union of india (uoi) vs p.m. paul and anr. on 29 march, 1985
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Kerala High Court
Kerala High Court
Union Of India (Uoi) vs P.M. Paul And Anr. on 29 March, 1985
Equivalent citations: AIR 1985 Ker 206
Author: V S Nair
Bench: V S Nair
ORDER
V. Sivaraman Nair, J.
1. The first respondent had entered into a works contract with the petitioner, represented by the Chief
Engineer, Cochin Zone of the Military Engineering Service on 7-4-1979. Clause 70 of the Contract provided
for Arbitration, and was in the following terms :
"Arbitration -- All disputes, between the parties to the contract (other than those for which the decision of the
CWE or any other person is by the Contract expressed to be final and binding) shall, after written notice by
either party to the Contract to the other of them, be referred to the sole arbitration of an Engineer Officer to be
appointed by the authority mentioned in the tender documents.
Unless both parties agree in writing such reference shall not take place until after the completion or alleged
completion of the Works or termination or determination of the contract under Condition Nos. 55, 56 and 57
hereof.
Provided that in the event of abandonment of the Works or cancellation of the Contract under Condition Nos.
52, 53 or 54 hereof, such reference shall not take place until alternative arrangements have been finalised by
the Government to get the works completed by or through any other Contractor or Contractors or Agency or
Agencies.
If the Arbitrator so appointed resigns his appointment or vacates his office or is unable or unwilling to act due
to any reason whatsoever, the authority appointing him may appoint a new Arbitrator to act in his place.
Provided always that commencement or continuance of any arbitration proceedings hereunder or otherwise
shall not in any manner militate against the Government's right of recovery from the contractor as provided in
Condition 67 hereof.
The Arbitrator shall be deemed to have entered on the reference on the date he issues notice to both the
parties, asking them to submit to him their statement of the case and pleadings in defence.
The Arbitrator may, from time to time with the consent of the parties, enlarge the time up to but not exceeding
one year from the date of his entering on the reference, for making and publishing the award.
The Arbitrator may proceed with the arbitration ex parte, if either party, in spite of notice from the Arbitrator
fails to take part in the proceedings.
The Arbitrator shall give his award within a period of six months from the date pf his entering on the
reference or within the extended time as the case may be on all matters referred to him and shall indicate his
findings, along with sums awarded, separately on each individual item of dispute.
The venue of Arbitration shall be such place or places as may be fixed by the Arbitrator in his sole discretion.
The award of the Arbitrator shall be final and binding on both parties to the contract".
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2. Differences arose between the parl ies relat ing to the working of the contract . The f irs t
respondent-Contractor by his letter dated 13-9-1980 called upon the Engineer in Chief, Military Engineering
Services, New Delhi, who was the designated appointing authority, to appoint an Engineer Officer as sole
arbitrator, to adjudicate upon the dispute between the parties. No action appears to have taken on that letter.
But the differences continued. Shri K.C.S. Rao, Additional Chief Engineer who was the Officiating Chief
Engineer, South West Zone, Cochin, by letter dated 12-12-1981, terminated the agreement, allegedly in
exercise of the powers vested in him under condition 54 of the General Conditions of the Contract. In letter
dated 4-10-1982, the first respondent again called upon the Engineer-in-Chief to appoint an Engineer Officeras sole arbitrator to settle the dispute arising out of the non-settlement of his claims. This was reiterated in
letter dated 28-1-1983. Ultimately, in letter dated 9-6-1983, the Engineer-in-Chief of the first respondent
appointed Shri K.C.S. Rao, Chief Engineer, Pune Zone, as sole arbitrator for adjudication of the disputes. Shri
K.C.S. Rao entered upon the reference by requiring the parties to submit their statements in his
communication dated 4-7-1983. It is admitted that in that letter, Shri K.C.S. Rao referred to the fact that he
was the person who terminated the contract by letter dated 12-12-1981 while officiating as Chief Engineer,
South-West Zone.
