Delhi District Court
Indraprastha College Women vs Ms Himani Malhotra Former Assistant … on 25 February, 2026
IN THE COURT OF SH. SACHIN SOOD : DISTRICT JUDGE-01
(CENTRAL), TIS HAZARI COURTS, DELHI.
ARB No. 97/2025
CNR No: DLCT01-004699 2025
In the matter of :
Indraprastha College for Women
31, Sham Nath Marg,
Delhi - 110054.
Email: [email protected] ...... Petitioner
Versus
1. Ms. Himani Malhotra (Former Assistant Professor)
Department of Physical Education,
Indraprastha College for Women
D/o Sh. Ramesh Malhotra
R/o B- 143, Subhadra Colony
Near Shastri Nagar Metro Station
Delhi.
Email: [email protected]
2. University of Delhi
Through its Vice Chancellor
Vishwa Vidyalaya Marg,
Delhi - 110007.
Email: [email protected] ...... Respondents
Date of institution : 01.04.2025.
Date of reserving the Judgment : 25.02.2026.
Date of decision : 25.02.2026.
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JUDGMENT
BRIEF BACKGROUND OF THE CASE :
1. The petitioner is an affiliated college under respondent No.2 and thus
governed by University of Delhi Act including the Ordinances
promulgated under the said University of Delhi Act, 1922. Respondent
No.2 is the University of Delhi and is a statutory body as per the mandate
of University of Delhi Act. The University of Delhi is a State within the
meaning of Article 12 of the Constitution of India.
2. Respondent No.1 was appointed as Assistant Professor in the Department
of Physical Education in July, 2009 at Indraprastha College for Women on
ad hoc basis. The services of the respondent No.1 were regularized on
29.09.2011 and she was confirmed to the post of Assistant Professor. In
the year 2012, the Principal of the petitioner college tabled a note before
the Governing Body scheduled for 23.03.2012, reporting that respondent
No.1 has routinely and habitually flouted institutional procedures and
processes and has levelled baseless allegations against the Principal
thereby creating a hostility in the administration of the college.
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3. The Governing Body vide its meeting held on 23.07.2012, deemed it
appropriate to obtain legal advice so as to issue a Show Cause Notice to
respondent No.1.
4. The Governing body vide its Minutes of Meeting dated 27.07.2012,
deemed it appropriate to issue a Show Cause Notice to respondent No.1,
to which a reply dated 06.08.2012 was preferred by respondent No.1
challenging the validity and legality of the allegations leveled against her.
5. The Governing Body in its meeting held on 07.08.2012, resolved to
recommend suspension of respondent No.1 after taking approval of the
Vice Chancellor of the University. It is worth mentioning that the
principal of the college was a part of the meeting which was held on
07.08.2012, besides one Sh. Dinesh Sundriyal, who was a special invitee
to the said meeting. It was also resolved to constitute single member
inquiry committee to hold an inquiry into all aspect of charges as levelled
against respondent No.1 vide Show Cause Notice dated 28.07.2012.
6. On 21.08.2012, the petitioner, pursuant to the approval having been
granted by respondent No.2, vide its letter dated 13.08.2012, placed
respondent No.1 under suspension vide its letter dated 21.08.2012.
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7. Vide charge-sheet dated 13.09.2012, respondent No.1 was served with the
charge-sheet containing four Articles of charges and List of documents
and witnesses.
8. The respondent No.1 filed writ petition being W.P (C) 5758/2012
challenging the issuance of the charge-sheet which was disposed of vide
order dated 05.07.2013, by the Hon’ble High Court of Delhi, with
directions to complete the inquiry proceedings within four months from
the said date and a former Judge of the Hon’ble High Court of Delhi was
appointed as an Inquiry Officer in W.P (C) 5758/2012 and specific liberty
was granted to the parties to urge all the contentions in the said inquiry
proceedings.
9. During the course of inquiry, the Inquiry Officer rescued himself from the
proceedings and vide order dated 20.10.2015, passed in W.P. (C)
5758/2012, the Hon’ble High Court of Delhi appointed another former
Judge as Inquiry Officer and requested to complete the proceedings as
expeditiously as possible. Respondent No.1 thereafter filed W.P. (C)
4679/2016 seeking a direction to Inquiry Officer to decide the pending
applications, which was disposed of on 24.05.2016, directing respondent
No.1 to approach the Inquiry Officer and make a request for disposal of
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the applications. Numerous writ petitions were filed subsequently againstvarious orders of the Inquiry Officer from time to time, which were
disposed of.
10. Respondent No.1 also filed W.P. (C) 11251/2017, challenging show cause
notice dated 27.07.2012, suspension order dated 21.08.2012, approval of
suspension vide order dated 13.08.2012 as well as Minutes of Meeting
dated 27.07.2012. This writ petition was disposed of vide order dated
02.01.2018, declining to interfere and holding that the challenge was not
maintainable as respondent No.1 had attempted to raise the same issues
earlier in W.P (C) 5758/2012 but had failed and had, in fact, agreed for
disposal of writ with direction to conclude the inquiry proceedings in a
time bound frame. Further, respondent No.1 challenged the judgment
dated 02.01.2018 in LPA No. 13/2018, which was dismissed on
08.05.2018 and Division Bench concurred with the findings of the Ld.
Single Judge. Inquiry Officer submitted the inquiry report on 08.05.2019
holding some charges as ‘not proved’ and some as ‘proved’. The Inquiry
report was placed before the Governing body of the College on
21.05.2019 to examine the report and give its recommendations. A Sub-
Committee of five members was also constituted to examine the case and
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the report was placed before Governing Body on 22.01.2020. In the
meantime, in the meeting of the Governing Body held on 17.01.2020,
respondent No.1 was called upon for tendering unconditional apology to
the satisfaction of the College and also to furnish an undertaking of good
conduct in future and abide by the Code of Professional Conduct, which
forms part of Service Agreement of every College appointed Teacher, as
per direction of the University and ordinance XII.
11. Further, the decision of Governing Body was conveyed to respondent
No.1 on 02.03.2020 for asking her to do the needful but regrettably she
did not. On 08.08.2020, after taking cognizance of non-compliance of the
direction of Governing Body, another opportunity was given to
respondent No.1 to furnish an apology and undertaking. Accordingly, vide
letter dated 17.09.2020, College sought approval of the University to
terminate the services of respondent No.1. However, respondent No.1 did
not comply and instead submitted a representation dated 17.11.2021,
seeking revocation of the suspension order dated 21.08.2012, and
subsequent inquiry proceedings and reinstatement with full emoluments.
University called upon the College vide letter dated 14.07.2021, to place
the entire case of the College with Statement of Defence and report of
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Inquiry Officer for consideration by the University, which documents
were provided. By resolution dated 07.08.2021, Governing Body of the
college decided to again seek approval of the University to terminate
respondent No.1. On receipt of the resolution, University constituted a
Committee comprising of Pro-Vice Chancellor, Dean of Colleges and
Registrar of the University, amongst others and the Committee examined
the documents in three sitting and once again asked respondent No.1 to
tender apology, however, she declined. Committee came to a conclusion
that punishment of removal of respondent no.1 was justified and vide
letter dated 15.06.2022, University conveyed the approval of the Vice
Chancellor to impose the punishment of removal from service.
12. The Respondent No 1 challenged the termination order, by filing an
appeal before the Appeal Committee in accordance with Clause 9 (1) of
Ordinance XII-A on 29.07.2022. Respondent No.1 also filed W.P.(C)
16400/2022 seeking a direction to the respondents to decide the appeal
within 03 months as also to pay subsistence allowance @ 75 % during the
pendency of appeal. This writ petition was disposed of on 22.12.2022 by
the Hon’ble High Court of Delhi, requesting the Chancellor of the
University to constitute the Appeal Committee as expeditiously as
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possible so that the appeal could be placed before the Committee.
Direction was also issued to take requisite steps for processing the case of
respondent No.1 for subsistence allowance simultaneously. In compliance
of the Court order, Appeal Committee was constituted and proceedings
were conducted between 17.04.2023 to 23.05.2023. Both parties filed
their pleadings and written submissions, which were considered and the
Appeal Committee rendered its report on 22.06.2023.
13. The Appeal Committee vide its report dated 22.06.2023, comprehensively
examined the present matter including the findings returned by the Inquiry
Committee (Hon’ble Justice Kailash Gambhir (Retd.) ) dated 08.05.2019,
totality of the facts and circumstances, submissions made by the parties
and based upon the analysis of the evidences and the arguments as
advanced before it after perusal of the relevant ordinances at length
discussed/considered the material on record vide para 16.1 to 16.23 in the
said report of the Appeal Committee/Arbitral Award. Based upon the
aforesaid, a decision has been returned by the Appeal Committee holding
as under :
” 17.2 Having carefully considered the entire record of the case and
having regards to the facts and circumstances and decisions of the
Governing Body which were approved by the Ld. Vice-Chancellor, in
sum, we are of the considered view that punishment awarded to Ms.Arb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 8/ 56
Himani Malhotra is disproportionate to the charges proved and the
Governing Body of the college merely on the paltry portion of proved
charges has taken such a harsh action for removal of the services of
Ms. Himanhi Malhotra which is not justifiable.”
17.3Based on the case analysis, it is clear that there is not enough
material on record/statements which enforce the disciplinary
authority of the college to take such a harsh action for removal of the
services of Ms. Himani Malhotra. Also, the Committee is of the view
that the Governing Body of the College was not fully representative,
and it consisted of only five permanent members whereas its full
strength is of 15 members. The sixth member was invited by the
Principal to be member on the Committee who was Sh. Dinesh
Sundriyal. Administrative Officer of the College. The Administrative
Officer was himself involved in this matter and cannot be said to be
impartial. Therefore, then Governing Body was truncated and it was
not morally and ethically correct for the Governing Body to take such
a critical decision as a termination of a faculty member. There is also
a provision that the Principal may recuse herself and the Vice-
Principal of the College could have officiated as a Member Secretary
of the Governing Body since the Principal was herself a party to this
case. However, she chose not to recuse herself from meeting of the
Governing Body when this matter came up. As such, the Committee is
of the considered view to set aside the order dated 08.08.2020 and
07.08.2021 passed by the Governing Body in terminating the services
of Ms. Himani Malhotra from the service of the College and reinstate
her in the service of the College with immediate effect in the grade
pay/level as she was drawing at the time of her termination of
services.
