ADVOCATEMMMOHAN: Preventive detention vis-à-vis “public order” Par...

ADVOCATEMMMOHAN: Preventive detention vis-à-vis “public order” Par...: advocatemmmohan Preventive detention vis-à-vis “public order” Paras 10–11 Mere registration of multiple criminal cases under the NDPS Act...

Preventive detention vis-à-vis “public order”

Paras 10–11

Mere registration of multiple criminal cases under the NDPS Act against a detenu, without specific material demonstrating that such activities caused or were likely to cause harm, danger, alarm, or a feeling of insecurity among the general public or posed a grave threat to public health, is insufficient to sustain an order of preventive detention under Section 3 of the Telangana Prevention of Dangerous Activities Act, 1986.

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Headnote 2 — Distinction between “law and order” and “public order”

Para 10

There exists a well-settled and fine distinction between “law and order” and “public order”; activities amounting to breach of law and order do not ipso facto constitute disturbance of public order unless their impact transcends individual cases and affects the community at large.

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Headnote 3 — Bail and preventive detention

Paras 8–9

Preventive detention cannot be justified merely on the apprehension that the detenu, if released on bail, may indulge in similar offences, particularly where there is no material to show violation of bail conditions and no steps have been taken for cancellation of bail under ordinary criminal law.

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Headnote 4 — Subjective satisfaction and non-application of mind

Paras 8–10

Reproduction of statutory language contained in Section 2(a) of the Act of 1986, without indicating how the detenu’s activities actually or likely affected maintenance of public order, reflects non-application of mind and vitiates the subjective satisfaction of the detaining authority.

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Headnote 5 — Preventive detention not a substitute for ordinary criminal process

Paras 8–9 (read with Ameena Begum, cited and applied)

Preventive detention being an extraordinary measure cannot be invoked as a substitute for cancellation of bail or to bypass ordinary criminal procedure, particularly when ordinary law provides sufficient remedies to deal with the alleged conduct of the detenu.

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ANALYSIS (Judicial Reasoning of the Court)

1. Nature of material relied upon
   The detention order was founded solely on:

   • three criminal cases registered within a short span,

   • the detenu being labelled a “drug offender” under Section 2(f),

   • an apprehension that she might reoffend if released on bail.

2. Absence of public-order impact
   The Court found that:

   • no material was placed to show how the alleged ganja offences affected the community at large,

   • there was no indication of widespread danger, panic, alarm, or grave public health threat,

   • mere seizure and registration of crimes does not automatically elevate the conduct to public-order disturbance.

3. Improper reliance on bail apprehension
   The detaining authority:

   • relied heavily on the likelihood of the detenu being released on bail,

   • failed to examine whether bail conditions were violated,

   • did not attempt cancellation of bail,
     thereby revealing an intent to detain “at any cost”.

4. Extraneous considerations and misuse of detention law
   Applying Ameena Begum v. State of Telangana, the Court held that:

   • preventive detention cannot be used to circumvent judicial orders granting bail,

   • expressions showing frustration with bail orders indicate extraneous considerations,

   • such misuse vitiates the detention order.

5. Failure of subjective satisfaction
   The Court held that:

   • mere reproduction of statutory phrases is insufficient,

   • subjective satisfaction must be supported by specific, relevant material,

   • absence of such material renders detention unconstitutional.

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RATIO DECIDENDI

An order of preventive detention under the Telangana Prevention of Dangerous Activities Act, 1986 is unsustainable where it is based merely on registration of criminal cases and apprehension of future offences upon release on bail, without specific material demonstrating that the detenu’s activities affected or were likely to affect maintenance of public order; preventive detention cannot be used as a substitute for cancellation of bail or ordinary criminal process.

Where multiple cheques arising out of the same underlying transaction are distinct instruments, drawn on different accounts, presented on different dates, and dishonoured separately, each dishonour followed by independent statutory compliance gives rise to a separate cause of action under Section 138 of the Negotiable Instruments Act; and whether such cheques were issued as alternative, supplementary, or substitute instruments is a disputed and mixed question of fact requiring evidence, which cannot be adjudicated in exercise of inherent jurisdiction under Section 482 CrPC.

