Gas Authority Of India Ltd. vs Bhagheertha Engg. Ltd.
2002 Latest Caselaw 606 Del

JUDGMENT

J.D. Kapoor, J.

1. Petitioner - Gas Authority of India Ltd. (in short "GAIL") has through this application under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') challenged the award dated February 16, 2001 in respect of almost every claim and counter-claim awarded by the Arbitrator.

2. The award has been assailed mainly on the premise of Section 34 of the Act i.e. the award deals with a dispute not contemplated by or not falling within the terms of submissions made to the Arbitrator and also that it is in conflict with public policy.

3. Relevant facts need to be recapitulated in brief.

The petitioner GAIL floated a tender for mechanical works for a LPG recovery project at Lakwa (Assam). In terms of the notice inviting tender, every bidder was entitled to make bid in accordance with the tender document. It was open to a bidder to seek labour escalation and extended stay compensation. The claimant/respondent initially in the tender sub sought these escalation but the same later on withdrew by the claimant/respondent. The final contract that came to be executed between the parties excluded compensation of above referred items. The contract was awarded by letter of award dated 24/27th January, 1997 and the entire work was to be completed in 13 months from December 20, 1996. The stipulated date of completion of work was 19.1.1998. The work came to be completed on 15.11.1998.

4. The relevant pre tender clauses are as under:-

7.8.2 Extended Stay Compensation

In case bidders indicates rate for extended stay compensation as per stipulation given in SCC, the rate indicated shall be considered for evaluation purposes per stipulations given in SCC.

7.8.3 Compensation for Delay

In case the tenderer stipulates maximum compensation for delay less then 10% and the percentage indicated by the tenderer towards compensation for delay multiplied by the quoted contract price shall be loaded for evaluation purpose.

8.1

Contract documents for agreement shall be prepared after award of works to the successful tenderer by telegram/Fax/Detailed letter of Intent. Until the final contract documents are prepared and executed this tender document together with the annexed documents, modifications, deletions agreed upon by the owner and Bidders acceptance there of shall constitute a binding contract between the successful tenderer and the owner based on terms contained in the aforesaid documents and the finally submitted and accepted prices.

Clause 87(ii) SCHEDULE OF RATES TO BE INCLUSIVE: (PAGE 76):

The prices/rates quoted by the CONTRACtor shall remain firm till the issue of FINAL CERTIFICATE and shall not be subject to escalation. Schedule of Rates shall be deemed to include and cover all costs, expenses and liabilities of every description and all risks of every kind to be taken in execution, completing and handing over the WORK to the owner by the CONTRACtor. The CONTRACtor shall be deemed to have known the nature, scope, magnitude and the extent of the WORK and materials required through the CONTRACT DOCUMENT may not fully and precisely furnish them.

Tenderer's shall make such provision in the Schedule of Rates as he may consider necessary to cover the cost of such items of WORK and materials as may be reasonable and necessary to complete the WORK. The opinion of the ENGINEER-IN-CHARGE as to the items of WORK which are necessary and reasonable for COMPLETION of WORK shall be final and binding on the CONTRACtor, although the same may not be shown on or described specifically in CONTRACT DOCUMENTS.

21.0 COMPENSATION FOR EXTENDED STAY (PAGE 115):

The Clause No. 87 (vi) of SCC is modified to the following extent:-

In case the time of completion of work is delayed beyond the time schedule indicated in the tender document plus a grace period equivalent to 1/5th of the time schedule or 2 months whichever is more, due to reasons solely attributable to owner, the contractor shall be paid extended stay compensation in order to maintain necessary organizational set up and construction tools, tackles, equips. etc. at site of work.

The bidder shall mention the rate for such extended stay compensation per week in the 'UNPAIRED PART' which will be considered for evaluation for 1/5th of the time schedule or 3 (Three) months, whichever is less. In case bidder does not indicate the rate for extended stay compensation in UNPAIRED PART, it will be pressured that no extended stay compensation is required to be paid to the contractor.

In case the compensation of work is delayed beyond a period of 3 months after the grace period then both the owner and the Contractor shall mutually decide the future course of action including payment of further extended stay compensation.

