- (1.) In this application under Section 11(6) of the Arbitration and Conciliation Act , 1996, as amended by Act 3 of 2016(in short "the Act of 1996"), the petitioner has prayed for appointment of an independent arbitrator to adjudicate the disputes between the parties relating to the Letter of Acceptance dated December 8, 2015 (hereinafter referred to as "the said Letter of Acceptance") for construction of five bridges in Chakradharpur Division of the respondent South Eastern Railway. The parties admit that the terms and conditions governing the execution of the said five bridges were those mentioned in the General Conditions of Contract of the respondent South Eastern Railway issued in the month of July, 2014 (hereinafter referred to as "the said General Conditions of Contract"). Clauses 64(3)(a)(i) and 64(3)(a)(ii) of the said General Conditions of Contract reproduced below: "64(3)(a)(i): In cases where the total value of all claims in question added together does not exceed Rs. 25,00,000/- (Rupees twenty five lakh only), the Arbitral Tribunal shall consist of a Sole Arbitrator who shall be a Gazetted Officer of Railway not below JA Grade, nominated by the General Manager. The sole arbitrator shall be appointed within 60 days from the day when a written and valid demand for arbitration is received by GM. 64(3)(a)(ii): In cases not covered by the Clause 64(3)(a)(i), the Arbitral Tribunal shall consist of a panel of three Gazetted Railway Officer not below JA Grade or 2 Railway Gazetted Officers not below JA Grade and a retired Railway Officer, retired not below the rank of SAG Officer, as the arbitrators. For this purpose, the Railway will send a panel of more than 3 names of Gazetted Railway Officers of one or more departments of the Railway which may also include the name(s) of retired Railway Officer(s) empanelled to work as Railway Arbitrator to the contractor within 60 days from the day when a written and valid demand for arbitration is received by the GM. Contractor will be asked to suggest to General Manager at least 2 names out of the panel for appointment as contractor's nominee within 30 days from the date of dispatch of the request by Railway. The General Manager shall appoint at least one out of them as the contractor's nominee and will, also simultaneously appoint the balance number of arbitrators either from the panel or from outside the panel, duly indicating the 'presiding officer' from amongst the 3 arbitrators so appointed. GM shall complete the exercise of appointing the Arbitral Tribunal within 30 days from the receipt of the names of contractor's nominees. While nominating the arbitrators, it will be necessary to ensure that one of them is from the Accounts Department. An officer of Selection Grade of the Accounts Department shall be considered of equal status to the officers in SA grade of other departments of the Railway for the purpose of appointment of arbitrator. "
(2.) According to the petitioner, the disputes and differences have arisen between the parties relating to the said Letter of Acceptance. Thus, by a notice dated February 27, 2018 issued under section 21 of the Act of 1996 the petitioner not only informed the General Manager of the respondent Railway of the particulars of its claims and invoked the arbitration clause. By a letter dated March 23, 2018 the General Manager of the respondent Railway requested the Chief Accounts Officer to look into the matter and resolve the case and if the case is arbitrable the said Chief Accounts Officer was requested to furnish brief particulars of the case at the earliest along with a waiver under sections 12(5) and 31-A(5) of the Act of 1996. A copy of the said letter was also forwarded to the petitioner and by a letter dated April 16, 2018 the petitioner informed the office of the General Manager that it is not agreeable to waive the provisions of section 12(5) of the Act of 1996.
(3.) By a communication dated July 13, 2018 addressed to the petitioner, the General Manager of the respondent Railway through the Assistant Deputy General Manager forwarded the panel comprising four retired railway officers, out of which the petitioner was requested to nominate two names from which the General Manager would appoint one officer as the nominee of the petitioner in the arbitral tribunal. By a letter dated August 18, 2018, the petitioner, however, informed the Deputy General Manager of the respondent Railway that retired Railway Officers are ineligible to be appointed as the arbitrators since they bear past as well as present relationship with the Railway and, as such, they fall in the category of serial no. 1 of the Seventh Schedule to the Act of 1996 rendering them ineligible to be appointed as the arbitrator. With this assertion, the petitioner has filed this application before this Court. In spite of service of the application, none appears for the respondent Railway.;