17.4 The Committee admits the arguments of the Learned Counsel
Sh. Rajesh Gogna of the College that the contents of letters and
replies of Ms. Himani Malhotra to the institutional authorities are
per-se defamatory which have disturbed the peace and academic
environment of a premier educational institution and lowered
institutional dignity, prestige and reputation with a relentless attack
on administrative processes and the institutional authorities. The
material on record of the Committee reflects that the profanity used
by Ms. Himani Malhotra in her replies to the College Administration
is apparently unwarranted and is against the Code of Professional
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Ethics envisaged under Appendix I of Ordinance XII of the
University.
17.5 The Committee feels that every organization is governed by
certain rules and regulations and every employee of the organization
is bound to follow the rules and regulations so laid down by it but the
Committee has realized that Ms. Himani Malhotra, at any stage was
not at all ready to tender an apology or to submit signed copy of
Code of Professional Ethics envisaged under Annexure to Ordinance
XII of the University, which apparently led to removal her services
from the College since 21.08.2012, the Committee is of the view that
the entire period of suspension by Ms. Himani Malhotra may be
treated as dies-nun and accordingly shall not be counted for
qualifying services and no notional increment whatsoever for the
period of suspension may be granted to her on this count.
17.6 Albeit, the Committee reiterates its decision passed on to the
management of the College on 04.05.2023 to restore subsistence
allowance @ 75% w.e.f the date it was reduced till Ms. Himani
Malhotra, Ex-Assistant Professor, Indraprastha College for Women
in reinstated.”
14. The present petition has been filed by the petitioner under the provisions
of Section 34 of the Arbitration and Conciliation Act, 1996 challenging
the arbitral award/Report of Appeal Committee dated 22.06.2023 inter
alia taking the following grounds :
a) That the Award is in conflict with the public policy of India since it
directs enforcement of a contract of personal service and the same is
accordingly is prohibited under Section 14(c) of the Specific Relief Act.
That the impugned Award is accordingly against the fundamental policy
of Indian Law and is liable to be set aside.
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b) That the Award suffers from patent illegality appearing on the face of
the Award since it disregards the binding precedent laid down in ‘Dr. S.
Dutt v. University of Delhi‘ since the direction re-instating the respondent
No.1 is contrary to Section 14 (c) of the Specific Relief Act.
c) That the Award has been passed in excess of the jurisdiction vested
with the Arbitrator, who could not have directed the reinstatement of the
respondent No 1 dehors the biding precedent laid down in ‘Dr. S. Dutt v.
University of Delhi‘.
d) That the Appeal Committee has wrongly reached a decision that order
of suspension and later on the order of removal has been passed by a
truncated Governing Body and accordingly the Award is arbitrary,
capricious and whimsical.
e) That the Appeal Committee ignored the serious nature of misconduct
proved against the respondent because the Appeal Committee acted
contrary to the fundamental policy of Indian Law and accordingly the
Award is liable to be set-aside.
f) That Appeal Committee has reached the wrong conclusion without
adequate reasoning that the penalty of termination was dis-proportionate
despite detailed findings having been returned by the Inquiry Officer
against the respondent No 1.
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15. SUBMISSIONS OF THE LD. COUNSEL FOR THE PETITIONER
UPON THE MERITS OF THE PRESENT CASE:
(I) That the Appeal Committee has wrongly passed the order dated
22.06.2023 inter alia wrongfully returned the finding that the action of the
removal of services of the respondent has been ballooned out of
proportion and the management could have amicably resolved the entire
matter by issuing advisories to the respondent herein. That the Appeal
Committee has wrongly observed that the penalty of removal of services
of the respondent by the petitioner college is too harsh and dis-
proportionate.
(II) It has further been contended vide para No. 16.13 of the report, the
Ld. Appeal Committee has wrongly observed that the body of the
Governing Body was truncated which had taken the decision of
suspension and later on removal of services of the respondent. It has been
contended that the Appeal Committee wrongly returned the finding that
the quorum mandated as per EC Resolution dated 10.04.1983 was
incomplete. It has been submitted that the Governing Body meetings held
on 25.07.2012, 27.07.2012 and 07.08.2012 were the duly convened
meetings having the requisite quorum being in conformity with the
requirement of their being 1/3rd of the members of the Governing Body.
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It is further submitted that in case of colleges where the Governing Body
consists of 15 members, 05 members will form the quorum. It is further
submitted that vide EC Resolution dated 21.03.2012, Principal had been
empowered to nominate the member of the staff (other than a teacher) to
attend the meeting of Governing Body as ‘special invitee’.
(III) It is thus submitted that the decision to issue show cause notice,
placing the respondent under suspension and thereafter removal her from
services was taken by a duly constituted Governing Body having requisite
quorum and thus cannot be said to have been taken by a truncated body. It
is thus submitted that the Ld. Inquiry Officer after taking into account all
the facts and circumstances, have rejected the contentions of the
respondent herein that the decisions taken in the various meetings of the
Governing Body were taken by a truncated body and not by a regularly
constituted Governing Body.
(IV) It is next contended by Ld. Counsel appearing on behalf of the
petitioner that the Ld. Inquiry Officer has dealt with the aspect of the
breach of the principles of natural justice and it has been held by the Ld
Inquiry Officer that there has not been a violation of the principles of
natural justice merely due to the participation of the Principal of the
college in the Governing Body Meetings which issued show cause notice,
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suspended or chage-sheeted Respondent No 1. It has further been
contended that by the Ld. Counsel for the petitioner that the Ld. Inquiry
Officer has duly noted the fact and has rejected the argument of violation
of the principles of natural justice since it has been observed by the Ld.
Inquiry Officer that the principal had not herself taken any decision for
the issuance of show cause notice, passing of order of suspension or
issuing any charge-sheet and the said decisions have been taken by the
Governing Body of the college where the Principal was present in the
capacity as a Member Secretary and, hence, there was no question of
Principal becoming a judge in her own cause.
(V) It has next been contended that the Inquiry Officer also did not find
any merit in the contention that since Sh. Dinesh Sundriyal had
participated as member of the Governing Body and was the sole witness
examined by the management, hence, there had been any violation of the
principles of natural justice. It has been pointed out that the Ld. Inquiry
officer had categorically returned the finding that since the decision
against the respondent No. 1 in the present matter were taken through the
collectively wisdom of the members of the Governing Body and also that
it was not the case of the respondent herein that Sh. Dinesh Sudriyal was
in such a commanding position to influence the other members of the
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Governing Body to take the said decisions with respect to issuance of
show cause of notice, suspension and disciplinary inquiry against the DE.
Accordingly, it has been argued by the counsel for the petitioner that the
Ld. Inquiry officer did not find any merit in the legal objections as raised
by the respondent herein to the effect that there has been violation of the
principles of natural justice due to the presence of Sh. Dinesh Sudriyal as
Special Invitee to the meetings of the Governing Body or on account of
his deposing before the Ld. Inquiry officer as the sole witness on behalf of
the management.
16. LEGAL SUBMISSIONS OF THE Ld COUNSEL FOR THE
APPELLANT:
(I) Ld. Counsel for the petitioner has relied upon the judgment passed in
the matter of Dr. S. Dutt v. University of Delhi 1958 SCC online SC 66,
and it has been contended that the Arbitration Act would not apply to the
proceedings before the Arbitration Committee.
(II) Placing reliance upon the judgment passed in the matter of Executive
Committee of Vaish Degree College (1976) 2 SCC 58, it has been next
contended by Ld. Counsel for the petitioner that the said judgment is an
authority upon the principles governing the enforcement of the contract of
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personal service. It has been contended that in the said judgment theprinciple has been laid down to the effect that a contract of personal
service cannot ordinarily be specifically enforced and a Court could not
give a declaration that the contract subsists and the employee, even after
having been removed from service can be deemed to be in service against
the will and consent of the employers. It has been contended that the
aforesaid preposition has three exceptions i.e. (i) where the public servant
is sought to be removed from service in contravention of the provisions of
Article 311 of the Constitution of India (ii) Where a worker is sought to
be reinstated on being dismissed under the Industrial Law and (iii) Where
a Statutory Body acts in breach or violation of the mandatory provisions
of the statute. It is thus contended on the strength of the principles of the
said judgment that since the college itself is not established by any statute,
but is merely governed by the statutory provisions applicable for the
administration of the institution. It is thus contended that since the IP
College is not a statutory body, hence, it is only governed by the Society
Registration Act, since, IP College is Society registered under the said Act
though affiliated with Delhi university. It is thus contended that IP College
is not a statutory body, thus, the present case is not even covered by the
third exception to the well laid principle to the effect that contract of
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personal service cannot ordinarily be specifically enforced. Ld. Counselfor the petitioner has laid great stress upon the tests laid down in the
judgment rendered in the matter of Executive Committee of Vaish
Degree College and has submitted that the present dispute between the
parties is non-arbitrable and the arbitral award is liable to be set aside.
17. SUBMISSIONS OF LD. COUNSEL FOR RESPONDENT NO. 1
Ld. Counsel for the respondents has taken the Court through Ordinance XII
of University of Delhi Act which came into existence in the year 1922 and
was revised on October 2004 and it has been submitted that the said
Ordinance has pervasive existence and the affiliated constituent colleges are
required to adhere to such Ordinance which controls the appointment of
college appointed teacher. It has been submitted that Ordinance XII (2) of
University of Delhi lays down that no whole time teacher can be appointed
by any college unless agreement of service is signed by such teacher before
he entered upon his duty. It has been submitted that in accordance with
Ordinance XII (2) of University of Delhi, an agreement dated 15.05.2012
stands executed between the governing body and vide Clause 7 thereof, the
question of termination of the services of the respondent/teacher or the
suspension shall not be decided by the college without the approval of the
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Vice Chancellor. It has been submitted that vide Clause 9 of the agreement
dated 15.05.2012, any dispute arising in connection with the termination of
the services of the teacher by the Governing Body shall be referred to
arbitration of an Appeal Committee of three independent persons appointed
by the Chancellor, who shall have the power to inquire into all the facts of
the case and to interpret the terms of the agreement and their decision shall
be final and binding upon both the parties. It is thus submitted that since the
agreement dated 15.05.2012, has been executed between the parties have
reference to the Ordinance as promulgated by the University of Delhi, the
said employment is not simpilicitor a contractual employment but is a
statutory appointment. It has further been submitted that the statutory nature
of the employment has been recognized by the Hon’ble High Court which
has been passed between the same parties in WPC No. 11093/23 titled
Indraprastha College for Women Vs Himani Malhotra vide para 30 thereof.