Paras 33–35, 34, 26–28

Where multiple cheques arising out of the same underlying transaction are distinct instruments, drawn on different accounts, presented on different dates, and dishonoured separately, each dishonour followed by independent statutory compliance gives rise to a separate cause of action under Section 138 of the Negotiable Instruments Act; and whether such cheques were issued as alternative, supplementary, or substitute instruments is a disputed and mixed question of fact requiring evidence, which cannot be adjudicated in exercise of inherent jurisdiction under Section 482 CrPC.

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ANALYSIS (What the Court actually examined)

1. Factual premise before the Court

   • Multiple cheques were issued in relation to one transaction.

   • Cheques were:

     • separate instruments,

     • drawn on different accounts (personal and firm),

     • presented on different dates,

     • dishonoured on different dates,

     • followed by independent statutory notices.

2. Error committed by the High Court

   • The High Court assumed that one set of cheques was issued in lieu of or in substitution of another.

   • On that assumption, it quashed one complaint under Section 482 CrPC, treating continuation as abuse of process.

3. Supreme Court’s correction

   • The Apex Court held that:

     • whether cheques were alternative, supplementary, or substituted instruments depends on intention of parties,

     • such intention is disputed and cannot be presumed,

     • adjudicating this requires evidence and trial.

4. Scope of Section 482 CrPC reiterated

   • The High Court cannot:

     • decide disputed factual issues,

     • assess intention behind issuance of cheques,

     • or determine substitution/novation at the threshold.

   • Doing so amounts to an impermissible mini-trial.

5. NI Act framework applied

   • Each dishonour, if statutory steps are completed, constitutes an offence.

   • Defences such as absence of liability, adjustment of amounts, or substitution of cheques are matters of trial, not quashing.

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RATIO DECIDENDI (Narrow and Authoritative)

The High Court cannot quash a complaint under Section 138 of the Negotiable Instruments Act by assuming that one set of cheques substitutes or replaces another, since whether multiple cheques issued in respect of the same transaction are alternative, supplementary, or substituted instruments is a mixed question of fact requiring evidence and trial, and cannot be decided in exercise of inherent jurisdiction under Section 482 CrPC.

Where a co-sharer expressly ratifies an agreement to sell and the acts of a power-of-attorney holder by a subsequent affidavit, limitation under Article 54 of the Limitation Act commences from the date of such ratification, and refusal thereafter is unjustified; in such circumstances, denial of specific performance on grounds of limitation or lack of readiness and willingness is unsustainable, and specific performance may be granted for the remaining undivided share.

Specific Relief Act, 1963 — Ss. 16(c), 20

Specific performance — Readiness and willingness — Erroneous rejection by courts below.

Where the plaintiff proves continuous extensions of the agreement, payment of consideration, and execution of partial sale deeds by co-sharers, the finding that the plaintiff lacked readiness and willingness is unsustainable. Acceptance of balance consideration by majority co-owners and conduct consistent with performance negate the plea of lack of readiness and willingness.
(Paras 34, 38–39)

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Limitation Act, 1963 — Art. 54

Commencement of limitation — Subsequent ratification — Fresh cause of action.

Where the defendant executes a subsequent affidavit expressly ratifying the agreement and acts of the power-of-attorney holder, limitation commences from the date of such ratification. Suit instituted within three years from the date of the ratifying affidavit is within limitation.
(Paras 35–37)

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Power of Attorney — Ratification — Legal effect

Unregistered power of attorney — Subsequent affidavit ratifying acts — Binding effect.

An affidavit executed by the principal expressly ratifying acts performed by the power-of-attorney holder and conveying no-objection to transfer of property operates as valid ratification, rendering such acts binding, notwithstanding earlier disputes regarding authority or registration of the power of attorney.
(Paras 35–37)

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Evidence — Adverse inference

Party not entering witness box — Effect.

Where execution of a crucial affidavit is admitted and the defendant does not enter the witness box to disown or explain the same, reliance on testimony of an attorney holder alone is insufficient to discredit such document.
(Paras 22, 35)

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Specific performance — Co-sharers’ property — Partial execution

Decree for remaining undivided share — Permissible.

Where co-sharers have already conveyed their respective shares and refusal by one co-sharer is found unjustified, the plaintiff is entitled to specific performance to the extent of the remaining undivided share, subject to payment of balance consideration with interest.
(Paras 38–41)

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Equitable considerations — Conduct of parties

Refusal despite fair offer — Relevant factor.