3. On 11-7-1983, the first respondent filed Ext. P1 petition, which was numbered as O.P. (Arbitration) No. 18
of 1983 in the Sub-Court, Cochin. LA. No. 1003 of 1983 was filed by the first respondent, praying for an
injunction restraining the respondents therein, viz. the present petitioner and Shri K.C.S. Rao, from taking anysteps pursuant to the appointment of Shri K.C.S. Rao as the sole arbitrator. Petitioner, thereafter, entered
appearance, and filed LA. No. 1114 of 1983 for an order of stay of the proceedings under Section 34 of the
Arbitration Act. That application w as dismissed by order dated 26-9-1983. Petitioner filed his
counter-affidavit, Ext. P3, dated 18-11-1983. It was stated in paragraph 7 thereof, that Shri K.C.S. Rao, who
had terminated the contract by letter dated 12-12-1981 while he was officiating for a brief spell as Chief
Engineer, South-West Zone, and who was appointed as sole Arbitrator by letter dated 9-6-1983 had resigned
as the sole arbitrator by letter dated 16-11-1983, apparently because of the delicacy occasioned by his dual
capacity. It was therefore contended by the petitioner, that the appointed arbitrator having been disabled and
unwilling to proceed with the reference, the Engineer-in-Chief was entitled and obliged to appoint another
Engineer Officer as the sole arbitrator in terms of the provisions contained in Clause 70 of the agreement. In a
rejoinder filed on 5th December, 1983, the first respondent for the first time, contended that he was notagreeable to the appointment of an "Engineer Officer" belonging to the same Department as the sole arbitrator
in the reference.
4. The reliefs sought in Ext. P1 filed under Sections 5 and 12 of the Arbitration Act were :
"(i) Grant leave to revoke the authority of the 2nd respondent as Arbitrator in the dispute between the
pe t i t ione r and the 1s t r e s ponden t a r i s i ng ou t o f the con t r ac t under Agreemen t N o . CE
SWZ/COCHIN/36/78-79 dated 7th April, 1979.
(ii) Appoint an impartial person of repute to act as sole arbitrator in the place of the 2nd respondent upon
granting leave to revoke the authority of the 2nd respondent as Arbitrator.
(iii) Grant costs of the petitioner in this petition.
(iv) Grant such other reliefs as this Honourable Court deems fit and proper in the facts and circumstances of
the case."
5. During the course of the hearing, petitioner naturally raised a contention that the appointed arbitrator having
resigned, the relief of revocation of his authority could not and should not be granted, and that in terms of
condition 70 of the General Conditions of the Contract, the Engineer-in-Chief was entitled to appoint another
Engineer Officer as the substitute for the appointed arbitrator who was unable and unwilling to proceed with
the reference. It was therefore submitted that neither the relief of revocation of the authority of the appointed
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arbitrator, viz., Shri K.C.S. Rao, nor the relief of appointment of another person as sole arbitrator could be
granted by the Court.
6. The Court raised the following issues for decision :
"1. Whether this Court should grant leave to the petitioner to revoke the authority of the 2nd respondent as
Arbitrator in the dispute between himself and the 1st respondent?
2. In view of the subsequent events, should this Court remove the 2nd respondent, the Arbitrator?
3. Whether a new Arbitrator should be appointed? If so, who would-be the new Arbitrator and who is
competent to appoint him?"
7. The contentions of the first respondent who was the petitioner in (Arb.) O.P. No. 18 of 1983, as can be
gleaned from Ext. P.1, was that the appointed arbitrator, Shri K.C.S. Rao, having issued notice of termination
of the agreement dated 12-12-1981, on the basis of his conclusions in relation to the same dispute, was
disqualified to be the sole arbitrator, due to possible bias in favour of the petitioner and against the first
respondent-contractor. No point is seen raised in the petition, that the Engineer-in-chief, who was designated
as appointing authority was in any manner disabled to exercise the power which he had under condition 70 ofthe agreement to appoint a substitute. As a matter of fact, the ground taken was, that -
"There is no term in the Agreement between the parties which provides for the Engineer-in-Chief of the first
respondent filling up the vacancy of a post of Arbitrator in case leave is granted by this Honourable Court to
revoke the authority of the Arbitrator appointed by the Engineer-in-Chief. Hence the only course of action for
the petitioner is to seek remedy under Section 12 of the Arbitration Act if the petitioner's prayer for leave to
revoke the authority of the appointed Arbitrator under Section 5 of the Arbitration Act is granted by this
Hon'ble Court as this Hon'ble Court alone has jurisdiction to fill up such vacancy."