18. Ld. Counsel for the respondent while arguing has drawn the attention of the
Court to Ordinance XII of University of Delhi Act and the agreement
having been entered into between the parties dated 15.05.2012 as referred in
para No. 33 of the judgment rendered in WPC No. 11093/23, to contend
that it has been held by the Hon’ble High Court that Ordinance XII of
University of Delhi Act has expressesly included Clause 9 (1) which
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envisage dispute resolution mechanism with respect to the dispute
pertaining to teachers except a teacher on probation through the
mechanism of arbitration by referring it to Appeal Committee comprising
of three independent persons as arbitrators and also that in the light of
observation made by Hon’ble Apex Courts in the matter of Vidya Darolia.
It is thus submitted that the question of arbitrability of the dispute as
contended by Ld. Counsel for the petitioner merits outrightly dismissal. It
has further been contended that even in the reply as filed by the petitioner
herein before the Appeal Committee, wherein, all throughout clear reference
to Ordinance XII-A of University of Delhi, Rule 9 (1) of University of
Delhi Act with reference to proceedings being covered by Arbitration Act
have been urged by the petitioner and it is thus contended that once the
petitioner has taken part in the arbitral proceedings itself knowing the nature
and character of the said proceedings as arbitral proceedings which have
been initiated pursuant to Ordinance XII-A of University of Delhi, Rule 9
(1) of University of Delhi Act, the issue of non-arbitrability of present
matter does not arise. It has further been contended that the proceedings
with respect to the termination of the respondent / teacher being governed
by the Arbitration and Conciliation Act 1996, have been taken note by the
Appeal Committee vide para No. 16.7 thereof, wherein clear mention to the
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applicability of the Arbitration and Conciliation Act, 1996 read with
Ordinance XII of the University of Delhi Act has been made and it is thus
submitted that the contention of the Ld. Counsel for the petitioner that the
present dispute is not arbitrable and is not governed by the provision of
Indian Arbitration Act is thus misconceived.
19. On the aspect of the argument as advanced by Ld. Counsel for the petitioner
having been made to the effect that Contract of Personal Service under the
Specific Relief Act is not enforceable, Ld. Counsel for the petitioner besides
drawing support from the judgment passed in the matter of Dr. S. Dutt v.
University of Delhi wherein an arbitration was found to be permissible in
disputes claiming reinstatement by virtue of the Delhi University Act, has
further contended that a constitutional bench in the matter of Sirsi
Municipality v. Cecella Kom Francis Tellis (1973) 3 SCR has
distinguished between the three kind of relationships between the master
and servant. It has been contended that the present matter the relationship of
master and servant is covered by the third category of cases as mentioned in
the said judgment. It is thus contended that in the present case since the
employment of the respondent no 1 was governed by a statute and arises
under a statue i.e. Delhi University Act, the contention of the Ld. Counsel
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for the petitioner to the fact that Specific Relief Act prohibits the
enforcement of the contract of personal service is misplaced.
20. Ld counsel for the respondent has further placed reliance upon the judgment
in the matter of SBI & Ors Vs S N Goel 2008 (8) SCC 92 to contend that
the Hon’ble Apex Court has clearly relied upon the distinction between the
public employment governed by the statutory rules and also the
employment governed purely by a contract to lay down the distinction as to
cases in which the contract of service cannot to enforced to cases in which
the same can be enforced by placing reliance on the exceptions made to the
general rule.
21. It is thus contended that in line with S B Dutt Vs University of Delhi,
Sirci municipality (Supra), the employment of the respondent being
govern by statute i.e. university of Delhi Act, the contention of the Ld
counsel for the petitioner to the fact that contract of personal service
cannot be enforced is misplaced.
22. It is next contended by Ld counsel for the respondent that even the
judgment cited by Ld counsel for the petitioner ie.. Vaish Degree College
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Vs Laxmi Narayan is also distinguishable on facts as well as on law. It
has been submitted that in the said judgment, the affiliated college was
not bound by the Agra University Statue 14(A) and the managing
committee did not loose itself of the independent status which continued
to remain non statutory and autonomous body.
23. In the said judgment it has been held that mere fact that statute of the
university were adopted by the managing committee and it was the matter
of convention bound to follow the statutory provisions of the Act would
not clothe the managing committee with statutory status or character
which was adopted for better governance, administration, extension of
educational activities of the institution. In the considered opinion of the
Court, the said judgment is thus distinguishable on facts as well as on law
and thus is not applicable between the parties, which participated before
the proceedings of the Appeal Committee clearly being conscious of the
fact that the nature of the said proceedings were governed by the
Arbitration and Conciliation Act 1996 read with Ordinance XII and as
mentioned by the Appeal Committee in para 16.7 of the Award.
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24. Countering the argument upon the truncated body and also the argument
raised by Ld. Counsel for the petitioner to the effect that the Appeal
Committee has overreached its power in as much as directing
reinstatement of the respondent, it has been submitted by Ld. Counsel for
respondent No.1 that the Appeal Committee based upon the entire
material including the submissions made by the parties in the totality of
the facts based upon the analysis of evidence and arguments including the
fact that services of the college teachers of the universities/ colleges are
governed by the terms of the agreement entered into between them in
terms of the Ordinance XII of the Delhi University Act, requirement to
the adherence to the principle of the natural justice, (Clause 6 of
Annexure to Ordinance XII, Clause 9(1) of Annexure to Ordinance XII,
Clause 11 of Ordinance XVIII) has returned findings vide para 16.7 to
16.28 of the said Award/report of the Appeal Committee dated
22.06.2023. Based upon the aforesaid findings, a decision was rendered
by the said Appeal Committee which has already been reproduced vide
para 17.2 to 17.6 herein above.
25. It is thus contended by Ld. Counsel for respondent that since the report of
the Appeal Committee dated 22.06.2023 is based upon the totality of facts
Arb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 23/ 56
and circumstances and since the decision/ award is based upon sound
reasoning the same is beyond the purview of its being challenged under
Section 34 of the Arbitration and Conciliation Act 1996 as laid down in
Dyna Technologies Private Limited V. Crompton Greaves Limited
(2019) 20 SCC 1 and OPG Power Generation Private Limited v.
ENEXIO Power Cooling Solution India Pvt. Ltd. & Anr. (2025)
2SCC417.
ANALYSIS AND FINDINGS
26. Since the present petition is filed under section 34 of the Arbitration and
Conciliation Act, 1996, at the outset, it is relevant to reproduce Section 34
including the contours of the said section in terms of the settled legal
prepositions as follows:
“Section 34 – Application for setting aside arbitral awards—
(1) Recourse to a Court against an arbitral award may be made only by
an application for setting aside such award in accordance with sub-
section (2) and sub-section (3).
(2) An arbitral award may be set aside by the Court only if–
(a) the party making the application 1[establishes on the basis of the
record of the arbitral tribunal that]–
(i) a party was under some incapacity, or (ii) the arbitration agreement
is not valid under the law to which the parties have subjected it or,
failing any indication thereon, under the law for the time being in force;
or (iii) the party making the application was not given proper notice of
the appointment of an arbitrator or of the arbitral proceedings or was
otherwise unable to present his case; or (iv) the arbitral award deals
Arb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 24/ 56
with a dispute not contemplated by or not falling within the terms of the
submission to arbitration, or it contains decisions on matters beyond the
scope of the 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; or (v) the composition of the arbitral tribunal or the
arbitral procedure was not in accordance with the agreement of the
parties, unless such agreement was in conflict with a provision of this
Part from which the parties cannot derogate, or, failing such agreement,
was not in accordance with this Part;
or (b) the Court finds that–
(i) the subject-matter of the dispute is not capable of settlement by
arbitration under the law for the time being in force, or (ii) the arbitral
award is in conflict with the public policy of India.
[Explanation 1.–For the avoidance of any doubt, it is clarified that an
award is in conflict with the public policy of India, only if,–(i) the
making of the award was induced or affected by fraud or corruption or
was in violation of section 75 or section 81; or (ii) it is in contravention
with the fundamental policy of Indian law; or (iii) it is in conflict with
the most basic notions of morality or justice.
[Explanation 2.–For the avoidance of doubt, the test as to whether there
is a contravention with the fundamental policy of Indian law shall not
entail a review on the merits of the dispute.]
2[(2A) An arbitral award arising out of arbitrations other than
international commercial arbitrations, may also be set aside by the
Court, if the Court finds that the award is vitiated by patent illegality
appearing on the face of the award:
Provided that an award shall not be set aside merely on the ground of an
erroneous application of the law or by reappreciation of evidence.]
(3) An application for setting aside may not be made after three months
have elapsed from the date on which the party making that application
had received the arbitral award or, if a request had been made under
section 33, from the date on which that request had been disposed of by
the arbitral tribunal:
Provided that if the Court is satisfied that the applicant was prevented
by sufficient cause from making the application within the said period of
three months it may entertain the application within a further period of
thirty days, but not thereafter.
(4) On receipt of an application under sub-section (1), the Court may,
where it is appropriate and it is so requested by a party, adjourn the
proceedings for a period of time determined by it in order to give the
arbitral tribunal an opportunity to resume the arbitral proceedings or toArb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 25/ 56
take such other action as in the opinion of arbitral tribunal will
eliminate the grounds for setting aside the arbitral award.
(5) An application under this section shall be filed by a party only after
issuing a prior notice to the other party and such application shall be
accompanied by an affidavit by the applicant endorsing compliance with
the said requirement.
