NORTH EASTERN RAILWAY Vs TRIPPLE ENGINEERING WORK
Bench: RANJAN GOGOI,M.Y. EQBAL
Case number: C.A. No.-006275-006275 / 2014
Diary number: 2863 / 2013
Advocates: SHREEKANT N. TERDAL Vs
MERUSAGAR SAMANTARAY
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6275 OF 2014
(Arising out of SLP (C) No. 20427 OF 2013)
NORTH EASTERN RAILWAY & ORS. ... APPELLANT (S)
VERSUS
TRIPPLE ENGINEERING WORKS ... RESPONDENT (S)
J U D G M E N T
RANJAN GOGOI, J.
1. The challenge in this appeal is to order dated
27.06.2012 of the Patna High Court by which a former Chief
Justice of the Sikkim High Court had been appointed as the
arbitrator to resolve the disputes and differences between
the parties to the present proceedings arising out of two
contracts bearing No. CAO/CON/722 dated 01.11.1993 and
CAO/CON/738 dated 28.04.1994.
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2. Both the contracts awarded to the respondent-
contractor were terminated on 7.11.1994. Admittedly, the
General Conditions of Contract of the Railways, which
included an arbitration clause, governed the parties. After
the termination of the two contracts the respondent-
contractor approached the Patna High Court by means of a
writ petition challenging the terminations. The writ petition
was dismissed, which dismissal was challenged before this
Court in SLP(C) No. 17189/1995. The said special leave
petition was also dismissed leaving parties to resolve the
differences in an appropriate proceeding i.e. a civil suit or by
reference to arbitration, as the case may be.
3. Though a panel of arbitrators as per Clauses 64(3)(a)(ii)
and (iii) of the General Conditions of Contract was appointed
as far back as in the year 1996, till date the award(s) in
respect of the disputes arising out of either of the two
contracts is yet to be passed. According to the appellant-
railways, the proceedings of arbitration has been completed
in respect of the disputes arising out of Contract No.
CAO/CON/722 dated 01.11.1993. Even if the said statement
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of the appellant-railways is to be accepted, though no
material has been laid in support thereof, what cannot be
denied is the fact that till date the award is yet to be passed.
Admittedly, the arbitration in respect of the contract No.
CAO/CON/738 dated 28.04.1994 has not even commenced.
This is on account of the fact that in the year 2002 the North
Eastern Railway, which had entered into the contracts with
the respondent-contractor, was bifurcated into North Eastern
Railway and East Central Railway. As the jurisdiction in
respect of the aforesaid contract No. CAO/CON/738 was to
be exercised by the East Central Railway it appears that the
appellant has disclaimed all responsibility with regard to
holding of arbitration proceedings in respect of the said
contract and at the same time the East Central Railway has
not responded in any positive manner to the several
demands for arbitration lodged by the contractor.
Insofar as contract No. CAO/CON/722 is concerned,
naturally, both the parties have tried to lay the blame for the
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delay in the process of arbitration on each other and the
huge number of correspondence exchanged in this regard
and the frequent change of the arbitration panel on account
of exigencies of service of the panel members (retirement,
transfer etc.) has made it impossible to pinpoint the
responsibility in this regard on any one of the contracting
parties. But what is glaring is the fact that though the
arbitration proceedings in respect of the said contract No.
CAO/CON/722 had commenced as far back as in the year
1996 the award is yet to see the light of the day
notwithstanding the assertions made by the Union that the
proceedings have been completed though as already noted,
no clinching material in this regard has been brought on
record; not to speak about the award of the arbitrators
though such an award would have been the natural
consequence of the completion of arbitration proceedings. It
is in the totality of these facts that the High Court had
thought it proper to travel beyond the framework of Clauses
64(3)(a)(ii) and (iii) of the General Conditions of Contract and
appoint a retired Chief Justice as the arbitrator.