Conduct of the defendant in refusing reasonable monetary settlement, despite knowledge that denial would frustrate lawful functioning of an educational institution, is a relevant factor while balancing equities in granting specific performance.
(Paras 31–32)

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Kerala Education Rules — School land requirement

Minimum land extent — Consequence of refusal to convey share.

Where refusal to convey a fractional share would reduce school land below the statutory minimum prescribed for a higher secondary school, courts may take note of such statutory consequence while granting equitable relief.
(Paras 16, 29–31, 51)

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Writ proceedings — Interim management order — Effect of decree

Subsequent decree of specific performance — Interim arrangement rendered redundant.

Once specific performance is granted resulting in availability of entire required land extent, interim orders vesting school management with authorities during pendency of dispute cease to have justification and are liable to be set aside.
(Paras 51–53)

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ANALYSIS (Issue-wise with Paragraph References)

I. Readiness and Willingness (Paras 34, 38–39)

The Supreme Court found that the High Court and trial court erred in holding against the plaintiff on readiness and willingness. Multiple extensions of the agreement, acceptance of consideration, and execution of sale deed by eight co-sharers conclusively demonstrated the plaintiff’s intent and capacity to perform.

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II. Limitation under Article 54 (Paras 35–37)

The crucial ratifying affidavit dated 30.04.2013 constituted a fresh acknowledgment and consent to transfer. The Court held that limitation began from this date, not from earlier extensions, rendering the suit filed in 2013 within time.

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III. Effect of Ratification by Affidavit (Paras 35–37)

The affidavit expressly ratified all acts of the power-of-attorney holder and conveyed no objection to transfer of ownership and management. This ratification cured any alleged defect in authority and bound the defendant.

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IV. Adverse Inference from Non-Examination (Paras 22, 35)

The defendant did not step into the witness box to deny or explain the affidavit. The Court treated this omission as significant, holding that reliance solely on testimony of her son could not displace the admitted document.

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V. Grant of Specific Performance for 1/11th Share (Paras 38–41)

Given that 10/11th share already stood conveyed and refusal by the defendant was unjustified, the Court granted specific performance for the remaining 1/11th share, directing determination of balance consideration with 9% simple interest.

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VI. Impact on Connected Writ Appeal (Paras 51–53)

With specific performance granted, the statutory land requirement under the Kerala Education Rules stood satisfied. Consequently, interim orders placing school management with the District Education Officer were rendered unnecessary and set aside.

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RATIO DECIDENDI

Where a co-sharer expressly ratifies an agreement to sell and the acts of a power-of-attorney holder by a subsequent affidavit, limitation under Article 54 of the Limitation Act commences from the date of such ratification, and refusal thereafter is unjustified; in such circumstances, denial of specific performance on grounds of limitation or lack of readiness and willingness is unsustainable, and specific performance may be granted for the remaining undivided share.

Admission to or completion of a professional training course does not confer a vested or enforceable right to appointment; the doctrine of legitimate expectation cannot be invoked where policy and circumstances have materially changed, no promise of appointment exists, and recruitment is governed by statutory rules requiring selection through a prescribed authority.

Service Law — Appointment — Training course — No automatic right

Admission to training course — Whether confers right to appointment — Held, no.

Mere admission to and completion of Ayurvedic Nursing Training Course does not confer any vested or enforceable right to appointment as Ayurvedic Staff Nurse. In absence of a specific promise or statutory rule guaranteeing appointment, candidates can only claim consideration in accordance with prevailing recruitment rules and selection procedure.
(Paras 19–21, 27–28)

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Doctrine of legitimate expectation — Limits

Change in policy — Expansion of training institutions — Legitimate expectation not attracted.

The doctrine of legitimate expectation cannot be invoked where there is a substantial change in policy and factual circumstances. Past practice of appointing all trained candidates, followed when only one government institution with limited intake existed, cannot create a legitimate expectation once private institutions were permitted and the number of trained candidates increased manifold.
(Paras 21–22, 25–27)

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Article 14 — Equality — Discrimination

Negative equality — No parity with past appointments — No violation.

Absence of appointment of any similarly situated candidate from the same or subsequent batches negates the plea of discrimination. Appointments granted earlier pursuant to court orders or under a different policy regime cannot be relied upon to claim parity or enforce appointment under Article 14.
(Paras 22, 26–27)

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Recruitment — Statutory rules — Selection through commission

Change in selection authority — Valid and binding.