(6) An application under this section shall be disposed of expeditiously,
and in any event, within a period of one year from the date on which the
notice referred to in sub-section (5) is served upon the other party.]..”
27. In the present case, the Appeal Committee was constituted by the Hon’ble
Chancellor and Vice President of India, vide its letter dated 05.04.2023,
under the provisions of Ordinance XII Clause 9(1) of the University of
Delhi Act. Under Clause 9 (1) of Annexure II Ordinance XII of the
Ordinances of the University, the Appeal Committee as constituted by the
Hon’ble Chancellor was mandated to look into any dispute arising in
connection with the termination of the services of the teacher by the
Governing Body. The nature of proceeding as envisaged under Clause 9(1)
of Annexure II of the Ordinance XII are to be held by recourse to
alternative dispute redressal mechanism i.e. arbitration having three
independent persons appointed by the Chancellor and whose decision was
to be final and binding upon the parties.
28. The Hon’ble High Court of Delhi in Indraprastha College of Women v.
Himani Malhotra WPC No.11093/2023 vide paras No. 26 to 33 has
conclusively held as follows:
Arb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 26/ 56
“26. First and foremost issue that needs consideration is whether this writ
petition is maintainable in light of the preliminary objection on behalf of
Respondent No. 1 that in light of Clause 9 of Ordinance XII, which provides
that any dispute arising in connection with termination of the services of the
teacher shall be referred to arbitration of an Appeal Committee of three
independent persons appointed by the Chancellor which shall have the power
to inquire into all facts of the case and interpret terms of the Agreement, the
proceedings before the Appeal Committee were arbitration proceedings and the
decision was an arbitral award and thus Petitioner cannot challenge the same
in a writ jurisdiction and the only remedy was to take recourse to filing a
petition under Section 34 of 1996 Act.
27. Before proceeding further, it would be pertinent and relevant to have a close
look at Clause 9 of the Annexure to Ordinance XII, which is extracted
hereunder for the ease of reference:-
“9.(1) Any dispute arising in connection with the termination of the services
of the teacher, except when on probation, by the Governing Body shall be
referred to the arbitration of an Appeal Committee of three independent
persons appointed by the Chancellor, who shall have power to inquire into
all the facts of the case and to interpret the terms of this agreement, and
their decision shall be final and binding on both parties. The Appeal
Committee shall give its final decision within a reasonable time:
Provided that during the pendency of the appeal, the teacher shall continue
to draw such salary or subsistence allowance, as the case may be, as he
was drawing immediately prior to the termination of his/her services.”
28. In K.K. Modi (supra), the Supreme Court laid down the attributes that must
be present in an agreement for it to be an arbitration agreement, which are as
follows:-
“17. Among the attributes which must be present for an agreement to be
considered as an arbitration agreement are:
(1) The arbitration agreement must contemplate that the decision of the
tribunal will be binding on the parties to the agreement, (2) that the
jurisdiction of the tribunal to decide the rights of parties must derive either
from the consent of the parties or from an order of the court or from a
statute, the terms of which make it clear that the process is to be an
arbitration, (3) the agreement must contemplate that substantive rights of
parties will be determined by the agreed tribunal, (4) that the tribunal will
determine the rights of the parties in an impartial and judicial manner with
the tribunal owing an equal obligation of fairness towards both sides, (5)Arb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 27/ 56
that the agreement of the parties to refer their disputes to the decision of
the tribunal must be intended to be enforceable in law and lastly, (6) the
agreement must contemplate that the tribunal will make a decision upon a
dispute which is already formulated at the time when a reference is made to
the tribunal.”
29. It was further held that several other factors may also be relevant in
construing a clause to be an arbitration clause, such as where the agreement
contemplates that the Tribunal will receive evidence from both sides and hear
the contentions of the parties or at least give the parties an opportunity to put
them forward and/or the agreement requires the Tribunal to decide the
disputes according to law. Reliance was placed on a passage from Russel on
Arbitration, 21st Edition, for the purpose of distinguishing between an expert
determination and arbitration. It was held that the emphasis has to be on
existence of disputes as against intention to avoid future disputes and the
Tribunal or the Forum chosen must be intended to act judicially, taking
evidence and submissions and the decision should be intended to bind the
parties albeit nomenclature may not be conclusive. It was emphasized that
true intent and purport of the Agreement must be examined including
statutory requirements of a written agreement as per Section 2 of the 1940
Act or Section 7 of 1996 Act. Relevant passages are as follows:-
“18. The other factors which are relevant include, whether the
agreement contemplates that the tribunal will receive evidence from
both sides and hear their contentions or at least give the parties an
opportunity to put them forward; whether the wording of the
agreement is consistent or inconsistent with the view that the process
was intended to be an arbitration, and whether the agreement requires
the tribunal to decide the dispute according to law.
19. In Russell on Arbitration, 21st Edn., at p. 37, para 2-014, the
question how to distinguish between an expert determination and
arbitration, has been examined. It is stated,
“Many cases have been fought over whether a contract’s
chosen form of dispute resolution is expert determination or
arbitration. This is a matter of construction of the contract,
which involves an objective enquiry into the intentions of the
parties. First, there are the express words of the disputes
clause. If specific words such as ‘arbitrator’, ‘arbitral tribunal’,
‘arbitration’ or the formula ‘as an expert and not as anArb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 28/ 56
arbitrator’ are used to describe the manner in which the dispute
resolver is to act, they are likely to be persuasive although not
always conclusive…. Where there is no express wording, the
court will refer to certain guidelines. Of these, the most
important used to be, whether there was an ‘issue’ between the
parties such as the value of an asset on which they had not
taken defined positions, in which case the procedure was held
to be expert determination; or a ‘formulated dispute’ between
the parties where defined positions had been taken, in which
case the procedure was held to be an arbitration. This
imprecise concept is still being relied on. It is unsatisfactory
because some parties to contract deliberately choose expert
determination for dispute resolution. The next guideline is the
judicial function of an arbitral tribunal as opposed to the
expertise of the expert; …. An arbitral tribunal arrives at its
decision on the evidence and submissions of the parties and
must apply the law or if the parties agree, on other
consideration; an expert, unless it is agreed otherwise, makes
his own enquiries, applies his own expertise and decides on his
own expert opinion….”
20. The authorities thus seem to agree that while there are no conclusive
tests, by and large, one can follow a set of guidelines in deciding
whether the agreement is to refer an issue to an expert or whether the
parties have agreed to resolve disputes through arbitration.
21. Therefore our courts have laid emphasis on (1) existence of disputes
as against intention to avoid future disputes; (2) the tribunal or forum so
chosen is intended to act judicially after taking into account relevant
evidence before it and the submissions made by the parties before it; and
(3) the decision is intended to bind the parties. Nomenclature used by the
parties may not be conclusive. One must examine the true intent and
purport of the agreement. There are, of course, the statutory
requirements of a written agreement, existing or future disputes and an
intention to refer them to arbitration. (Vide Section 2 Arbitration Act,
1940 and Section 7 Arbitration and Conciliation Act, 1996.)
22. In the case of Rukmanibai Gupta v. Collector, Jabalpur [(1980) 4
SCC 556] this Court dwelt upon the fact that disputes were referred to
arbitration and the fact that the decision of the person to whom the
disputes were referred was made final, as determinative of the nature of
the agreement which the Court held was an arbitration agreement.
Arb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 29/ 56
23. In the case of State of U.P. v. Tipper Chand [(1980) 2 SCC 341] a
clause in the contract which provided that the decision of the
Superintending Engineer shall be final, conclusive and binding on all
parties to the contract upon all questions relating to the meaning of the
specifications, designs, drawings and instructions was construed as not
being an arbitration clause. This Court said that there was no mention
in this clause of any dispute, much less of a reference thereof. The
purpose of the clause was clearly to vest the Superintending Engineer
with supervision of the execution of the work and administrative control
over it from time to time.
24. In the case of Cursetji Jamshedji Ardaseer Wadia v. Dr R.D. Shiralee
[AIR 1943 Bom 32 : 44 Bom LR 859] the test which was emphasised
was whether the intention of the parties was to avoid disputes or to
resolve disputes. In the case of Vadilal Chatrabhuj Gandhi v. Thakorelal
Chimanlal Munshaw [(1953) 55 Bom LR 629 : AIR 1954 Bom 121] the
emphasis was on judicial enquiry and determination as indicative of an
arbitration agreement as against an expert opinion. The test of
preventing disputes or deciding disputes was also resorted to for the
purpose of considering whether the agreement was a reference to
arbitration or not. In that case, the agreement provided that the parties
had agreed to enter into a compromise for payment of a sum up to, but
not exceeding, Rs 20 lakhs,
“which shall be borne and paid by the parties in such
proportions or manner as Sir Jamshedji B. Kanga shall, in his
absolute discretion, decide as a valuer and not as an arbitrator
after giving each of us summary hearing”.
The Court said that the mere fact that a judicial enquiry had been held is
not sufficient to make the ultimate decision a judicial decision. The
Court held that Sir Jamshedji Kanga had not to decide upon the
evidence led before him. He had to decide in his absolute discretion.
There was not to be a judicial enquiry worked out in a judicial manner.
Hence this was not an arbitration.
25. In the case of State of W.B. v. Haripada Santra [AIR 1990 Cal 83 :
(1990) 1 Cal HN 76] the agreement provided that in the event of a
dispute, the decision of the Superintending Engineer of the Circle shall
be final. The Court relied upon the fact that the reference was to disputes
between the parties on which a decision was required to be given by the
Superintending Engineer. Obviously, such a decision could be arrived at
by the Superintending Engineer only when the dispute was referred to
him by either party for decision. He was also required to act judiciallyArb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 30/ 56
and decide the disputes after hearing both parties and after considering
the material before him. It was, therefore, an arbitration agreement.
26. In the case of J&K State Forest Corpn. v. Abdul Karim Wani [(1989)
2 SCC 701] (SCC para 24) this Court considered the agreement as an
agreement of reference to arbitration. It has emphasised that (1) the
agreement was in writing; (2) it was a contract at the present time to
refer the dispute arising out of the present contract; and (3) there was a
valid agreement to refer the dispute to arbitration of the Managing
Director, Jammu and Kashmir State Forest Corporation. The Court
observed that endeavour should always be made to find out the intention
of the parties, and that intention has to be found out by reading the terms
broadly and clearly without being circumscribed.