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4. The correctness of the said decision necessarily has to
be judged in the light of the facts and circumstances
enumerated above. The necessary legal discourse that
would be required to be gone into to answer the question as
posed above could begin by extracting the provisions of
Clauses 64(3)(a)(ii) and (iii) of the General Conditions of
Contract.
“64(3)(a)(ii) In cases not covered by clause 64(3)(a)(i), the Arbitral Tribunal shall consist of a panel of three Gazette Rly. Officers not below JA grade, as the arbitrators. For this purpose, the Railway will send a panel of more than 3 names of Gazetted Rly. Officers of one or more departments, of the Rly. to the contractor who will be asked to suggest to General Manager up to 2 names out of panel for appointment as contractor’s nominee. The General Manager shall appoint at least one out of them as the contractor’s nominee and will, also simultaneously appoint the balance number of arbitrators either from the panel or from outside the panel, duly indicating the ‘presiding arbitrator from amongst the 3 arbitrators so appointed. While nominating the arbitrators it will be necessary to ensure that one of them is from the Accounts department. An officer of Selection Grade of the Accounts department shall be considered of equal status to the officers in SA grade of departments of the Railways for the purpose of appointment of arbitrators.
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64(3)(a)(iii) – If one or more of the arbitrators appointed as above refuses to act as arbitrator, withdraws from his office as arbitrator, or vacates his/their office/offices or is/are unable or unwilling to perform his functions as arbitrator for any reason whatsoever or dies or in the opinion of the General Manager fails to act without undue delay, the General Manager shall appoint new arbitrator/arbitrators to act in his/their place in the same manner in which the earlier arbitrator/arbitrators had been appointed. Such re-constituted Tribunal may, at its discretion, proceed with the reference from the stage at which it was left by the previous arbitrator(s)”.
From the provisions of the General Conditions of
Contract it is clear that the panel of arbitrators as per the
agreement between the parties necessarily has to be
Gazetted Railway Officers; any vacancy in the panel of
arbitrators has to be filled up in the same manner in which
the initial panel is required to be constituted.
5. The “classical notion” that the High Court while
exercising its power under Section 11 of the Arbitration &
Conciliation Act, 1996 (hereinafter for short ‘the Act’) must
appoint the arbitrator as per the contract between the
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parties saw a significant erosion in Ace Pipeline Contracts
(P) Ltd. Vs. Bharat Petroleum Corporation Ltd.1 wherein
this Court had taken the view that though the contract
between the parties must be adhered to, deviations
therefrom in exceptional circumstances would be
permissible. A more significant development had come in a
decision that followed soon thereafter in Union of India Vs.
Bharat Battery Manufacturing Co. (P) Ltd.2 wherein
following a three Judges Bench decision in Punj Lloyd Ltd.
Vs. Petronet MHB Ltd.3 it was held that once an aggrieved
party files an application under Section 11(6) of the Act to
the High Court, the opposite party would lose its right of
appointment of the arbitrator(s) as per the terms of the
contract. The implication that the Court would be free to
deviate from the terms of the contract is obvious. The
apparent dichotomy in ACE Pipeline (supra) and Bharat
Battery Manufacturing Co. (P) Ltd. (supra) was
reconciled by a three Judges Bench of this Court in
Northern Railway Administration, Ministry of Railway, 1 (2007) 5 SCC 304 2 (2007) 7 SCC 684 3 (2006) 2 SCC 638
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New Delhi Vs. Patel Engineering Company Limited4
where the jurisdiction of the High Court under Section 11(6)
of the Act was sought to be emphasized by taking into
account the expression “to take the necessary measure”
appearing in sub-section (6) of Section 11 and by further
laying down that the said expression has to be read
alongwith the requirement of sub-section (8) of Section 11 of
the Act. The position was further clarified in Indian Oil
Corporation Limited and Others Vs. Raja Transport
Private Limited5. Paragraph 48 of the report wherein the
scope of Section 11 of the Act was summarized may be
quoted by reproducing sub-paragraphs (vi) and (vii) herein
below.