8. By Ext. P6 order, the second respondent held, that the first respondent's apprehension that the appointed
arbitrator Shri K.C.S. Rao was likely to be biased was a reasonable ground for removing him from theassignment as arbitrator, To arrive at this conclusion, the second respondent also found that the resignation of
the appointed arbitrator subsequent to the filing of the petition under Sections 5 and 12 of the Arbitration Act
had to be completely ignored. Having thus granted the relief under Section 5, the Court found, that "both the
parties do not want supersession of the reference. In these circumstances, the only course open to me is to
appoint a new arbitrator. At the time of arguments, the learned counsel for the petitioner requested that a
retired Judge of the High Court of Kerala be appointed as the new arbitrator". The second respondent thought
it better to give an opportunity to both the parties on the choice of the new arbitrator with a view to find out
whether there was any agreed name. The case was therefore adjourned to 31-1-1984 for the selection of the
arbitrator. It was at this stage, that this Original Petition was filed by the petitioner.
9. The petitioner submits that the reliefs sought in Ext. P1 application under Sections 5 and 12 of the Act were
incapable of being granted by the second respondent, since the revocation of the authority of the appointed
arbitrator was both unnecessary and impossible, in view of his resignation dated 16-11-1983, and the
designated appointing authority, viz., the Engineer-in-Chief had necessary power to appoint a new arbitrator
in case the appointed arbitrator was unable or unwilling to proceed with the reference, and therefore the relief
under Section 12 of the Act also could not be granted. It is submitted, that the only ground for revocation of
appointment of Shri K.C.S. Rao being that he was likely to be biased, once he was removed on his own
volition, there was no justification for grant of the relief sought under Section 5 of the Act. Appointment of a
new arbitrator in the place of the appointed arbitrator under Section 12 of the Act was essentially connected
with the relief under Section 5 of the Act, It is submitted that relief under Section 5 could not be granted, and
there being nothing in the pleadings indicating that the designated appointing authority was disabled to act
under condition 70 of the Agreement, the Court should not have proceeded with the application at all.
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10. Counsel for the petitioner contended, that the first respondent, having entered into an agreement with open
eyes with the petitioner, reserving the power of appointing an Engineer Officer of the choice of the
Engineer-in-Chief as the Arbitrator, had no justification to file the petition under Sections 5 and 12 of the
Arbitration Act for revocation of the authority of the arbitrator, or to seek appointment of another arbitrator,
he submitted that, assuming that such power is granted in cases in proved or reasonable likelihood of
prejudice or bias in the arbitrator, he could only seek to remove that arbitrator and cannot seek and obtain an
order repudiating the agreement whereunder the designated appointing authority was competent to choose
another arbitrator. He further submitted that even assuming that Ext. PI petition was properly filed, and at thetime of entertaining the same the 2nd respondent-Court had jurisdiction, the Court should have taken into
consideration the subsequent events which took place during the pendency of the application, for moulding
the reliefs to be granted. According to him, it was not as if the fact of resignation of the arbitrator, against
whom objections were raised by the first respondent in the petition filed under Sections 5 and 12 of the
Arbitration Act, could be completely ignored, because it took place subsequent to the filing of Ext. P1
petition. He submitted that the second respondent-Court was not justified in interfering with the power of the
Engineer-in-Chief to appoint another arbitrator in place of the appointed arbitrator, since the power was
subject to the terms of a consensual contract and such power was not liable to be lightly interfered with. He
lay particular emphasis on the specific finding contained in Ext. P6 order, that "both the parties do not want
supersession of the reference". The only course open for the Court, even assuming it had power under
Sections 5 and 12 of the Arbitration Act, to revoke the authority of the appointed arbitrator and appointanother arbitrator, was to direct appointment of another Engineer Officer of the choice of the designated
appointing authority as the arbitrator, without proceeding to arrogate to itself the power to appoint another
arbitrator. In reply to the point relating to jurisdiction, it was submitted that this Court was entitled, and in
fact, obliged to reach out at any illegality and injustice whenever any such was committed, and no technical
plea would stand in the way of exercise of jurisdiction of this Court in appropriate cases.