27. The decision in the case of Rukmanibai Gupta [(1980) 4 SCC 556]
has been followed by this Court in the case of M. Dayanand Reddy v.
A.P. Industrial Infrastructure Corpn. Ltd. [(1993) 3 SCC 137]
Commenting on the special characteristics of an arbitration agreement
this Court has further observed in the above case that arbitration
agreement embodies an agreement between the parties that in case of a
dispute such dispute shall be settled by an arbitrator or an umpire of
their own constitution or by an arbitrator to be appointed by the Court
in an appropriate case. (SCC p. 143, para 8)
“It is pertinent to mention that there is a material difference in an
arbitration agreement inasmuch as in an ordinary contract the
obligation of the parties to each other cannot, in general, be
specifically enforced and breach of such terms of contract results
only in damages. The arbitration clause, however, can be
specifically enforced by the machinery of the Arbitration Act.”
28. The Court has further observed that it is to be decided whether the
existence of an agreement to refer the dispute to arbitration can be
clearly ascertained in the facts and circumstances of the case. This, in
turn, depends on the intention of the parties to be gathered from the
relevant documents and surrounding circumstances.”
30. Examined on the touchstone of the parameters laid down by the Supreme
Court in the aforementioned judgment, in my view, Clause 9(1) of Ordinance
XII is an arbitration agreement and envisages reference of dispute arising in
connection with termination of services of the teacher, except in the case of
probationer, to an Appeal Committee of three independent persons appointed
by the Chancellor. Clause 9(2) stipulates that the proceedings before the Appeal
Committee will be governed by 1940 Act. The jurisdiction of the Appeal
Committee to decide the rights of the parties is derived from the Ordinance XII
Arb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 31/ 56
which has statutory force, as held by the Supreme Court in Prabhakar
Ramakrishna Jodh (supra) and by this Court in Shri Chetanya Mohan Gupta
(supra).
31. That the parties intended the Appeal Committee to be an Arbitral Tribunal
and proceedings before it to be arbitration proceedings and/or that the
arbitration proceedings were being conducted in terms of Clause 9(1) of
Ordinance XII, is evident from a host of factors. In the impugned arbitral award
rendered by the Appeal Committee, it is clearly recorded in paragraphs 16.5 to
16.7 that as per Clause 9(1), any dispute arising in connection with termination
of service of a teacher, other than a probationer, will be referred to arbitration
of an Appeal Committee and Indian Arbitration Act, 1940 shall apply to
arbitration proceedings. Contention of counsel for Respondent No. 1 is noted in
paragraph 16.6, wherein he urged that albeit Clause 9(2) refers to applicability
of 1940 Act, the 1996 Act was now in force and it was observed by the Appeal
Committee that parties were categorically informed that the process and
procedure in force would be adhered to. Counsel for the Petitioner, in fact,
argued that after substitution of 1940 Act by 1996 Act, the former stood
repealed and the proceedings will be governed by 1996 Act. At various places
in the pleadings, Petitioner has referred to the proceedings as ‘arbitration
proceedings’ and reply has been filed under the heading ‘reply to Statement of
Claim’. In reply to Statement of Claim, Petitioner stated that 1940 Act was
repealed and 1996 Act was thereafter enacted, therefore, the Appellate Tribunal
was obliged in letter and spirit to abide by the Scheme of 1996 Act while
deciding the appeal. In paragraph 4 of the reply to Statement of Claim, Appeal
Committee is referred to as the ‘Arbitral Tribunal’ and it is further stated that
all proceedings should be conducted in the presence of both the parties and the
Tribunal/Appeal Committee should not entertain any party in the absence of the
other. In paragraph 9, it is averred that after hearing the parties, Appeal
Committee can pass an award. Relevant passages from the report are as
follows:-
“16.5 The Committee also perused Clause 9(1) of Annexure to
Ordinance XII and clause 11 of Ordinance XVIII which states that any
dispute arising in connection with the termination of the services of the
teacher, except when on probation, by the Governing Body shall be
referred to the arbitration of an Appeal Committee of three independent
persons appointed by the Chancellor, who shall have power to inquire
into all the facts of the case and to interpret the terms of this agreement,
and their decision shall be final and binding on both parties. The Appeal
Committee shall give its final decision within a reasonable time:
Provided that during the pendency of the appeal, the teacher shall
continue to draw such salary or subsistence allowance, as the case may
be, as he was drawing immediately prior to the termination of his/her
services.
Arb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 32/ 56
The Indian Arbitration Act, 1940, shall apply to all arbitration under
this Clause.
16.6 As regards, the plea of learned Counsel for the Appellant regarding
applicability of Indian Arbitration Act, 1940 is concerned, it was
brought to the notice of the Committee that at present the Arbitration
and Conciliation Act, 1996 is in force. Hence, it was categorically
informed to the parties that the the processes and procedure in force
would be adhered to.
16.7. However, Sh. Jai Bansal, Learned Counsel of the Appellant
emphasized that provisions contained under Indian Arbitration Act,
1940, shall apply to all arbitration under this Clause since not
incorporated under Ordinance XII of the University. The Learned
Counsel of the Respondent College mentioned the points that the Indian
Arbitration Act, 1940 was substituted by Act of 1996 titled Arbitration
and Conciliation Act, 1996 which completed replaced all old laws
applicable to domestic arbitration and conciliation. So the contention of
the Learned Counsel of the Appellant since repealed is not tenable.”
32. It is clear that Petitioner participated in the proceedings before the Appeal
Committee appointed under Clause 9 of Ordinance XII, knowing fully well and
accepting that the proceedings were arbitration proceedings. While it is true
that nomenclatures and terminologies used in the pleadings may not
necessarily be conclusive of existence of an arbitration agreement between the
parties, but reference to the pleadings by counsel for Respondent No.1 was only
to demonstrate that Petitioner had no confusion or doubt on the nature of
proceedings before the Appeal Committee and moreover, the Appeal Committee
had also mentioned that since 1996 Act had come in proceedings will be
governed by the said Act.
33. Albeit not pleaded, Mr. Gogna had urged during the course of hearing that
notwithstanding the arbitration clause, dispute pertaining to termination of an
employee is a service matter dispute and thus non-arbitrable and Petitioner
cannot be relegated to the remedy of filing objection under Section 34 of the
1996 Act. There is no merit in this contention in the present context for multiple
reasons. The Supreme Court in Vidya Drolia (supra), held that sovereign
functions of the State being inalienable and non- delegable are non-arbitrable
as State alone has exclusive right and duty to perform such functions and
therefore, correctness and validity of the State or sovereign functions cannot be
made a direct matter of private adjudicatory process. Similarly, decisions and
adjudicatory functions of the State that have public interest element such as
legitimacy of marriage, citizenship, winding up of companies, grant of patents
are non-arbitrable, unless the Statue in relation to a regulatory or adjudicatory
mechanism, either expressly or by clear implication permits arbitration. In the
present case, Ordinance XII has expressly included Clause 9(1), which
Arb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 33/ 56
envisages dispute resolution mechanism with respect to disputes pertaining to
termination of teachers, except probationers, through arbitration by reference
to an Appeal Committee comprising of three independent persons as
Arbitrators and therefore, in light of the observations of the Supreme Court in
Vidya Drolia (supra), this contention of the Petitioner merits rejection.”
29. Accordingly, any contrary contention as urged by Counsel for the petitioner
in view of the decision rendered in the matter of Indraprastha College of
Women v. Himani Malhotra WPC No.11093/2023 having attained
finality does not find favour with this Court and are accordingly rejected.
Moreover, the Hon’ble High Court of Delhi besides rejecting the
contentions as raised by Counsel for the petitioner in view of the judgment
rendered in the matter of Vidya Drolia in addition thereto vide para No. 34
agreed with the fact the disputes relating to employment of teachers as
affirmed by legislature can be resolved and adjudicated upon through the
alternate dispute resolution mechanism of arbitration and has
authoritatively held that the report rendered by the committee on
22.06.2023, is an arbitral award. The aforesaid judgment not only has been
passed between the same parties but has also dealt with the arbitrability of
the present dispute by the Appeal Committee in accordance with Clause 9
(1) of Ordinance XII which has thus validly passed the arbitral award.
Besides the aforesaid the said judgment passed by Hon’ble High Court of
Arb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 34/ 56
Delhi has attained finality since the same has not been challenged before
any Hon’ble Superior Court.
30. Further in the matter of ‘Dr. S. Dutt v. University of Delhi‘ 1958 SCC
Online SC66 (which matter also dealt with the dispute between the
professor and University of Delhi), vide para No.18 of the said judgment it
has been held that under the provisions of the Section 45 of the University
Act, the arbitration held under it would be governed by the provisions of
the Arbitration Act and its validity has to be decided with reference to the
rules applying to the Arbitration Act. Thus, the contention of the Ld.
Counsel for the petitioner including the grounds as urged which are based
upon the judgment rendered in the matter of Dr. S. Dutt V. University of
Delhi that since the award has been passed by the Arbitral Committee the
same does not constitute the arbitral award is outrightly rejected, in view of
the authoritative judgment passed in the matter of ‘Dr. S. Dutt v.
University of Delhi‘ as referred itself by Ld. Counsel for the petitioner.
The proceedings with respect to disputes arising out of contract between
the university and teacher were in the nature of the arbitral dispute and
would be governed by the arbitration Act. Thus, in no manner whatsoever,
it can be said that the dispute arising between the petitioner and the
Arb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 35/ 56
respondent was not an arbitrable dispute or was not capable of being
adjudicated by the appeal committee.
