JUDGMENT Prakash Krishna, J.
1. On the joint request of learned counsel for the parties-this appeal itself was heard finally at the admission stage. Counsel for the parties have filed copies of the documents along with affidavits, which have been taken on record.
2. The respondent No. 1 was appointed as Librarian on 18.07.1994 by the Committee of Management of Saraswati Vidhya Mandir. In the contract of service there is an Arbitration clause. Clause 19 of the contract of the service, which contains Arbitration clause, is quoted below :
"(19) The Committee of the party No. 1 will agree that any dispute arising out of or relating to this contract including any disciplinary action leading to the dismissal or removal from service or reduction in rank etc. shall be referred for Arbitration of any person to be nominated by the Chairman of society running the school and if the Arbitrator fails or neglects to act or becomes incapacitated the Chairman of the society shall nominate any other person to fill the vacancy of Arbitrator."
3. It appears subsequently that a dispute had arisen in between the respondent No. 1 and the Committee of Management. The Committee of Management appointed an Inquiry Officer to investigate and record its finding on the alleged misconduct of the respondent No. 1. The Inquiry Officer submitted a report and it was found by him that the respondent No. 1 is guilty of misconduct and recommended termination of his services. The said termination order is dated 2nd November, 1998. Thereafter by letter dated 07.11.1998 the respondent No. 1 invoked aforesaid Arbitration clause and requested the Chairman of Saraswati Shishu Mandir, Shiksha Samiti, to refer all disputes between the parties, as per Arbitration clause for Arbitration. It appears that in pursuance of the aforesaid request the Chairman by letter dated 03.12.1998 appointed one Sri Ram Babu Pathak, Principal, Gandhi Intermediate College, Chhata, District Mathura. By that letter the Chairman referred dispute between the parties for Arbitration. A copy of the said letter has been filed as Annexure SCA-3 to the affidavit. It appears that thereafter the parties filed their pleadings before the Arbitral Tribunal. The Arbitral Tribunal proceeded in the matter and decided the dispute. He framed two questions for decision. The question No. 1 was regarding validity of appointment of the Inquiry Officer. The second question was regarding the alleged misconduct and charges levelled against the respondent No. 1 by the College. The Arbitral Tribunal by Award dated, 25.08.1999 decided both the issues against the respondent No. 1. He found that the appointment of the Inquiry Officer was valid. It also recorded a finding that the charges levelled against respondent No. 1 are proved. Consequently he Awarded termination of respondent's services. The said order was challenged by the respondent No. 1 by invoking Section 34 of the Arbitration and Conciliation Act, 1996 before the Court below. The Court below by order under appeal, has set aside the Award and remanded the matter for fresh consideration by the Arbitral Tribunal with a further direction that departmental appeal filed by the respondent No. 1 be disposed of by the Committee of Management first and thereafter the Arbitral Tribunal shall decide the dispute. Aggrieved against the aforesaid order present appeal from the order under Section 37 of the aforesaid Act has been filed.
4. Heard learned counsel for the parties and perused the record.
5. The Court below was of the view that the reference was confined to the question of legality of appointment of the Inquiry Officer. Therefore, it concluded that Arbitral Tribunal exceeded in its jurisdiction and went beyond the scope of reference in recording findings on question of misconduct against respondent No. 1. The Court below also held that since both the above issues are inseparable, therefore, it set aside the entire Award.
6. Challenging the aforesaid finding recorded by the Court below Sri Manish Goel, learned counsel for the appellant submitted that the Court below has committed an illegality in holding that the reference was confined only with regard to the question of validity of appointment of the Inquiry Officer. He submitted that looking to the entire facts and circumstances of the case entire dispute between the parties was the subject matter before the Arbitral Tribunal. He also submitted that the findings on the second issue that second part of the Award was not inseparable is incorrect. On the other hand Sri P.K. Mishra, learned counsel for the respondent No. 1 supported the order of the Court below and invited my attention to the letter dated 07.11.1998 and submitted that the Arbitrator has exceeded to the reference made to him as sole question regarding the validity of appointment of the Inquiry Officer was referred for Arbitration.
7. Now the first question, which arises for the determination, is about the scope and width of the reference of dispute referred to Arbitral Tribunal. To put it differently whether the sole question of validity of the appointment of Inquiry Officer was referred. Indisputably by order dated 02.11.1998 the services of respondent No. 1 were terminated in view of the findings recorded by the Inquiry Officer. The respondent No. 1 by letter dated 07.11.1998 addressed to the Chairman invoked the Arbitration Clause 19 and submitted that as per the service contract there is no provision of determination of his service through the medium of an Inquiry Officer. He further stated in the said letter that the dispute between the parties can be set at rest through Arbitration Award and the Committee of Management wants to terminate his services with the intervention of Inquiry Officer, therefore, the findings of the Inquiry Officer are void and illegal and dispute between the parties should be referred to the Arbitrator to be appointed by the Chairman. In this background it is clear that on the date of letter the services of respondent No. 1 were stood terminated. A serious dispute had arisen between the parties. Consequently the Chairman by the letter dated 03.12.1998 a copy of which has been filed as Annexure-SCA3 to the affidavit, appointed Sri Ram Babu Pathak, as Arbitral Tribunal. In this letter the Chairman has given brief facts regarding the dispute between the parties. It is also mentioned that one Sri Surendra Kumar Verma was appointed as Inquiry Officer, who found that out of seven charges six charges, were proved. It is also mentioned therein that respondent No. 1 has failed to submit reply to the charges levelled against him, and has also refused to receive letter sent under registered cover. It is also mentioned therein that the respondent No. 1 has failed to give any reply to the inquiry report and to the proposed punishment of termination of services. Looking to the background of the facts of the case it cannot be disputed that respondent No. 1 was charge-sheeted for seven charges, out of which six charges were proved. The dispute regarding prove or disapprove of the charge between the parties was there.