11. The, first respondent resisted the petition on various grounds. It was submitted that a caveat was filed by
the first respondent on 25-1-1984 to ensure that the first respondent was heard in any M.F.A. or C.R.P, which
was likely to be filed by the petitioner. The first respondent contends that the Original Petition was filed,
obviously, to circumvent the caveat and obtain an order of stay without notice to him. According to the first
respondent, a revision petition could have been filed against Ext. P6 order dated 23-1-1984; and an effectivealternative remedy being available, the Original Petition should not have been entertained. It was submitted
that an order passed by the Court under Section 5 of the Arbitration Act was meant to be final in view of the
provisions contained in Section 39 of the Act, and that such statutory finality is not liable to be avoided by
invoking the discretion of this Court under Articles 226 and 227 of the Constitution of India. It is submitted
that, in any case, this Court cannot reappreciate the evidence and sit in appeal over the judgment of the second
respondent, when a right of appeal has not been conferred on the petitioner. It is further submitted that there
being no provision in the agreement enabling appointment of any new arbitrator, in a case where the authority
of the appointed arbitrator is revoked under Section 5 of the Act, the provisions in condition 70 of the
agreement cannot clothe the Engineer-in-Chief with the authority to appoint a substitute. The first respondent
contends that the resignation of the appointed arbitrator was manipulated by the petitioner; and that being a
subsequent development, could not be determinative of the jurisdiction of the second respondent to deal with
and dispose of Ext. P1 application. It is also submitted that a reasonable apprehension of likelihood of bias of
an arbitrator is sufficient to attract Section 5 of the Arbitration Act.
12. The propositions which emerge for consideration in this case are the following :
"(i) Is the Original Petition filed against Ext. P6 not maintainable in view of the provisions contained in
Section 39 of the Arbitration Act, which by implication, exclude an appeal against orders passed under
Sections 5 and 12 of the Act?
(ii) Is it open to this Court in exercise of the power under Articles 226 and 227 of the Constitution of India to
interfere with an order in the nature of Ext. P6 which has statutory finality and grant enforcement of a right
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emanating from a contract?
(iii) Does the second respondent-Court have power under Section 5 of the Arbitration Act to grant leave for
revocation of the authority of the Arbitrator, if the Arbitrator concerned resigns office or indicates his inability
or unwillingness to proceed with the reference during the course of the proceedings? or in other words, does
the filing of the petition under Section 5 of the Arbitration Act take away the contractual and consensual
power granted to one of the parties to the agreement to appoint a new Arbitrator?
(iv) Does the second respondent-Court have power to proceed under Section 12 of the Arbitration Act when
once the arbitrator, whose authority was sought to be revoked, resigns himself leaving it open to the authority
designated by the parties to the agreement to appoint another arbitrator?
and
(v) Is the second respondent-Court entitled or bound to take into consideration events subsequent to the filing
of the petition for the purpose of moulding reliefs to be granted? or are the subsequent events liable to be
excluded completely?"
13. The preliminary objections taken by the first respondent have to be considered first. The first objection isagainst the filing of an Original Petition challenging Ext P.6 order when the petitioner had been served with
notice of the caveat filed by the first respondent anticipating the petitioner to file a Civil Revision Petition or a
Miscellaneous First Appeal. If a petition under Articles 226 and 227 of the Constitution of India is
maintainable against Ext. P6 order, the fact that the petitioner, instead of filing a C.R.P. or a M.F. A., filed an
Original Petition allegedly to avoid the caveator is no reason to hold that the Original Petition is liable to be
dismissed on that ground.