31. The matter of Sirsi Municipality v. Cecella Kom Francis Tellis (1973) 3
SCR has distinguished between the three kind of relationships between the
master and servant. It has been held by Hon’ble Apex Court that in case of
relationship of Master and Servant which is governed barely by Contract of
Employment, no declaration of unlawful termination and restoration of
service is permissible since the said declaration would be contrary to the
provisions of Specific Relief Act. It has been held by the Hon’ble Apex
Court that in the second type of cases of Master and Servant which arises
out of Industrial Law, a servant which has been wrongfully dismissed, may
be reinstated due to the operation of Industrial Law which is a special
provision under the Industrial Law and thus a departure from the reliefs
available under the Indian Contract Act and the Specific Relief Act, which
do not provide for reinstatement of a servant. It has further been held by the
Hon’ble Apex Court, that the third category cases of Master and Servant
pertains to the servant being in the employment of the State or of other
public or local authorities or bodies created under statute. It has been held
that in any such dispute of employment the Courts have declared in
Arb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 36/ 56
appropriate cases the dismissal to be invalid, if same is found contrary to
the rules of natural justice or if the dismissal is in violation of provisions of
the statute. It has thus been held that apart from intervention of statue there
would not be a declaration of nullity in the case of termination or dismissal
of a servant or other local authorities or statutory bodies. The declaration
given by the Courts declaring the dismissal to be a nullity arises out of the
fact that the Courts keep the state and public authorities within the limits of
their statutory power.
32. Further in the matter of SBI v. S.N. Goel (2008) 8SCC 92, the Hon’ble
Apex Court has clearly relied upon the distinction between the public
employment governed by the statutory rules and also the employment
governed purely by a contract to lay down the distinction as to cases in
which the contract of service cannot to enforced to cases in which the same
can be enforced by placing reliance on the exceptions made to the general
rule. The relevant para of the said judgment i.e. para 17 is reproduced
herein as below for ready reference as below:
“17. Where the relationship of master and servant is purely contractual,
it is well settled that a contract of personal service is not specifically
enforceable, having regard to the bar contained in Section 14 of the
Specific Relief Act, 1963. Even if the termination of the contract of
employment (by dismissal or otherwise) is found to be illegal or in
breach, the remedy of the employee is only to seek damages and not
specific performance. Courts will neither declare such termination to beArb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 37/ 56
a nullity nor declare that the contract of employment subsists nor grant
the consequential relief of reinstatement.
The three well-recognized exceptions to this rule are:
(i) where a civil servant is removed from service in contravention of the
provisions of Article 311 of the Constitution of India (or any law made
under Article 309);
(ii) where a worker having the protection of the Industrial Disputes Act,
1947 is wrongfully terminated from service; and
(iii) where an employee of a statutory body is terminated from service in
breach or violation of any mandatory provision of a statute or statutory
rules.
There is thus a clear distinction between public employment
governed by statutory rules and private employment governed purely by
contract. The test for deciding the nature of relief damages or
reinstatement with consequential relief is whether the employment is
governed purely by contract or by a statute or statutory rules. Even
where the employer is a statutory body, where the relationship is purely
governed by contract with no element of statutory governance, the
contract of personal service will not be specifically enforceable.
Conversely, where the employer is a non-statutory body, but the
employment is governed by a statute or statutory rules, a declaration
that the termination is null and void and that the employee should be
reinstated can be granted by courts. (See S.B. Dutt (Dr.) v. University of
Delhi, U.P. Warehousing Corp. v. Chandra Kiran Tyagi, Sirsi
Municipality v. Cecelia Kom Francis Tellis, Vaish Degree College v.
Lakshmi Narain, J. Tiwari v. Jwala Devi Vidya Mandir and Dipak
Kumar Biswas v Director of Public Instruction.
33. Thus in view of the same it can safely be said that the present dispute is not
a dispute purely of contractual employment and thus there is no bar upon
the Appeal Committee to direct reinstatement of the Respondent No 1 by
specifically enforcing the contract/ agreement. On the strength of the
aforesaid judgments, it is thus held that in the present case since the
employment of the respondent was governed by a statute and arises under
a statue i.e. Delhi University Act, the contention of the Ld. Counsel for the
Arb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 38/ 56
petitioner to the fact that Specific Relief Act prohibits the enforcement of
the contract of personal service is completely misplaced.
34. The present dispute as rightly held by the Appeal Committee vide para
16.7 thereof, is governed by the Arbitration Act 1996 read with Ordinance
XII of the University. The present case thus is governed by the third
category of cases pertaining to Master and Servant and the respondent
herein is in the employment public/local authorities or bodies created
under statute and upon whomthe University of Delhi Act including the
Ordinances promulgated have an over-riding effect. Thus, the ratio of the
judgment as laid down by the constitutional bench in the matter of Sirsi
Municipality v. Cecella Kom Francis Tellis (1973) 3 SCR is fully
applicable and thus, the Appeal Committee was fully competent to
adjudicate upon the illegal termination of the respondent. By no stretch of
imagination, it can be said that the Appeal Committee could not have
declared the termination of the respondent illegal and directing her
reinstatement since her employment with the petitioner college was under
Ordinance XII of the University of Delhi Act. On the strength of the
aforesaid judgments, it is thus held that in the present case since the
employment of the respondent was governed by a statute and arises under
Arb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 39/ 56
a statue i.e. Delhi University Act, the contention of the Ld. Counsel for thepetitioner to the fact that Specific Relief Act prohibits the enforcement of
the contract of personal service is completely misplaced.
35. Thus, the only aspect which requires determination is that whether the
award passed by the duly constituted statutory arbitral tribunal in a dispute
which too is arbitrable is as to whether this court can in exercise of the
powers under section 34 of the arbitration and conciliation Act, 1996
interfere in any of the findings returned by the appeal committee/Arbitral
Tribunal and also that the award passed i.e. report of the Appeal
Committee is violative of any of the provisions of Section 34 of the
Arbitration and Conciliation Act.
36. The law regarding patent illegality, public policy, and fundamental policy
of India is no longer res-integra. The Act, 1996 has been well interpreted
with regard to Section 34 through various judicial precedents. The scope of
Section 34 being very limited in nature, has been thoroughly explored by
the Indian legal system.
37. The challenge of an Award under Section 34 arising out of Arbitration
proceedings must satisfy the tests laid down by virtue of the provisions of
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the Act, 1996, and the law settled by way of pronouncements by theHon’ble Supreme Court. The Act, 1996 has been set forth with the
intention to limit the interference of the Courts in the arbitral proceedings.
38. The Arbitral Tribunal, who in its wisdom, passes an Award, upon
conducting the arbitration proceedings with the participation of parties to
the dispute, considering the Statement of Claim and Statement of Defence
presented by and on behalf of the parties, the relevant documents placed on
record by the parties, is considered as Court for the purposes of
adjudicating the dispute before it. An unfettered scope of intervention in its
functioning would defeat the spirit and purpose of the Act, 1996.
Therefore, the Hon’ble Supreme Court has time and again reiterated that
the scope of intervention of the Courts is limited in the cases of challenge
under Section 34.
39. The Hon’ble Supreme Court in Delhi Airport Metro Express (P) Ltd.v.
DMRC, (2022) 1 SCC 131, has observed as under:
“28. This Court has in several other judgments interpreted Section 34
of the 1996 Act to stress on the restraint to be shown by Courts while
examining the validity of the arbitral awards. The limited grounds
available to Courts for annulment of arbitral awards are well known
to legally trained minds. However, the difficulty arises in applying the
well-established principles for interference to the facts of each case
that come up before the Courts. There is a disturbing tendency ofArb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 41/ 56
Courts setting aside arbitral awards, after dissecting and reassessing
factual aspects of the cases to come to a conclusion that the award
needs intervention and thereafter, dubbing the award to be vitiated by
either perversity or patent illegality, apart from the other grounds
available for annulment of the award. This approach would lead to
corrosion of the object of the 1996 Act and the endeavors made to
preserve this object, which is minimal judicial interference with
arbitral awards. That apart, several judicial pronouncements of this
Court would become a dead letter if arbitral awards are set aside by
categorising them as perverse or patently illegal without appreciating
the contours of the said expressions.
xxx
30. Section 34(2)(b) refers to the other grounds on which a court can
set aside an arbitral award. If a dispute which is not capable of
settlement by arbitration is the subject-matter of the award or if the
award is in conflict with public policy of India, the award is liable to
be set aside. Explanation (1), amended by the 2015 Amendment Act,
clarified the expression “public policy of India” and its connotations
for the purposes of reviewing arbitral awards. It has been made clear
that an award would be in conflict with public policy of India only
when it is induced or affected by fraud or corruption or is in violation
of Section 75 or Section 81 of the 1996 Act, if it is in contravention
with the fundamental policy of Indian law or if it is in conflict with
the most basic notions of morality or justice.
31. In Ssangyong [Ssangyong Engg. & Construction Co. Ltd. v.
NHAI, (2019) 15 SCC 131 : (2020) 2 SCC (Civ) 213] , this Court
held that the meaning of the expression “fundamental policy of
Indian law” would be in accordance with the understanding of this
Court in Renusagar Power Co. Ltd. v. General Electric Co.
[Renusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1)
SCC 644] . In Renusagar [Renusagar Power Co. Ltd. v. General
Electric Co., 1994 Supp (1) SCC 644] , this Court observed that
violation of the Foreign Exchange Regulation Act, 1973, a statute
enacted for the “national economic interest”, and disregarding the
superior Courts in India would be antithetical to the fundamental
policy of Indian law. Contravention of a statute not linked to public
policy or public interest cannot be a ground to set at naught an
arbitral award as being discordant with the fundamental policy of
Indian law and neither can it be brought within the confines of
“patent illegality” as discussed above. In other words, contravention
of a statute only if it is linked to public policy or public interest is
cause for setting aside the award as being at odds with the
fundamental policy of Indian law. If an arbitral award shocks theArb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 42/ 56
conscience of the court, it can be set aside as being in conflict with
the most basic notions of justice. The ground of morality in this
context has been interpreted by this Court to encompass awards
involving elements of sexual morality, such as prostitution, or awards
seeking to validate agreements which are not illegal but would not be
enforced given the prevailing mores of the day. [Ssangyong Engg. &
Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 : (2020) 2 SCC
(Civ) 213]”
40. The above-mentioned judgment by the Hon’ble Supreme Court states that
the concepts which are to be followed under Section 34 of the Act, 1996 is
crystal clear. When a court applies the “public policy‟ test to an arbitration
award, the court does not function as a court of appeal, and as a result, any
mistakes of fact that may have been made, cannot be rectified. This is
something that must be recognized very well. Since, the arbitrator is the
ultimate master of the quantity and quality of evidence to be relied upon
when delivering his arbitral award, each possible view that the arbitrator
may have on the facts needs to pass his approval in order for it to be
considered. Therefore, an award that is based on scanty evidence or on
evidence that a trained legal mind deems to be of insufficient quality
would not be deemed to be invalid on the basis of this criterion. After it has
been established that the arbitrator’s method is neither arbitrary nor
capricious, then it can be said that he has the final word on the facts. There
is also no dispute on the position of law that an Arbitrator being creature of
Arb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 43/ 56
a Contract, has to confine himself to the provisions of the Contract while
deciding the dispute.
