Sarat Chandra Mohapatra, J. - (1.) SIX disputes were referred to an arbitrator. Arbitrator not having given awards in respect of these disputes referred to him within the time stipulated, six applications were filed in court by the respondents for appointment of an arbitrator to enter into reference and make awards, alleging that arbitrator is guilty of misconduct and has also become functus officio after expiry of the period. Appellant filed six applications for extension of time to enable arbitrator to give the awards. 12 applications were heard together and impugned composite order has been passed appointing an arbitrator which has the effect of removal of the arbitrator appointed. This is grievance of the appellant. Against the impugned order in respect of one of the application of respondent F.A.F.O. No. 217 of 1994 was filed by appellant which came up for admission earlier. Finding that in case we direct issue of notice to respondent, the proceeding before arbitrator may be delayed we disposed of the appeal disapproving appointment of arbitrator and directed Trial Court in that case to give opportunity to the parties to file panel of names whereafter to consider the appointment of an arbitrator. We gave liberty to respondents to move this Court for recalling of the order in case if feels aggrieved and is prejudiced.
(2.) WHEN these appeals came up for admission, respondent No. 1 has entered caveat. In such circumstances with the consent of the parties, we have heard the appeals finally. No appeal having been filed against removal of the arbitrator on ground of misconduct on account of delay in making an award his removal stands confirmed and Court gets jurisdiction to appoint an arbitrator. We may, however, state that order of refusal to extend time was vulnerable inasmuch as Court did not keep in mind that it has power to extend time even after award is passed where parties are not prejudiced and took part in the proceeding even after expiry of the period allowed to the arbitrator. In the present case, respondent No. 1 tolerated the expiry of time and even prayed for adjournments even after expiry of the period fixed till it filed application in Court for appointment of another arbitrator. Be that as it may, removal of arbitrator has become final.
(3.) ONCE arbitrator is removed by Court, power is vested on it to appoint another arbitrator. Learned counsel for the appellant has brought to our notice the clause of arbitration agreement, where it is said, that if for any reason arbitrator does not give the award, the matter is not to be referred to arbitration at all. Relevant portion of clause 2900 of the agreement reads as follows: - - 2900, ARBITRATION. (a) In the event of any questions, dispute or difference arising under these conditions or any special conditions of contract, or in connection with this contract (except as to any matters the decision of which is specially provided for by these or the special conditions) the same shall be referred to the sole arbitration of a person, appointed to be the arbitrator, by the General Manager in the case of contracts entered into by the Zonal Railways and Production Units; by any Member of the Railway Board, in the case of contracts entered into by the Railway Board; and by the Head of the Organisation in respect of contracts entered into by the other organisations under the Ministry of Railways. If, however, the arbitrator is a railway servant, he will not be one of those who had an opportunity to deal with the matters to which the contract relates or who in the course of their duties as railway servants have expressed views on all or any of the matters under dispute or difference. The award of the arbitrator shall be final and binding on the parties to this contract. (b) In the event of the arbitrator dying, neglecting or refusing to act or resigning or being unable to act for any reason, or his award being set aside by the Court for any reason, it shall be lawful for the authority appointing the arbitrator to appoint another arbitrator in place of the outgoing arbitrator in the manner aforesaid. (c) It is further a term of this contract that no person other than the person appointed by the authority as aforesaid should act as arbitrator and that if for any reason that is not possible, the matter is not to be referred to arbitration at all. (d) (e) (f) (g) (h)...to...(r)....;