14. The next objection is that Section 39 of the Arbitration Act deals with all cases in which an appeal can be
filed; and an order under Sections 5 and 12 of the Act is not one such. It is therefore submitted that statutory
finality is attached to such an order, at least by implication; and that such finality cannot be impaired by
exercise of the power of this Court under Article 226 of the Constitution of India.
15. This submission bears detailed examination. I will assume, without deciding, that there is finality attached
to an order in the nature of Ext. P6. Can it be successfully contended that such statutory finality disables
judicial review in exercise of the jurisdiction of this Court under Articles 226 and227 of the Constitution of
India? In other words, can a statutory provision, by implication, exclude judicial review altogether of orders
passed thereunder? The answer does not seem to be difficult to find. It shall only be an emphatic negative as
given by Denning L.J., in re Gilmore's Application, (1957) 1 All ER 796, in the following words :
".....and on looking again into the old books I find it very well settled that the remedy by certiorari is never to
be taken away by any statute except by the most clear and explicit words. The word "final" is not enough.
That only means "without appeal". It does not mean "without recourse to certiorarr. It makes the decision final
on the facts, but not final on the law. Notwithstanding that the decision is by a statute made "final", certiorari
can still issue for excess of jurisdiction or for error of law on the face of the record".
He concluded, after citing celebrated authorities of his eminent forebears beginning with Coke C. J. and
including Lord Mansfield, Lord Kenyon etc., that -
"In my opinion, therefore, notwithstanding the fact that the statute says that the decision of the medical appeal
tribunal is to be final, it is open to this court to issue a certiorari to quash it for error of law on the face of the
record".
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In dealing with a somewhat similar question, Lord Reid held, in Anisminic v. Foreign Compensation
Commission, (1969) 1 All ER 208 (H.L.) :
"It was argued that the whole matter of construing the order was something remitted to the commission for
their decision. I cannot accept that argument, I find nothing in the order to support it. The order requires the
commission to consider whether they are satisfied with regard to the prescribed matters. That is all they have
to do. It cannot be for the commission to determine the limits of their powers. Of course, if one party submits
to a tribunal that its powers are wider than in fact they are, then the tribunal must deal with that submission,but if they reach a wrong conclusion as to the width of their powers, the. Court must be able to correct that not
because the tribunal has made an error of law, but because as a result of making an error of law, they have
dealt with and based their decision on a matter with which, on a true construction of their powers, they had no
right to deal. If they base their decision on some matter which is not prescribed for their adjudication, they are
doing something which they have no right to do and, if the view which I expressed earlier is right, their
decision is a nullity".
In Pearlman v. Keepers and Governors of Harrow School, (1979) 1 All ER 365, Lord Denning again dealt
with the same question and observed :
"Those words 'final and conclusive' have been considered by the Courts a hundred times. It has beenuniformly held that they preclude any appeal to a higher court in the sense of an appeal proper where the
higher court reviews the decision of the lower tribunal and substitutes its own decision for that of the lower
tribunal: see Westminster Corpn. v. Hotels Gordon, (1907-1 KB 910) and Hall v. Arnold (1950-1 All ER
993). But those words do not preclude the High Court from correcting the errors of the lower tribunal by
means of certiorari, now called judicial review. Notwithstanding that a decision is by a statute made 'final and
conclusive', certiorari can still issue for excess of jurisdiction, or for error of law on the face of the record : see
Re Gilmore's Application; (1957-1 All ER 796) or a declaration can be made by the High Court to determine
the rights of the parties. It can declare the law by which they are bound, irrespective of what the lower tribunal
has done : see Pyx Granite Co. Ltd., v. Ministry of Housing and Local Government, (1959-3 All ER1). It can
even consider the point of law by means of a case stated: See Tehrani v. Rostron, (1971-3 All ER 790)."
and
"The High Court has, and should have, jurisdiction to control the proceedings of inferior courts and tribunals
by way of judicial review. When they go wrong in law, the High Court should have power to put them right.