5. Another relevant and material document is letter of award dated 24/27.1.1997 (Ann. R-O at page 14 Vol. II) which is as under:

"With reference to the subject tender and to you offer No. BES/AE-172/95:1348 dated 25th October, 95 and subsequent correspondence including and put your letter No. BES/AE-187/2226 dated 21st November 1996 and in continuation to the Fax of Intent dated 20th December, 96, we are pleased to issue this Letter of Award as detailed below:

1.0 CONTRACT VALUE

The estimated value of the contract works out to Rs. 6,20,11,954.30 (Rupees Six Crores Twenty Lakhs Eleven Thousand Nine hundred & Fifty Four & Paise Thirty only) on the basis of the unit rates included in the Schedule of Rates attached as Annexure-B, after taking into account a discount of 14.07% (Fourteen point zero seven percent) applicable on all unit rates, and a lumpsum discount of Rs. 50,000/- (Rupees Fifty Thousand only). However, the estimated contract value shall be subject to variation depending on the items and the quantities in the Schedule of Rates actually executed, measured and accepted for payment.

2.0 TIME SCHEDULE

The entire work covered under this contract shall be competed in Thirteen Months from 20th December, 1996 i.e. by 19th January, 1996.

6. According to Mr. Arvind Nigam, learned counsel for the petitioner the conjoint reading of the aforesaid clauses particularly the letter dated 24/27.1.1997 i.e. the letter of award shows that the contract was fixed rate contract as per schedule of rates was agreed between the parties, the work was to be competed in 13 months and para 5 of the letter stipulated that contract documents comprised of the tender document, the fax of intent dated 20.12.96, the letter of award including all annexures and the contract agreement on stamp paper. It is further contended that in terms of these contract documents, escalation and overstay compensation was excluded and therefore Arbitrator has traversed beyond the terms of the contract by awarding claim 1B and claim 2 which were towards prolonged period of contract and escalation and since both these claims were strictly prohibited by the terms of the contract these are liable to be set aside.

7. While canvassing the proposition that wherever there is express terms of the contract, the Arbitrator is debarred from interpreting or giving its own meaning, Mr. Nigam has placed reliance upon New India Civil Erectors (P) Ltd. v. Oil & Natural Gas Corporation wherein claim was made on account of escalation in the cost of construction during the period subsequent to the expiry of the original contract period in spite of clear stipulation in the contract that the above price is firm and is not subject to any escalation under whatsoever ground till the completion of the work. It was held that the aforesaid stipulation provides clearly that there shall be no escalation on any ground whatsoever and the said prohibition is effective till the completion of the work. The learned arbitrators could not therefore have awarded any amount on the ground that the appellant must have incurred extra expense in carrying out the construction after the expiry of the original contract period. It was further observed that the aforesaid stipulation is binding upon both the arbitrators.

8. In the instant case the arbitration Clause No. 107.1 reads as under:-

"107(1) All disputes or difference whatsoever which shall at any time arise between the parties hereto touching or concerning the works or the execution or maintenance thereof this contract or the rights touching or concerning the works or the execution effect thereof or to the rights or liabilities or the construction meaning operation or effect thereof or to the rights or liabilities of the parties or arising out or in relation thereto-whether during or after completion of the contract or whether before or after determination, foreclosure or breach of the contract (other than those in respect of which the decision of any person is by the contract expressed to be final and binding) shall after written notice by either-party to the contract to the other of them and to the Appointing Authority hereinafter mentioned be referred for adjudication to a sole arbitrator to be appointed as herein after provided."

9. In the understanding of Mr. Rajiv Sawhney, learned senior counsel for the respondent the aforesaid clause of arbitration has the widest amplitude inasmuch as the Arbitrator was empowered to decide all disputes touching or concerning the works or the execution or maintenance thereof and the award confines only to those disputes which concern the works or the execution of maintenance of the works and not beyond them. None of the items awarded by the Arbitrator, according to Mr. Sawhney, is covered under the excepted matters.

10. According to Mr. Sawhney, Clause 87 is in respect of additional expenditure incurred for execution of the work in the prolonged period of the contract and since the award pertains to money claim it by no stretch of imagination be termed against the public policy of India.

