v. State Bank of Pakistan PLD 1960 (W.P.) Kar.

78. It was observed that:-- "It appears to me that an arbitration clause in substance ousts the jurisdiction of the Court except for the purpose of controlling and preventing misconduct and for regulating the procedure after the pronouncement of the award. If the award is otherwise valid, the Courts of law cannot interfer and review it on merits and say whether it is good, bad or indifferent." In view of the above discussion, this application being C.M.A. 2738 of 1993 is dismissed. The award is made rule of the Court and decree be prepared accordingly. A.A./P‑16/K Order accordingly.