Where statutory service rules were subsequently framed and the recruitment process was brought within the purview of the Uttar Pradesh Subordinate Services Selection Commission, appointments could only be made in accordance with the new rules and selection mechanism. Courts cannot direct appointment dehors the rules.
(Paras 10–11, 18, 22, 27–28)

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Bond condition in training advertisement

Conditional obligation — Appointment-dependent — No promise of employment.

A bond stipulating compulsory service for five years “in case of appointment” does not amount to an assurance of appointment. The obligation arises only upon selection and appointment and does not create a right to be appointed.
(Paras 4.1, 19)

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ANALYSIS (Issue-wise with Paragraph References)

I. Core Issue — Whether training guarantees appointment (Paras 19–21)

The Court squarely addresses the claim that admission to the Ayurvedic Nursing Training Course entitles candidates to appointment. Examining Clause 9 of the admission advertisement, the Court holds that appointment was never promised. The bond requirement operated only upon selection and appointment and did not create any enforceable right.

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II. Change in policy and factual matrix (Paras 18, 21–22)

Originally, only one government institution with 20 seats conducted the course, and vacancies were sufficient to absorb pass-outs. This situation fundamentally changed after private institutions were permitted to impart training pursuant to the notification dated 21.10.2011. The number of trained candidates increased exponentially, rendering automatic appointments impracticable and discriminatory.

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III. Legitimate expectation — Inapplicability (Paras 25–27)

Relying on the Constitution Bench exposition, the Court reiterates that legitimate expectation is not a legal right. The respondents failed both tests:
(i) legitimacy of expectation, and
(ii) violation of Article 14.
Past practice was context-specific and ceased once policy and circumstances changed. No assurance of appointment existed in the advertisement or in law.

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IV. Article 14 — No discrimination established (Paras 22, 26–27)

The Court notes that no candidate admitted after the 2010-11 session was appointed under the old system, except pursuant to court orders. The respondents could not identify any similarly situated person from their batch or later batches who received direct appointment, defeating the plea of unequal treatment.

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V. Recruitment through statutory rules and commission (Paras 10–11, 22, 27)

The Court emphasizes that after revision of pay scales and framing of the Uttar Pradesh Ayush Department (Ayurved) Nursing Service Rules, 2021, recruitment fell within the purview of the UPSSSC. Appointments could only be made through the prescribed statutory process, and courts cannot bypass such mechanism.

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VI. High Court error (Paras 28)

The High Court erred in directing consideration of the respondents for appointment based on legitimate expectation, ignoring the changed policy, absence of promise, and binding statutory recruitment framework. The direction was therefore unsustainable.

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RATIO DECIDENDI

Admission to or completion of a professional training course does not confer a vested or enforceable right to appointment; the doctrine of legitimate expectation cannot be invoked where policy and circumstances have materially changed, no promise of appointment exists, and recruitment is governed by statutory rules requiring selection through a prescribed authority.

Arbitration and Conciliation Act, 1996 — Ss. 5, 34, 37 Scope of judicial interference — Appellate jurisdiction under S. 37 — Held, no wider than S. 34 — Reappreciation of evidence and re-interpretation of contract impermissible. The jurisdiction of the Appellate Court under Section 37 of the Act is strictly circumscribed and is co-extensive with, and not wider than, the jurisdiction under Section 34. Where an arbitral award has been upheld under Section 34, the Appellate Court cannot interfere merely by adopting a different interpretation of contractual clauses or by reassessing the merits of the claim. (Paras 22, 30–37, 38–40, 50–52)

Arbitration and Conciliation Act, 1996 — Ss. 5, 34, 37

Scope of judicial interference — Appellate jurisdiction under S. 37 — Held, no wider than S. 34 — Reappreciation of evidence and re-interpretation of contract impermissible.

The jurisdiction of the Appellate Court under Section 37 of the Act is strictly circumscribed and is co-extensive with, and not wider than, the jurisdiction under Section 34. Where an arbitral award has been upheld under Section 34, the Appellate Court cannot interfere merely by adopting a different interpretation of contractual clauses or by reassessing the merits of the claim.
(Paras 22, 30–37, 38–40, 50–52)

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Arbitral award — Interpretation of contract — Finality

Construction of contractual clauses is within exclusive domain of arbitral tribunal — Courts cannot substitute their own interpretation.