11. While refuting the contention of the counsel for the petitioner that the Arbitrator traversed beyond the terms of the contract by awarding the claim towards prolonged period of contract and over stayed compensation, Mr. Sawhney contends that the offer of respondent by way of letter dated 28.9.1996 to the effect that he would not make any charge for the prolonged period of contract is of no relevance as when the final contract was signed on 24.1.97, no such offer formed part of the contract. Final contract is the only binding contract and no other communication or agreement or offers or counter-offers made by the parties as these fall within the parameter of negotiations.

12. Claim No. 2 is on account of over stayed compensation for the prolonged period of contract which according to Mr. Sawhney deals with the overheads on account of prolonged period of contract and it was also for compensation towards prolonged period of contract.

13. Clause 8.3 specifically provided that all correspondence between the owner (petitioner) and EIL i.e. the respondent prior to issue of Telex of Intent dated 24.1.97 shall be treated as null and void. According to Mr. Sawhney, the letter of Intent also indicates in Clause 5 'contract documents; wherein the aforesaid letter dated September, 1996 does not figure. Other relevant portion of Letter of Award are as follows:-

"The Agreed Variations listed above, the tender document, the Fax of Intent dated 20.12.96, the Letter of Award along with all annexures and the contract agreement signed between owner and Contractor, shall form the Contract documents. All other documents and correspondence exchanged prior to 20.12.96 shall be null and void and shall be deemed to have been unconditionally withdrawn by the contractor in favor of the terms and conditions of the contract document."

14. Thus in nutshell the contention of Mr. Sawhney is that claim No. 1(b) comes within the ambit of terms of submissions to the award as the earlier offer made by the respondent by way of letter dated September, 1996 did not form part of the concluded contract which was concluded on 24.1.97 rather earlier correspondence of any kind between the parties except letter of award dated 24.1.1997 which formed part of the termed documents was specifically excluded from the terms of the agreement, and therefore the award in respect of claim No. 1(b) cannot be deemed as an award beyond the terms of the reference or submission to the Arbitrator. Admittedly Clause 87.6 of the general conditions did not permit the compensation for the extended period of the contract but these were specifically allowed under Clauses 1.3 and 21 of the special conditions.

15. While distinguishing the award with regard to claim No. 1(b) pertaining to the compensation for prolonged period of the contract and the award in respect of claim No. 2 which is on account of over stayed compensation Mr. Sawhney contended that claim No. 2 is primarily for over heads whereas claim No. 1(b) is compensation for idling of machinery, materials, labour etc. and therefore none of the claims is over lapping as the compensation for idling of labour, machinery etc. is distinguishable from the compensation in relation to the overheads. According to Mr. Sawhney overheads may include labour, salaries, other costs at site such as electricity water and other such like expenses that party may have to incur.

16. According to Mr. Sahni the intention of Clause 1.3 of the special conditions of the contract is that wherever there is a variation or inconsistency between the provisions of the general conditions of the contract and the special conditions of the contract the latter will prevail. Similarly, Clause 21 of the special conditions specifically provided that Clause 87 (VI) of the general conditions of the contract shall stand modified as stated therein. Clause 21 provides for payment for works done during extended period. In the opinion of Mr. Sahni the interpretation of Clause 21 is solely within the jurisdiction of the arbitrator and award in this regard cannot be interfered through objections under Section 34 of the Arbitration Act of 1996 as the court does not sit in appeal while examining or scanning the findings of facts or interpretation of the terms of the contract by the arbitrator.

17. As regards Clauses 1.3 and 21 of the special conditions which have been resorted to by the petitioner, Mr. Sahni contends that Clause 21 of the special conditions stipulates for payment of compensation from the extended period of a contract in the circumstances stated therein and, therefore, it is for the arbitrator to decide whether those circumstances existed or not and the finding of the arbitrator in this regard is final and not subject to scrutiny by the court as it would amount to reassessing of the material on the record and also interpreting the clause as the interpretation of the clause of the term provided by the arbitrator has to be acted upon and not interfered with.

18. Apart from this Mr. Sahni has also contended that by not preferring the objection before the Arbitral Tribunal under Sub-clause (2) and Sub-clause (3) of the Section 6 of the Act, the petitioner invited the Arbitrator to decide the disputes regarding the claim on account of the extended period and this act on the pat of the petitioner amounts to statutory waiver as provided under Section 4 of the Act which reads as under:

"4. Waiver of right to object. -

A part who knows that -

(a) any provision of this Part from which the parties my derogate, or

(b) any requirement under the arbitration agreement,

has not been complied with and yet proceeds with the arbitration without stating his objection to such non-compliance without under delay or, if a time limit is provided for stating that objection, within that period of time, shall be deemed to have waived his right to so object."

