A.P.SEN - (1.) THIS appeal by special leave is directed against an order of the Orissa High Court dated 6/11/1980 summarily dismissing a revision filed by the appellant and upholding the order of the Subordinate Judge. Cuttack dated 26/03/1980 allowing an application made by the respondent under S. 8 read with S. 20 of the ARBITRATION AND CONCILIATION ACT, 1940, by which the learned Subordinate Judge, has set aside the appointment of the Superintending Engineer. Irrigation by the Chief Engineer to be the Arbitrator and instead appointed a retired District & Sessions Judge of Cuttack as the Arbitrator.
(2.) PUT briefly, the essential facts are these. The respondent herein is a contractor and had entered into an agreement being Agreement No. I F-2 of 1970-71 with the State Government of Orissa relating to the Excavation of Satankha Distributory with its minor and sub-minor from O. M. to Tail. The respondent raised a dispute and served a notice on the Chief Engineer for the appointment of an arbitrator under Cl. 23 of the Agreement. Subsequent to the said notice he filed an application under S. 8 read with S. 20 of the Act before the Subordinate Judge Cuttack praying for the appointment of an arbitrator by the Court alleging that the Chief Engineer had not appointed an arbitrator under C1. 23 within the stipulated period of 15 days and therefore lost his power to appoint an arbitrator. The appellant entered appearance in, the proceedings and raised an objection against the maintainability of the application under, S. 8 read with S. 20 of the Act on the ground that the Chief Engineer had already appointed D. Sahu. Superintending Engineer. Irrigation to be the Arbitrator, fact of which was intimated to the respondent on 20/11/1978 and as such there was no occasion for the Court to appoint an arbitrator. On 19/12/1979, the respondent filed another application contending that the appointment of D. Sahu, Superintending Engineer. Irrigation as Arbitrator was illegal and improper and hence liable to be set aside. It was asserted by the respondent that as per Cl. 23 of the Agreement, the Chief Engineer could appoint a Superintending Engineer beonging to the State Public Works Department, and none else. The learned Subordinate Judge by the impugned order held that under Cl. 23 of the Agreement, the Chief Engineer was empowered to appoint a Superintending Engineer of Works Department who was not connected with the work, as Arbitrator and in case no such Superintending Engineer was available, the Chief Engineer had himself to enter upon the reference. He further held that D. Sahu, Superintending Engineer, Irrigation being directly subordinate to the Chief Engineer, his appointment was in violation of the terms of C1. 23 and as such his appointment as Arbitrator was invalid. The learned Subordinate Judge accordingly set aside the order of the Chief Engineer appointing D. Sahu. Superintending Engineer Irrigation to be the Arbitrator, and further held that the Chief Engineer having failed to appoint an arbitrator within 15 days of the receipt of the notice, he had no power to appoint an arbitrator, and instead directed B. S. Patnaik, retired District & Sessions Judge, Cuttack to be the Arbitrator. Dissatisfied with the decision of the learned Subordinate Judge, the appellant went up in revision before the High Court but the High Court declined to interfere saying that it found no justification for the same,
(3.) THE appeal must turn on a proper construction, of the words "Superintending Engineer, State Public Works Department unconnected with the work" appearing in Cl. 23 of the Agreement. THE question involved has now become purely academic in view of the subsequent legislation by the State Legislature inserting new S. 41A to the Act. But it is necessary to deal with the question as the decision may affect the validity of similar references by the Chief Engineer to a Superintending Engineer under Cl. 23 of the Agreement. By Cl. 23 of the Agreement, it is provided: "Clause 23-Except where otherwise provided in the contract, all questions and disputes relating to the meaning of the specifications, designs, drawings, and instructions hereinbefore mentioned, and as to the quality of workmanship, or materials used in the work, or as to any other question, claim, right, matter, or thing whatsoever, in any way arising out of, or relating to the contract, designs, drawings, specifications, estimates, instructions, orders, or these conditions or otherwise concerning the work or the execution, or failure to execute the same, whether arising during the progress of the work, or after the completion or abandonment of thereof shall be referred to the sole arbitration of a Superintending Engineer of the State Public Works Department unconnected with the work at any stage nominated by the concerned Chief Engineer. If there be no such Superintending Engineer it should be referred to the sole arbitration of the Chief Engineer concerned. It will be no objection to any such appointment that the arbitrator so appointed is a Government servant. THE award of the arbitrator so appointed shall be final, conclusive and binding on all parties to these contracts.,";