“(vi) The Chief Justice or his designate while exercising power under sub-section (6) of Section 11 shall endeavour to give effect to the appointment procedure prescribed in the arbitration clause
(vii) If circumstances exist, giving rise to justifiable doubts as to the independence and impartiality of the person nominated, or if other circumstances warrant appointment of an independent arbitrator by ignoring the
4 (2008) 10 SCC 240 5 (2009) 8 SCC 520
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procedure prescribed, the Chief Justice or his designate may, for reasons to be recorded ignore the designated arbitrator and appoint someone else.”
6. The above discussion will not be complete without
reference to the view of this Court expressed in Union of
India Vs. Singh Builders Syndicate6 wherein the
appointment of a retired Judge contrary to the agreement
requiring appointment of specified officers was held to be
valid on the ground that the arbitration proceedings had not
concluded for over a decade making a mockery of the
process. In fact, in paragraph 25 of the report in Singh
Builders Syndicate (supra) this Court had suggested that
the government, statutory authorities and government
companies should consider phasing out arbitration clauses
providing for appointment of serving officers and encourage
professionalism in arbitration.
7. A pronouncement of late in Deep Trading Company
Vs. Indian Oil Corporation and Others7 followed the legal
6 (2009) 4 SCC 523 7 (2013) 4 SCC 35
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position laid down in Punj Lloyd Ltd. (supra) which in turn
had followed a two Judges Bench decision in Datar
Switchgears Ltd. Vs. Tata Finance Ltd.8. The theory of
forfeiture of the rights of a party under the agreement to
appoint its arbitrator once the proceedings under Section
11(6) of the Act had commenced came to be even more
formally embedded in Deep Trading Company (supra)
subject, of course, to the provisions of Section 11(8), which
provision in any event, had been held in Northern Railway
Administration (supra) not to be mandatory, but only
embodying a requirement of keeping the same in view at the
time of exercise of jurisdiction under Section 11(6) of the
Act.
8. In the present case Clauses 64(3)(a)(ii) and (iii) of the
General Conditions of Contract do not prescribe any specific
qualification of the arbitrators that are to be appointed under
the agreement except that they should be railway officers.
As already noticed, even if the arbitration agreement was to
specifically provide for any particular qualification(s) of an
8 (2000) 8 SCC 151
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arbitrator the same would not denude the power of the Court
acting under Section 11(6), in an appropriate case to depart
therefrom. In Singh Builders Syndicate (supra) pendency
of arbitration proceedings for over a decade was found by
this Court to be a mockery of the process. In the present
case, admittedly the award in respect of disputes and
differences arising out of the contract No. CAO/CON/722 is
yet to be passed. Though the appellant-Railway has in its
pleadings made a feeble attempt to contend that the
process of arbitration arising out of the said Contract has
been finalized, no material, whatsoever, has been laid before
the Court in support thereof. The arbitration proceedings to
resolve the disputes and differences arising out of Contract
No. CAO/CON/738 has not even commenced. A period of
nearly two decades has elapsed since the contractor had
raised his claims for alleged wrongful termination of the two
contracts. The situation is distressing and to say the least
disturbing. The power of the Court under the Act has to be
exercised to effectuate the remedy provided thereunder and
to facilitate the mechanism contemplated therein. In a
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situation where the procedure and process under the Act has
been rendered futile, the power of the Court to depart from
the agreed terms of appointment of arbitrators must be
acknowledged in the light of the several decisions noticed by
us. We are, therefore, of the view that no infirmity
muchless any illegality or failure of justice can be said to be
occasioned by the order passed by the High Court so as to
warrant any interference. We, therefore, unhesitatingly
dismiss this appeal filed by the appellant-railways. However,
in the facts of the case we do not deem it appropriate to
burden the appellant with any costs.
…....…………………………J. [RANJAN GOGOI]
.…....…………………………J. [M. Y. EQBAL]
NEW DELHI, AUGUST 13, 2014.
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