19. Clause (2) of Section 16 provides that a plea that the Arbitral Tribunal does not have jurisdiction shall be raised not later than the submission of the defense and that a party shall not be debarred from raising such a plea merely because that he has appointed or participated in the appointment of an arbitrator. Sub-section (3) of Section 16 provides that a plea that the Arbitral Tribunal is exceeding the scope of his authority shall be raised as soon as the matter is alleged to be beyond the scope of its authority during the arbitral proceedings.

20. According to Mr. Sahni once the petitioner has waived its right under Section 4 of the Act of preferring such objections or pleas before the Arbitral Tribunal it is no more open to the petitioner to raise these pleas by way of objections under Section 34 and it is in view of the aforesaid specific provisions of the Act that fresh appraisal of the evidence is not available to the Court under the new Act of 1996.

21. Though ordinarily and under the old Act of 1940, courts are advised not to examine and scrutinise the award by way of appeal or by way of re-appreciating or re-assessing the evidence and the material or examine the findings of facts with an object to find fault, even if Arbitrator arrives at erroneous conclusion, it is only in extreme cases that the award is liable to be set aside where the Arbitrator traverses beyond the arena of the terms of the agreement and rightly so as the Arbitrator is the creature of the agreement itself and cannot go beyond it. Similarly if he ties himself down to such legal proposition which when examined is found to be wholly unsound the court should step in and set aside such an award.

22. However, Section 34 has further curtailed the scope of challenge to the award and narrowed it down broadly to the following vices;

(i) if it deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration;

(ii) if it contains decision son matters beyond the scope of submission to arbitration, provided that if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside;

(iii) if the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force;

(iv) if the arbitral award is in conflict with the public policy of India;

(v) if the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81.

23. Section 75 provides for keeping all matters relating to the conciliation proceedings confidential and this confidentiality extends to the settlement agreement except where its disclosure is necessary for the purposes of implementation and enforcement and Section 81 pertains to the admissibility of evidence of other proceedings, namely, the views expressed or suggestions made by the other party in respect of a possible settlement of the dispute, admissions made by the other party in the course of the conciliation proceedings, proposals made byu the conciliator, the fact that the other party had indicated his willingness to accept a proposal for settlement made by the conciliator.

24. As regards the meaning of the words "within the terms of the submission" to arbitration appearing in Sub-clause (4), Hon'ble Supreme Court had the occasion to deal with this aspect in Olympus Superstructures Pvt. Ltd. v. Meena Vijay Khetan and Ors., and observed that the word 'terms of the submission to arbitration' in S. 34(2)(a)(iv), refer to the terms of the arbitration clause. This appears to be the meaning of the word if one refers to Section 28 which uses the word 'dispute submitted to arbitration' and to Section 43(3) which uses the word 'submit' future dispute to arbitration.

25. It is apparent from these observations that determining anvil as to whether a particular dispute is not contemplated by the agreement or is not within terms of submissions to the Arbitrator is the arbitration clause alone and no other clause. If the arbitration clause places certain embargoes or restrictions upon the Arbitrator to deal with a particular aspect of the contract and the Arbitrator still does not render the decision as per the said terms such as award has to fall beyond the realm of the Arbitrator and is liable to be set aside.

26. Let us test the findings of the Arbitrator on the anvil of aforesaid principles.

27. Claimant-respondent initially sought compensation towards extended stay compensation and labour escalation but these were specifically withdrawn by the respondent during the course of negotiations between the parties. So much so the claimant withdrew his bid. On this basis, the bid was evaluated for award of works. Thus the contract that came to be executed between the parties was a firm fixed unit rate contract and excluded extended stay compensation and labour escalation.