8. A close reading of the letter dated 07.111998 of the respondent No. 1 and letter dated 03.12.1998 it is clear that the entire existing dispute between the parties was referred to the Arbitral Tribunal. Clause 19, the Arbitration clause, also provides that any dispute arising out of or relating to the service contract including any disciplinary action leading to the dismissal or removal from service shall be referred for Arbitration.
9. Secondly in this connection it is relevant to refer to Section 16 of the aforesaid Act. It reads as follows :
"(16) Competence of Arbitral Tribunal to rule on its jurisdiction :
(1) The Arbitral Tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the Arbitration agreement and for that purpose :
(a) an Arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and
(b) a decision by the Arbitral Tribunal that the contract is null and void shall not entail ipso jure the invalidity of the Arbitration clause.
(2) A plea that the Arbitral Tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence ; however, a party shall not be precluded from raising such a plea merely because that he has appointed, or participated in the appointment of, an Arbitrator.
(3) A plea that the Arbitral Tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.
(4) The Arbitral Tribunal may, in either of the cases referred to in Sub-section (2), or Sub-section (3), admit a later plea if it considers the delay justified.
(5) The Arbitral Tribunal shall decide on a plea referred to in Sub-section (2) of Sub-section (3) and, where the Arbitral Tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make an arbitral Award.
(6) A party aggrieved by such an arbitral Award may make an application for setting aside such an arbitral Award in accordance with Section 34."
The said section provides that plea regarding jurisdiction of Arbitral Tribunal shall be raised not later than submission of statement of defence. It also provides the plea that the Arbitral Tribunal is exceeding the scope of authority, shall be raised as soon as the matter is alleged to be beyond its authority, during the Arbitration proceeding. Section 16(5) is very important. It casts an obligation on the Arbitral Tribunal to decide the question of jurisdiction. A reading of the Award does not show that any such plea was raised by the respondent No. 1 before the Arbitral Tribunal. On the other hand there are observations to the effect that the respondent No. 1 has filed reply to all the allegations raised by the Committee of Management before him. In my view the question of jurisdiction which ought to have been raised at the earliest opportunity having not been raised before the Arbitral Tribunal shall be deemed to have been waived by the party concerned. At the subsequent stage when the Award is against him the party cannot be permitted to agitate the question of jurisdiction. Therefore, the Court below was not right in setting aside the Award on this question that only the question of validity of appointment of the Inquiry Officer was referred to Arbitration.
10. Now I take the second point as to whether the Court below was justified to set aside the entire Award.
11. The Arbitrator Award may be set aside by the Court on the ground mentioned in Sub-section (2) of Section 34. One of the ground as contemplated under Clause (iv) of Sub-section (2) of Section 34 is when the arbitral Award deals with the dispute not. contemplated by or not falling within the term of submission to Arbitration, or it contains decision on the matter beyond the scope of submission to the Arbitration. Invoking this power the Court below has set aside the entire Award in question. To took a view that the second question decided by the Arbitral Tribunal was not within purview of the reference made to Arbitration. There is a proviso to the aforesaid Clause (iv), which reads as under :
"Provided that if decision on matters submitted to Arbitration can be separated from those not so submitted, only that part of the arbitral Award which contains decision on matters not submitted to Arbitration, may be set aside."
Elaborating his argument-learned counsel for the appellant submitted that the findings of the Court below that both questions of the Award were inseparable is incorrect. I have gone through the order passed by the Court below. The Court below has not given any reason in support of the finding that both part of the Award are not inseparable. In my view the question of validity of appointment of the Inquiry Officer is quite independent so far as it relates to the disciplinary action leading to dismissal. At the most the Court below could have set aside the second part of the Award. As regards, first part of the Award holding that appointment of the Inquiry Officer was valid ; the Court below has not recorded any finding as to how the Award is bad on this issue.
12. There is another aspect of the matter. The respondent No. 1 on the one hand pleads that the question of validity of the appointment of the Inquiry Officer is inseparable with the question of dismissal of service on proved misconduct and on the other hand he pleads that only the question of validity of the appointment of the Inquiry Officer was subject matter of Arbitration. Thus, he is taking contradictory stand.
13. Learned counsel for the respondent also could not point out any illegality with regard to first part of the Award. The Court below has set aside the entire Award as it was of the view that both parts of the Award are inseparable.
14. In my view on both points the order of the Court below cannot be sustained. The order of the Court below is set aside and the appeal is allowed. No order as to costs.