41. Under Section 34 of the Act, 1996, it is a well-settled position that the
Court does not sit in appeal over the arbitral award and may interfere on
merits on the limited ground as provided under Section 34(2)(b)(ii) of the
Act, 1996, i.e., if the award is against the public policy of India. As per the
legal position clarified through decisions of the Hon’ble Apex Court prior
to the amendments in the 1996 Act in 2015, a violation of India public
policy in turn, includes a violation of the fundamental policy of Indian law,
a violation of the interest of India, conflict with justice or morality and
existence of patent illegality in the arbitral award. The concept of the
fundamental policy of Indian Law would cover the compliance with the
statutes under judicial precedents adopting a judicial approach, compliance
with the principles of nature justice, and reasonableness.
42. It is only if one of the conditions is met that the Court may interfere with
an arbitral award in terms of Section 34(2)(b)(ii) of the Act, 1996, but the
said interference does not entail a review of the merits of the dispute as it
is limited to the situations where the findings of the arbitration are
arbitrary, capricious, or perverse, or when the conscience of the Court is
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shocked, or when the illegality is not trivial but goes to the root of the
matter. An arbitral award may not be interfered with, if the view taken by
the Ld arbitrator is a possible view based on the facts.
43. Hence, there is a limitation on the powers of this Court while examining its
jurisdiction under Section 34 of the Act, 1996, however, at the same time,
if the interpretation put forward by the Arbitral Tribunal, on the face of it is
incorrect and rendering a Clause in the Agreement to be redundant, such
interpretation cannot be sustained.
44. In the case of Reliance Infrastructure Ltd. v. State of Goa, 2023 SCC
OnLine SC 604, wherein, the Hon’ble Supreme Court held as under:
“47. Having regard to the contentions urged and the issues raised, it
shall also be apposite to take note of the principles enunciated by this
Court in some of the relevant decisions cited by the parties on the
scope of challenge to an arbitral award under Section 34 and the
scope of appeal under Section 37 of the Act of 1996.
48. In MMTC Limited (supra), this Court took note of various
decisions including that in the case of Associate Builders (supra) and
exposited on the limited scope of interference under Section 34 and
further narrower scope of appeal under Section 37 of the Act of 1996,
particularly when dealing with the concurrent findings (of the
Arbitrator and then of the Court).
This Court, inter alia, held as under:–
“11. As far as Section 34 is concerned, the position is well-settled by
now that the Court does not sit in appeal over the arbitral award and
may interfere on merits on the limited ground provided under Section
34(2)(b)(ii) i.e. if the award is against the public policy of India. As
per the legal position clarified through decisions of this Court prior
to the amendments to the 1996 Act in 2015, a violation of IndianArb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 45/ 56
public policy, in turn, includes a violation of the fundamental policy
of Indian law, a violation of the interest of India, conflict with justice
or morality, and the existence of patent illegality in the arbitral
award. Additionally, the concept of the “fundamental policy of Indian
law” would cover compliance with statutes and judicial precedents,
adopting a judicial approach, compliance with the principles of
natural justice, and Wednesbury [Associated Provincial Picture
Houses v. Wednesbury Corpn., [1948] 1 K.B. 223 (CA)]
reasonableness. Furthermore, “patent illegality” itself has been held
to mean contravention of the substantive law of India, contravention
of the 1996 Act, and contravention of the terms of the contract.
12. It is only if one of these conditions is met that the Court may
interfere with an arbitral award in terms of Section 34(2)(b)(ii), but
such interference does not entail a review of the merits of the dispute,
and is limited to situations where the findings of the arbitrator are
arbitrary, capricious or perverse, or when the conscience of the
Court is shocked, or when the illegality is not trivial but goes to the
root of the matter. An arbitral award may not be interfered with if the
view taken by the arbitrator is a possible view based on facts. (See
Associate Builders v. DDA [Associate Builders v. DDA, (2015) 3 SCC
49 : (2015) 2 SCC (Civ) 204]. Also see ONGC Ltd. v. Saw Pipes Ltd.
[ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705]; Hindustan Zinc
Ltd. v. Friends Coal Carbonisation [Hindustan Zinc Ltd. v. Friends
Coal Carbonisation, (2006) 4 SCC 445]; and McDermott
International Inc. v. Burn Standard Co. Ltd. [McDermott
International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181]).
13. It is relevant to note that after the 2015 Amendment to Section 34,
the above position stands somewhat modified. Pursuant to the
insertion of Explanation 1 to Section 34(2), the scope of
contravention of Indian public policy has been modified to the extent
that it now means fraud or corruption in the making of the award,
violation of Section 75 or Section 81 of the Act, contravention of the
fundamental policy of Indian law, and conflict with the most basic
notions of justice or morality. Additionally, sub-section (2-A) has
been inserted in Section 34, which provides that in case of domestic
arbitrations, violation of Indian public policy also includes patent
illegality appearing on the face of the award. The proviso to the same
states that an award shall not be set aside merely on the ground of an
erroneous application of the law or by reappreciation of evidence.
14. As far as interference with an order made under Section 34, as
per Section 37, is concerned, it cannot be disputed that such
interference under Section 37 cannot travel beyond the restrictions
laid down under Section 34. In other words, the court cannotArb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 46/ 56
undertake an independent assessment of the merits of the award, and
must only ascertain that the exercise of power by the court under
Section 34 has not exceeded the scope of the provision. Thus, it is
evident that in case an arbitral award has been confirmed by the
court under Section 34 and by the court in an appeal under Section
37, this Court must be extremely cautious and slow to disturb such
concurrent findings.”
45. In the case of Sangyong Engineering ((2019) 15 SCC 131 : (2020) 2 SCC
(Civ) 213), the Hon’ble Apex Court has set out the scope of challenge under
Section 34 of the Act of 1996 in further details in the following words:–
“26. Insofar as domestic awards made in India are concerned, an
additional ground is now available under sub-section (2-A), added by
the Amendment Act, 2015, to Section 34. Here, there must be patent
illegality appearing on the face of the award, which refers to such
illegality as goes to the root of the matter but which does not amount to
mere erroneous application of the law. In short, what is not subsumed
within “the fundamental policy of Indian law”, namely, the
contravention of a statute not linked to public policy or public interest,
cannot be brought in by the backdoor when it comes to setting aside an
award on the ground of patent illegality.
27. Secondly, it is also made clear that reappreciation of evidence, which
is what an appellate court is permitted to do, cannot be permitted under
the ground of patent illegality appearing on the face of the award.
28. To elucidate, para 42.1 of Associate Builders [Associate Builders v.
DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204], namely, a mere
contravention of the substantive law of India, by itself, is no longer a
ground available to set aside an arbitral award. Para 42.2 of Associate
Builders [Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC
(Civ) 204], however, would remain, for if an arbitrator gives no reasons
for an award and contravenes Section 31(3) of the 1996 Act, that would
certainly amount to a patent illegality on the face of the award.
29. The change made in Section 28(3) by the Amendment Act really
follows what is stated in paras 42.3 to 45 in Associate Builders
[Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ)
204], namely, that the construction of the terms of a contract is
primarily for an arbitrator to decide, unless the arbitrator construes the
contract in a manner that no fair-minded or reasonable person would; in
short, that the arbitrator’s view is not even a possible view to take. Also,
if the arbitrator wanders outside the contract and deals with matters notArb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 47/ 56
allotted to him, he commits an error of jurisdiction. This ground of
challenge will now fall within the new ground added under Section 34(2-
A).
30. What is important to note is that a decision which is perverse, as
understood in paras 31 and 32 of Associate Builders [Associate Builders
v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204], while no longer
being a ground for challenge under “public policy of India”, would
certainly amount to a patent illegality appearing on the face of the
award. Thus, a finding based on no evidence at all or an award which
ignores vital evidence in arriving at its decision would be perverse and
liable to be set aside on the ground of patent illegality. Additionally, a
finding based on documents taken behind the back of the parties by the
arbitrator would also qualify as a decision based on no evidence
inasmuch as such decision is not based on evidence led by the parties,
and therefore, would also have to be characterised as perverse.”
46. The limited scope of challenge under Section 34 of the Act was once again
highlighted by Hon’ble Apex Court Court in the case of PSA SICAL
Terminals Pvt Ltd Vs Board of Trustees of VO (AIR 2021 SC 4661)
which explained the relevant tests as under:–
“43. It will thus appear to be a more than settled legal position, that in
an application under Section 34, the court is not expected to act as an
appellate court and reappreciate the evidence. The scope of interference
would be limited to grounds provided under Section 34 of the Arbitration
Act. The interference would be so warranted when the award is in
violation of “public policy of India”, which has been held to mean “the
fundamental policy of Indian law”. A judicial intervention on account of
interfering on the merits of the award would not be permissible.
However, the principles of natural justice as contained in Section 18 and
34(2)(a)(iii) of the Arbitration Act would continue to be the grounds of
challenge of an award. The ground for interference on the basis that the
award is in conflict with justice or morality is now to be understood as a
conflict with the “most basic notions of morality or justice”. It is only
such arbitral awards that shock the conscience of the court, that can be
set aside on the said ground. An award would be set aside on the ground
of patent illegality appearing on the face of the award and as such,
which goes to the roots of the matter. However, an illegality with regard
to a mere erroneous application of law would not be a ground for
interference. Equally, reappreciation of evidence would not beArb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 48/ 56
permissible on the ground of patent illegality appearing on the face of
the award.