28. Fax of intent was issued on 20th December, 1996. Thereafter letter of award was issued on 24/24-1-1997. This letter of award prescribed completion period as 13 months from the fax of intent, i.e. 20.12.1996 till 19.1.1998. The letter of award also included and clarified contract documents that will govern relationship between the parties. Along with contract documents is the statement of agreed variations. In this statement of agreed variations there is no variation agreed between the parties for either extended stay compensation or labour escalation. In fact statement of agreed variations in the last para contains the clause which reads like this: "The Agreed Variations listed above, the tender document, the Fax of Intent dated 20 Dec-96, the Letter of Award along with all annexures and the contract agreement signed between owner and Contractor, shall form the Contract Documents. All other documents and correspondence exchanged prior to 20 Dec 96 shall be null and void and shall be deemed to have been unconditionally withdrawn by the Contractor in favor of the terms and conditions of the contract document." Based upon these contractual stipulations, contract was performed and completed on 15th November, 1998 whereas stipulated date of completion was 19th January, 1998.

29. As per letter of award dated 24/24.1.1997, the contract was firm, fixed unit rate contract which included compensation for extended stay and labour escalation. The parties were bound by these contractual provisions and the learned Arbitrator was also bound by these provisions. In seeing to grant these escalations, the Arbitrator has made an award contrary to Section 34(2)(a)(iv) of the Act.

30. In terms of Clauses 7.8.2 & 7.8.3 to the instruction to bidders (Volume-I) it was open to the arbitrator to indicate rate for extended stay compensation and for compensation for delay. However, during the course of negotiations between the parties by letter of 28.9.1996, the contractor had specifically requested for extended stay compensation and delay. Having withdrawn their request for extended stay compensation, the bid was converted into firm fixed unit rate contract as per Clause 18 & 21 of SCC.

31. Further Clause 87 of GCC prescribes that rates are to remain firm till issue of final certificate and will cover every risk of possibility of all delay. Clause 87 of the GCC could have been modified or altered by Clause 21 of SCC in the event the contractor prescribed rate for compensation. In that event, this alteration, change, modification would have been reflected in agreed statement of variations. The agreed statement of variation indicates to the letter of award and does not contain the novation of Clause 87. The claimant cannot have both ways. In spite of having the bid evaluated as firm fixed unit rate without escalation, he could not have sought claim for extended stay and labour escalation subsequently which did not form part of agreed terms. No formula was agreed.

32. Clause 5 of letter of award include the tender document, the fax of intent dated 20th December, 1996, the letter of award including all annexures and the formal contract agreement. The first annexure to the letter of award is the statement of agreed variations. This statement does not contain any agreed variations for any escalation either labour or extended stay or other stay.

33. As regards the contention of the respondent that the petitioner should have made a preliminary objection before the arbitral tribunal under Section 16 and in the event the preliminary objection was decided by the arbitral tribunal it should have preferred an appeal under Section 37(2) it is pointed out that such a preliminary objection was in fact raised in the reply. The arbitral tribunal did not decide this preliminary issue. The entire discussion on all issues is contained only in the award.

34. Under Section 37(2) an appeal will lie in the event the plea under Section 16(2) and 16(3) is accepted. In the event the plea under Section 16(2) & 16(3) is rejected the challenge can only be against the ultimate award as contemplated under Section 16(6) of the Act. Article 16 of the Model Law of UNCTRAL makes a departure from the Act of 1996. Under Article 16(3) of the Model Law either of the parties is entitled to appeal within 30 days either on a preliminary question or against award on merits. But in the Act of 1996 the appeal lies if the plea under Sub-section 16(2) is accepted. Thus in case the plea of the petitioner had been accepted by the Arbitrator it was open to the respondent to challenge it by way of appeal. If the plea raised in the reply by the party is rejected by way of final award the same in challengeable by way of objections under Section 34.

35. In para 8 of the award the Arbitrator has though recorded the contention/objection of the petitioner that the contract itself rules out any compensation for delay still he did not decide this issue as a preliminary issue and proceeded with the proceedings and decided it in the final award. Since there was an expressed term and the contract was a fixed rate contract, the Arbitrator was debarred from interpreting or giving its own meaning to Clause 21 of the SCC.

36. Moreover there is a duplication in the award so far as claim 1(b) and 2 are concerned as these claims pertain to escalation; first for prolonged period and other for increase in the cost of the labour and material during the prolonged period.

37. In nut shell the agreement between the parties was as per Clause 27 of the GCC that the petitioner was entitled to claim compensation for delay whereas the respondent was not entitled as per Clause 87 of the GCC to make any claim or compensation for the extended period or on account of escalation. Clause 87 of the GCC read with Clause 21 of the SCC is the culminating clause as it specifically provides that in the absence of an agreement to pay in terms of Clause 21 there is no payment for extended stay or for escalation.

