M/. Anil Sharma vs State of Jharkhand and Others

D.N. Patel

The present interlocutory application has been preferred for modification of the order dated 14th October, 2011. passed in Arbitration Application No. 20 of 2010, whereby this Court, in exercise of powers u/s 11(5) of Arbitration and Conciliation Act. 1996, has appointed Shri D.G.R. Patnaik, retired Judge of Jharkhand High Court as arbitrator. Counsel for the applicant submitted that Shri D.G.R. Patnaik is already holding the post of Chairman, Labour Tribunal, Ranchi and therefore, he should not have been appointed as the arbitrator. Moreover, as per some guideline of the standard bidding document, especially Clause No. 24 (i) and 25.(i) for Pradhan Mantri Gram Sadak Yojna, in case of dispute the parties should approach the Dispute Redressal Forum for redressal of the dispute and therefore also order dated 14th October, 2011, passed in Arbitration Application No. 20 of 2010 needs modification.

Counsel for the respondent, who is the applicant in this interlocutory application submitted that agreement entered into between the present respondent, i.e. the State of Jharkhand and the applicant of the present arbitration application, is at Annexure 1 to the A.A.No. 20 of 2010. The Clause No. 23 of the said agreement, which is known as arbitration clause, reads as under:

Clause 23:- In case any dispute or difference shall arise between the parties or either of there upon any question relating to the meaning of the specifications, designs, drawings and instructions here before mentioned or as to the quality of workmanship or materials used on the work or as to the construction of any of the conditions or any clause or thing there in contained or as to any question, claim, rights of the parties, or any matter, or things whatsoever in any way arising out of or relating to the contract designs, drawings specifications, estimates, instruction order of these conditions or otherwise concerning the work or the execution, or failure to execute the same whether arising during the progress of work of alter the completion or abondmen thereof or as the breach of those contract then either party shall forthwith give to the order notice of such dispute or difference and such dispute or difference shall be referred to the superintending Engineer of the circle and his decision there on shall be final, conclusive and binding on the parties.

In view of the aforesaid clause, this court has rightly passed the order dated 14th October, 2011 in Arbitration Application No. 20 of 2010 appointing Hon''ble Mr. Justice D.G.R. Patnaik, a retired Judge of Jharkhand High Court, as the arbitrator and no error has been committed by this Court in passing the order for appointment of the arbitrator in exercise of powers u/s 11(6) of Arbitration and Conciliation Act, 1996.

It is further submitted by the counsel for the original applicant in the present arbitration application that the Hon''ble Retired Judge, as on the date of this order, was already functioning as the Chairman of the Industrial Tribunal and therefore, this is not a new fact at all which the State Government is stating before us.

In view of these submissions and having heard counsel for both sides, it appears that keeping in mind Annexure 1 of the arbitration application, especially Clause No. 23 thereof, as stated herein above, this court has passed the order dated 14th October, 2011. in exercise of the powers u/s sub section 6 of Section 11 of the Arbitration and Conciliation Act, 1996, appointing a retired Judge of this court as the arbitrator. The so-called guidelines, which are relied upon by counsel for the State, does not provide the reasonable ground for modification of the order dated 14th October, 2011, because those guidelines are not forming part and parcel of the agreement between the parties. Moreover, Arbitration Clause No. 23 is very clear on the said point and there is no ambiguity in the said clause. Moreover, though the original applicant requested the Government to appoint an arbitrator, they have not done so and therefore, this court has to appoint an arbitrator. The government had the option either to appoint an arbitrator or to send the matter to the Dispute Redressal Forum and as they are iethargic to pass the said order, this court had to pass an order in exercise of powers u/s 11(6) of Arbitration and Conciliation Act, 1996. Moreover, as on the date of the order passed by this court, arbitrator was already holding the post of Chairman of the Industrial Tribunal and this is not a new fact.

Keeping these facts in mind, it appears that there is no substance in this interlocutory application and as no error has been committed by this Court while passing the order dated 14th October, 2011 in Arbitration Application No. 20 of 2010. no modification is required in the said order. This Interlocutory application is, hereby, rejected.