44. A decision which is perverse, though would not be a ground for
challenge under “public policy of India”, would certainly amount to a
patent illegality appearing on the face of the award. However, a finding
based on no evidence at all or an award which ignores vital evidence in
arriving at its decision would be perverse and liable to be set aside on
the ground of patent illegality.
45. To understand the test of perversity, it will also be appropriate to
refer to paragraph 31 and 32 from the judgment of this Court in
Associate Builders (supra), which read thus:
“31. The third juristic principle is that a decision which is perverse or so
irrational that no reasonable person would have arrived at the same is
important and requires some degree of explanation. It is settled law that
where:
(i) a finding is based on no evidence, or(ii) an Arbitral Tribunal takes
into account something irrelevant to the decision which it arrives at;
or(iii) ignores vital evidence in arriving at its decision, such decision
would necessarily be perverse.
32. A good working test of perversity is contained in two judgments. In
Excise and Taxation Officer cum-Assessing Authority v. Gopi Nath &
Sons [1992 Supp (2) SCC 312], it was held : (SCC p. 317, para 7)
“7. … It is, no doubt, true that if a finding of fact is arrived at by
ignoring or excluding relevant material or by taking into consideration
irrelevant material or if the finding so outrageously defies logic as to
suffer from the vice of irrationality incurring the blame of being
perverse, then, the finding is rendered infirm in law.”….”
47. In Dyna Technologies Private Limited V. Crompton Greaves Limited
(2019) 20 SCC 1 the Hon’ble Apex Court vide para 33 to 35 has stated as
follows :
33. It may be relevant to note Russell on Arbitration, 23rd Edn.
(2007), wherein he notes that:
“If the Court can deduce from the award and the materials before
it, which may include extracts from evidence and the transcript of
hearing, the thrust of the tribunal’s reasoning, then no irregularity
will be found….Equally, the court should bear in mind that when
considering awards produced by non-lawyer arbitrators, the courtArb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 49/ 56
should look at the substance of such findings, rather than their
form, and that one should approach a reading of the award in a
fair, and not in an unduly literal way,”
34. The mandate under Section 31(3) of the Arbitration Act is to
have reasoning that is intelligible and adequate and which, in
appropriate cases, can even be implied by the courts from a fair
reading of the award and documents referred to thereunder, if the
need be. The aforementioned provision does not require an
elaborate judgment to be passed by the arbitrators with regard to
the speedy resolution of the dispute.
35. When we consider the requirement of a reasoned order, three
characteristics of a reasoned order can be fathomed. They are:
proper, intelligible, and adequate. If the reasoning in the order is
improper, it reveals a flaw in the decision-making process. If the
challenge to an award is based on impropriety or perversity in the
reasoning, then it can be challenged strictly on the grounds
provided under Section 34 of the Arbitration Act. If the challenge
to an award is based on the ground that it is unintelligible, it
would be equivalent to providing no reasons at all Turning to the
last aspect concerning the challenge of adequacy of reasons, the
Court, while exercising jurisdiction under Section 34, must
adjudicate the validity of such an award based on the degree of
particularity of reasoning required with regard to the nature of the
issues under consideration. The degree of particularity cannot be
stated precisely, as it depends on the complexity of the issue. Even
if the Court concludes that there were gaps in the reasoning for the
conclusions reached by the Tribunal, it must consider the
documents submitted by the parties and the arguments raised
before the Tribunal so that awards with inadequate reasons are not
dismissed arbitrarily. On the other hand, ordinarily unintelligible
awards are to be dismissed, subject to party autonomy to dispose
of the reasoned award. Therefore, the courts are required to be
careful in distinguishing between inadequacy of reasons in an
award and unintelligible awards.
48. The present matter besides the above mentioned cases is also squarely
covered by a recent judgment passed by the Hon’ble Apex Court in the
Arb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 50/ 56
matter of OPG Power Generation Private Limited v. ENEXIO PowerCooling Solution India Pvt. Ltd. & Anr. (2025) 2SCC417, wherein, taking
note of the judgment rendered in the celebrated case of SSANGYONG
ENGG. vide para 74 thereof, it has been reiterated that while exercising
powers under Section 34 of the 1996 Act, the Court does not sit in appeal
over the arbitral award. Interference with a arbitral award is only with
limited grounds as set out in Section 34 of the 1996 Act. A possible view by
the Arbitrator on facts is to be restricted as the Arbitrator is the ultimate
master of the quantity and quality of evidence to be relied upon. It is only
when an arbitral award could be categorised as perverse, that on an error of
fact an arbitral award may be set aside. Further, a mere erroneous
application of the law or wrong appreciation of evidence by itself is not a
ground to set aside an award as is clear from the provisions of sub section
(2-A) of Section 34 of the 1996 Act. In the said judgment, vide para 80
thereof, the decision rendered in Dyna Technologies (SUPRA) has been
affirmed and a distinction has been made between the ground of improper or
inadequate reason, or lack of reasons, as follows:
1. Where no reasons are recorded or the reasons recorded are
unintelligible;
2. Where reasons are improper, that is, they reveal a flaw in the
decision making process;
3. Where reasons appear inadequate;
Arb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 51/ 56
49. Vide para 81, it has been held that awards falling in category one are
vulnerable as they would be in conflict with the provisions of Section 31(3)
of 1996 Act and are liable to be set aside unless the parties have agreed that
no reasons are to be given or that the award is an arbitral award on agreed
terms under Section 30. It has further been held vide para 82 of the said
judgment that awards falling in category two are amenable to challenge on
the ground of impropriety or perversity, strictly in accordance with the
grounds set out in Section 34 of 1996 Act. Vide para 83, it has been
specified that awards falling in category three are required to be dealt with
care. In a challenge to such award, before taking a decision the Court must
take into consideration the nature of issues arising between the parties in the
arbitral proceedings and the degree of reasoning required to address them.
The Court must thereafter carefully peruse the award and the documents
referred to therein. If reasons are intelligible and adequate on a fair reading
of the award and, in appropriate cases, implicit in the documents referred to
therein, the award is not to be set aside for inadequacy of reasons. However,
if gaps are such that they render the reasoning in support of the award
unintelligible or lacking, the Court exercising powers under Section 34 may
set aside the award.
Arb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 52/ 56
50. In the present matter, the Arbitral Tribunal/Appeal Committee, who in terms
of Clause 9 (1) of Ordinance XII was empowered to enquire into all the
facts of the case and to interpret the terms of the agreement has returned
detailed findings upon minute appreciation of facts as is evident from para
16.1 to 16.28 including the determination of the question of the Governing
Body being truncated including the conduct of the principal which wrote
letters directly to the members of the Appeal Committee attempting to exert
influence upon the members of the Appeal Committee. It has clearly held by
the Appeal Committee that the Governing Body of the college which has
taken decision to suspend the respondent No.1 and later removal of her
services comprised of five persons including the principal, two university
representatives besides one non teaching representative Sh. Dinesh Sudriyal,
Administrative Officer of the college. It has been observed by the Appeal
Committee that in the meeting of the Governing Body held on 12.09.2012,
despite the two members of the Governing Body having given their dissent,
the same was nowhere recorded. It is further observed that there has been a
subjectivity in the matter with which the services of the appellant had been
terminated and also that due to such subjectivity having been crept in, the
charges have been ballooned out of proportion. It has further been observed
that even the proved charges do not attract any serious offence and
Arb No 97/2025 Indraprastha College for Women Vs Ms. Himani Malhotra Page No 53/ 56
outwardly the action of the Governing Body in removing the services of
respondent No.1 was uncalled for.
51. The Appeal Committee based upon the aforesaid findings have rendered a
decision that besides the Governing Body of the college not being fully
representative, the sixth member was invited by the principal on the
committee i.e. Sh. Dinesh Sundiryal, Administrative Officer, was himself
involved in the matter and who thus cannot be said to be impartial. It has
further been held that despite there being a provision of the principal having
recused herself and instead of vice principal of the college could have
officiated as member secretary of the Governing Body, she did not recuse
despite herself being a part to the case. The Appeal Committee accordingly
set aside the order dated 08.08.2020 and 07.08.2021, passed by the
Governing Body in terminating the services of respondent No.1 and directed
her reinstatement with immediate effect in the grade pay/level as she was
drawing at the time of her termination of services. It was accordingly held
that the punishment awarded to the respondent is dis-proportionate to the
charges proved and the Governing Body merely upon paltry portion of
proved charges had taken harsh decision for the removal of services of
respondent which is not justifiable. The Appeal Committee who was the
master of the quality and quantity of the evidence, based upon the entire
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case analysis has held that there was not enough material on record to take
such a harsh action of removal of services of the respondent. It was
reiterated that the subsistence allowance in terms of the decision taken
04.05.2023 @ 75 % w.e.f the date it was reduced be restored till the time
the respondent is reinstated. The said decision based upon the detailed
findings and intelligible reasoning by an independent statutorily constituted
arbitral tribunal cannot by any stretch of imagination, be said to suffer from
any infirmity and neither it can be said that the reasoning was unintelligible
or inadequate in any manner.
52. The decision as rendered by the Appeal Committee cannot be said suffer
from any flaw in the decision making process and its report/award cannot be
said to suffer from any perversity or impropriety and thus is beyond the pale
of challenge on the grounds provided under Section 34 of the Arbitration
and Conciliation Act. Since the decisions reached by the Appeal Committee
are intelligible, adequate and well reasoned as is apparent on a fair reading
of the award, this Court exercising powers under 34 of the Arbitration and
Conciliation Act does not exercise power of an Appellate Court over the
arbitral award/report of Appeal Committee. Accordingly, the present petition
is dismissed being bereft of any grounds warranting interference in the
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limited scope of its powers as set out in Section 34 of the Arbitration and
Conciliation Act, 1996.
Announced in the open court (Sachin Sood)
Digitally
signed by
SACHIN SACHIN
Date:
SOOD
SOOD 2026.02.25
on 25.02.2026. DJ-01 (Central)
16:08:42
+0530
THC, Delhi.
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