Case: North Eastern Railway &amp; Others Vs. Tripple Engineering Works

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.

Reasoning: 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 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 contractorInsofar as contract No. CAO/CON/722 is concerned, naturally, both the parties have tried to lay the blame for the 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 arbitrator8. 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 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 commencedA 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 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.