MEHTA TEJA SINGH V.

UNION OF INDIA
15. Now it is not in dispute that the technical examiner's report dated 8th September,
1971 was not produced by the department before the arbitrator. Nor was the
contractor allowed to inspect the report. Without seeing the report the arbitrator
made his award. Can such an award be upheld? This is -the question.
16. To my mind the technical examiner's report was a vital document. In order to
arrive at a just and fair decision it was incumbent on the arbitrator to order its
production. It was a material document. Without the report it was not possible to
resolve the controversy between the department and the contractor. Throughout the
department's case was that they were entitled to make a recovery because of the
report of the technical examiner under Clause 67 of the contract. This was the basis
of the claim. Without the technical examiner's report being produced before the
arbitrator how could any decision be reached on the respective contentions of the
parties? The department contended that the technical-examiner has found that
overpayment has been made. The contractor on the other hand denied this. The least
the arbitrator could have done was to order its production. The contractor asked for
the report. The Union in their counter-claim asserted that they were not bound to
show the report to the contractor. In my opinion this has resulted *in grave prejudice
to the contractor. Without seeing the report it was not possible to defend the
counter-claim. The arbitrator had a duty to -be fair to the parties. Fairness demanded
that he should have ordered the document which was the basis of the claim to be
produced. Any decision arrived at on claim No. 2 without looking at the report is
bound to result in miscarriage of justice. This is exactly what was happened in this
case.
17. Under S. 30(a) of the Arbitration Act an award is liable to be set aside if the
arbitrator hag misconducted himself or the proceedings. Misconduct under S. 30 has
not the connotation of a moral lapse. It comprises legal misconduct. Where the
arbitrator refuses to order production of material documents having a direct bearing
on the dispute between the parties and which would have thrown ample light on the
controversy he is guilty of misconduct because without the document he cannot come
to a just and fair decision. This is what the Supreme Court has held in K. P. Poulose
V. State of Kerala, .