Jaya Kar vs Union Of India, Service Through The G.M., South Eastern Railway

The applicant in this application is a retired member of the West Bengal Higher Judicial Service.

By an ex parte order dated July 31, 2017 passed in an application under Section 11 of the Arbitration & Conciliation Act, 1996, as amended by Act 3 of 2016 (in short, "the Act of 1996") a learned Single Judge of this Court appointed the applicant as the arbitrator to adjudicate the disputes between the petitioner in the said application and the respondent Railway herein. Subsequently, in an application, GA No.520 of 2018 filed by the respondent Railway the said order dated July 31, 2017 was recalled and the appointment of the applicant as the arbitrator was set aside.

In the disposed of application, AP No.551 of 2017 the applicant has filed the present application seeking for a direction upon the respondent Railway to pay the fees payable by them on account of the arbitral sittings held by him before April 30, 2018.

It is contended by the applicant that although by the order dated April 30, 2018 her appointment as the arbitrator was set aside but since the claimant has paid her share of fees to the applicant, the respondent Railway is also bound to make payment of their share of fees of the arbitrator for the arbitral sittings held before passing of the said order dated July 31, 2017.

A copy of this application has been served upon the respondent Railway. Ms. Chakraborty, learned counsel appearing for the respondent Railway raised strong objection to the maintainability of this application on two counts. In the first place, it is contended by the Railway that the present application filed in a disposed of application, AP No.551 of 2017 is not maintainable. Secondly, there is no provision in the Act of 1996 to entitle the applicant arbitrator to file this application.

While responding to the above contentions raised by the respondent Railway, learned advocate for the applicant admitted that there is no provision in the Act of 1996 enabling an arbitrator to the file this application. He, however, submitted that inasmuch as the order appointing the applicant as the arbitrator was recalled and/or set aside, there is no scope for the applicant to complete the arbitral proceeding and consequently, the remedy of an arbitrator under Section 39 of the Act of 1996 to exercise a lien over the arbitral award cannot be availed of by the applicant in the present case. It was contended that since the applicant was appointed as the arbitrator the Court should ensure payment of her fees by the respondent Railway for the arbitral sittings she had already held before passing of the said order dated July 31, 2017. Learned advocate for the applicant further submitted that in the facts of this case, the applicant has filed the present application in a disposed of application under Section 11 of the Act of 1996.

I have considered the facts of the case and contentions raised by learned counsel appearing for the applicant, as well as the respondent Railway. In the present case, the applicant has not been able to substantiate any ground to maintain this application in the disposed of application under Section 11 of the Act of 1996. Secondly, when the order of appointment of the applicant as the arbitrator was recalled and/or set aside by the said order dated July 31, 2017 and learned advocate appearing for the applicant could not refer to any provision of law entitling the applicant to obtain any relief as she has sought.

For the reasons as aforesaid, I find that this application filed by the applicant is not maintainable and the same stands rejected.

There shall, however, be no order as to costs.