If the Arbitral Tribunal has taken a plausible and reasonable view in interpreting the terms of the contract, and such interpretation has been accepted by the court under Section 34, the same cannot be substituted or varied by the Appellate Court under Section 37 merely because another view is possible.
(Paras 20, 29–31, 38–40, 46–48)

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Idle time compensation — Dredging contract — Backhoe Dredger (BHD)

Claim for idle charges — Not confined to “major dredgers” — Conjoint reading of contractual clauses.

Clause 38 of the Licence Agreement, though referring to idle time charges for major dredgers, does not prohibit payment of idle time compensation for other equipment. On a conjoint reading of Clauses 38, 41.1, 41.2 and 51.1, idle time compensation is admissible for equipment including a Backhoe Dredger, where idling results from failure to provide timely access to site or interruptions contemplated under the contract.
(Paras 42–46, 49)

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Patent illegality — Public policy — Ss. 34 & 37

Speaking award — No patent illegality — Interference unwarranted.

Where the arbitral award is a reasoned award, supported by interpretation of contractual clauses and evidence, and does not violate any substantive provision of law, fundamental policy of Indian law, or basic notions of morality or justice, it cannot be interfered with under Sections 34 or 37 of the Act.
(Paras 27–29, 41, 47–48)

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Arbitration jurisprudence — Minimal court intervention

Object of Act reaffirmed — Excessive appellate scrutiny defeats arbitration.

The Arbitration and Conciliation Act, 1996 is a special enactment aimed at expeditious resolution of commercial disputes with minimal judicial intervention. Multi-tiered scrutiny of arbitral awards on merits frustrates the legislative intent and must be eschewed.
(Paras 24–26, 51)

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ANALYSIS (Issue-wise with Paragraph References)

I. Core Issue: Limits of Section 37 Jurisdiction (Paras 22, 30–37)

The Supreme Court identifies the decisive question as whether the Division Bench was justified in interfering under Section 37 after the arbitral award had already been upheld under Section 34. Relying on a consistent line of precedent, the Court reiterates that Section 37 does not confer ordinary appellate powers and does not permit re-examination of the merits of the arbitral award.

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II. Finality of Arbitral Interpretation (Paras 29–31, 38–40)

The Arbitral Tribunal had interpreted the Licence Agreement and concluded that idle time compensation for the Backhoe Dredger was contractually permissible. This interpretation was accepted by the Single Judge under Section 34. The Supreme Court holds that once such acceptance occurs, the Appellate Court is bound by that interpretation and cannot substitute its own.

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III. Patent Illegality and Public Policy Threshold (Paras 27–29, 41)

The Court clarifies that the respondent’s challenge was not founded on any recognised ground under Section 34, such as patent illegality or violation of public policy. The award was reasoned, speaking, and based on contractual construction. Hence, interference was legally impermissible.

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IV. Contractual Clauses on Idle Time Compensation (Paras 42–46)

A detailed conjoint reading of Clauses 38, 41.1, 41.2 and 51.1 demonstrates that:

• Clause 38 does not exclude idle time compensation for non-major dredgers;

• Clauses 41.1 and 41.2 contemplate consequences of failure to give possession;

• Clause 51.1 expressly provides for idle time compensation due to interruptions.
  The Tribunal’s conclusion was therefore a plausible contractual interpretation.

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V. Ancillary Issues — Minor vs. Major Dredger (Para 49)

The Court holds that the debate on whether the Backhoe Dredger was a major or minor dredger is ultimately irrelevant, as the Licence Agreement permitted deployment of such equipment and did not bar compensation for its idling.

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VI. Error of the Division Bench (Paras 38, 50–52)

The Division Bench exceeded its jurisdiction by re-interpreting contractual clauses and disturbing a concurrent finding of the Arbitral Tribunal and the Single Judge. This amounted to an impermissible appellate reassessment of merits.

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RATIO DECIDENDI

An Appellate Court exercising jurisdiction under Section 37 of the Arbitration and Conciliation Act, 1996 cannot interfere with an arbitral award that has been upheld under Section 34 by re-appreciating evidence or re-interpreting contractual terms; where the arbitral tribunal has adopted a plausible interpretation and the award is not vitiated by patent illegality or public policy violation, judicial interference is impermissible.