- (1.) The present C.M.P has been filed on behalf of M/s Bharat Coking Coal Limited and its officers seeking modification/clarification in the relevant paragraphs of the judgment dated 17.07.2018 passed by this Court in W.P.(C) No. 3142/2018 wherein it has been recorded that the dispute in question is to be settled through means of arbitration.
(2.) Mr. A. K. Mehta, learned counsel appearing on behalf of the petitioners [the respondents in W.P.(C) No. 3142/2018], refers to Paragraph 4 of the judgment dated 17.07.2018 passed by this Court in W.P.(C) No. 3142/2018 and submits that the said paragraph contains the submission made on behalf of the respondents of the aforesaid writ petition. In the 4th line of the said paragraph, it has been recorded that an alternative mode of settlement has been provided through means of arbitration. In fact, none of the clauses of the Conditions of Contract contains an alternative mode of settlement through arbitration. Learned counsel for the petitioners further refers to Paragraph 7 of the judgment dated 17.07.2018 passed by this Court in W.P.(C) No. 3142/2018 and submits that the said paragraph is the operative part of the said judgment wherein in the last sentence, it has inadvertently been observed by this Court that so far as the challenge to the legality of the impugned notices is concerned, the said ground can also be agitated before the arbitrator.
(3.) On perusal of the relevant clauses of the Conditions of Contract, it appears that only two clauses speak of the settlement of the dispute between the contractor and the department. Clause-10 provides for carrying out the part work at the risk and cost of the contractor. Clause-10.1 provides that if the progress of the work or of any portion of the work is unsatisfactory, the Engineer-in-Charge, after giving the contractor 15 days' notice in writing, without cancelling or terminating the contract, shall be entitled to employ another Agency for executing the job or to carry out the work departmentally or contractually through tendering/limited tendering process, either wholly or partly, debiting the contractor with cost involved in engaging another Agency or with the cost of labour and the prices of materials, as the case may be. Another relevant clause is Clause-14 which provides for settlement of disputes between the contractor and the department at two different stages. The said clause would suggest that the dispute is first to be settled with the contractor departmentally and if differences still persist, the settlement of the dispute shall be resolved in the following manner: Disputes relating to the commercial contacts with Central Public Sector Enterprises/Govt. Departments (except Railways, Income Tax, Custom & excise duties) / State Public Sector Enterprises shall be referred by either party for Arbitration to the PMA (Permanent Machinery of Arbitration) in the Department of Public Enterprises. In case of the parties other than the Government Agencies, the redressal of the dispute is to be sought in the Court of law. It is thus submitted by learned counsel for the petitioner that none of the clauses of the Conditions of Contract mentions about redressal of the dispute through means of arbitration, except in the cases of commercial contracts with Central Public Sector Enterprises/certain Government Departments/State Public Sector Enterprises and as such the relevant paragraphs of the judgment dated 17.07.2018 passed by this Court in W.P.(C) No. 3142/2018 may accordingly be modified.;