38. It is apparent from the letter of award dated 27.1.97 that Clause 87 of the GCC and Clause 21 of the SCC were not modified between the parties and remained unaltered. Clauses which were modified and altered are stipulated in column 3 of the statement of agreed variations which are Clauses 19 of SCC, Clause 42 of SCC, Clause 46.9(5) of SCC.

39. Clause 21 of the SCC permitted the payment of compensation for the extended period of contract but subject to two conditions: (1) that the delay was solely attributable to the petitioner and (2) that if the bidder mentions the rate for such extended stay compensation in the unpriced part which will be considered for valuation for 1/5th of the time schedule or three months whichever is less. In case the bidder does not indicate the rate for extended stay compensation in unpriced part it would be presumed that no extended stay compensation is required to be paid to the contractor.

40. Admittedly in bid, the rates for compensation of the limited period were stipulated but subsequently withdrawn on 28.9.96 i.e. prior to the award; seeking to amend the bid. However in final negotiations leading to the letter of award the letter dated 28.9.96 was ignored and the contract was finalised on the basis of the tender documents as submitted by the respondent and it was expressly declared that the correspondence prior to 20.12.96 which included the letter of 28.9.96 shall be null and void.

41. However at the same time the respondent's letter dated 28.9.96 withdrawing their quotation for escalation meant that at this stage there was no bid for escalation therefore the bidder did not indicate the bid for extended stay compensation.

42. The effect of the stipulation in the agreed variation that all the other documents and correspondence existing prior to 20.12.96 shall be null and void and shall be deemed to have been unconditionally withdrawn by the contractor is that all pre negotiations are over and the parties are bound by the contract documents including the statement of agreed variation. There is no agreement for payment of extended stay compensation for labour escalation. Therefore the letter of 28.9.96 is binding upon the respondent. Had there been an escalation permissible, Clause 21 of the SCC would have been amended in the agreed statement of variations to show that they would be paid compensation at this rate fro this time.

43. If the argument that the agreed statement of variation sis not a final agreement is accepted then correspondence between the parties at the negotiations stage shall also be relevant even if the concluded agreement is executed and this would lead to absurdity.

44. In terms of Sub-section (3) of Section 28 of the Arbitration Act, the arbitral tribunal was bound by the terms of the agreement. It could not have gone contrary to the agreement. The instant award in so far it ignores the contractual stipulation is contrary to Section 28(3). In other words, it is beyond the terms of the agreement. The award is not only beyond the terms of the agreement but also beyond the scope of the terms so far claims 1(b) and 2 are concerned.

45. The following observations and findings of the Arbitrator demonstrate that he has awarded claims 1(b) and 2 on the basis of formula not agreed between the parties. These are:-

"17. As far as Extended Stay Compensation under Clause 21 of SCC is concerned, the claimant clearly complies with the precondition regarding quotation for rate of such compensation. The position is not so clear regarding the other precondition that the delay should have been due to reasons 'solely' attributable to the owner. 'Solely' is a strong word, it means that the other party did not contribute at all to the delay. Considering the evidence before us it does not seem possible to state categorically that BEL did not slip up at all at any stage and the respondent was 'solely' responsible for the delay. But the fact that on the scheduled date of completion, the contractor was just 8% behind the release of work fronts shows that in spite of all the voluminous correspondence on the faults and failures of each side, the contractors work was keeping pace with the availability of work fronts. The contractor would be quite justified in claiming that if he had got the work fronts in time, he could have completed the work in time or within the grace period at the most. Thus the reason for delay may not, strictly speaking, be 'solely' attributable to the owner but they are definitely substantially attributable to him. In view of this, while the claimant's right to compensation for their losses and damages accrues under Sections 55 & 73 of the Indian Contract Act, the provisions of Clause 21 of the SCC can be used as guide lines while computing such compensation."

46. I have gone through the reasons given by the Arbitrator with regard to Claim No. 3 and the counter claim and do not find any infirmity as these are findings of facts. As a consequence, the award in respect of claims 1(b) and 2 is set aside whereas the award with regard to the remaining claims is maintained.

47. The petition is disposed off accordingly.