Not only in the instant case to do justice to the complainant, but also so as to secure that all courts and
tribunals, when faced with the same point of law should decide it in the same way. It is intolerable that a
citizen's right in point of law should depend on which judge tries his case, or in what court it is heard. The
way to get things right is to hold thus : no court or tribunal has any jurisdiction to make an error of law on
which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction and certiorari
will lie to correct it."
16. A consideration of these decided cases y ields only one answer to the preliminary point raised by the first
respondent. It is ordinarily difficult to assume exclusion of judicial review altogether of orders of Subordinate
Courts or Tribunals in the absence of clear and specific words to that effect. Even words like 'final' or 'final
and conclusive' do not permit an inference that such determinations are outside the supervisory and certiorari
jurisdiction of superior courts. In the present case, even those words are not used. It is far too far-fetched an
argument to suggest that because an appeal is not provided under Section 39 against an order passed under
Sections 5 and 12 of the Arbitration Act, it should be assumed that such orders are outside the purview of
Articles 226 and 227 of the Constitution. I have no hesitation to reject this submission.
17. Another preliminary objection is that a petition under Article 226 of the Constitution of India does not lie
to correct a determination by a civil court and the jurisdiction under Article 227 confines itself only to
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jurisdictional defects and not to errors of law apparent on the face of the record of the orders of the
Subordinate Courts/Tribunals. In Engineering Mazdoor Sabha, AIR 1963 SC 874, it was observed by
Gajendragadkar J., as he then was (at pp. 881 and 882).
"Article 226 under which a writ of certiorari can be issued in an appropriate case, is, in a sense, wider than
Article 136, because the power conferred on the High Courts to issue certain writs is not conditioned or
limited by the requirement that the said writs can be issued only against the orders of Courts or Tribunals.
Under Article 226(1), an appropriate writ can be issued to any person or authority, including in appropriatecases any Government, within the territories prescribed. Therefore even if the arbitrator appointed under
Section 10A is not a Tribunal under Article 136 in a proper case, a writ may lie against his award under
Article 226."
In State of Madhya Pradesh v. Babu Lal, AIR 1977 SC 1718 (at p. 1719) Ray, C.3. observed that :
"One of the principles on which certiorari is issued is where the Court acts illegally and there is error on the
face of record. If the Court usurps the jurisdiction, the record is corrected by certiorari. This case is a glaring
instance of such violation of law. The High Court was in error in not issuing Writ of Certiorari."
18. It is true that Courts exercising power under Article 226 of the Constitution of India have cautionedthemselves against over-enthusiastic invasions overstepping reasonable limits of certiorari and supervisory
jurisdictions. It is also true that the Supreme Court in the decisions reported in AIR 1958 SC 398, AIR 1964
SC 1419, AIR 1967 SC 1, and AIR 1975 SC 1297, have repeatedly reminded that the exercise of the power
under Articles 226 and 227 shall not be unbridled; and, as Krishna Iyer, J. observed in AIR 1976 SC 425 it
shall not authorise "its free exercise like a bull in a china shop". But in situations where a subordinate Tribunal
confers jurisdiction on itself by an incorrect, or wrong decision on law or on facts which are jurisdictional, it
seems to me that it is not only permissible, but it becomes obligatory that the Court exercises its certiorari or
supervisory jurisdiction under Article 226 or 227 of the Constitution of India. It seems to me necessary to
consider whether the second respondent could have had jurisdiction when it was told that the appointed
arbitrator had resigned and the agreement enabled appointment of a substitute by the designated appointing
authority himself. It appears to me that that question relates to jurisdiction and has to be considered by thisCourt. I would, therefore, hold, that even though there are limitations inherent and inbuilt, and most of them
self-imposed, in the matter of exercise of certiorari or supervisory jurisdictions, in a case where it is brought to
the notice of the Court, that the Subordinate Court, or Tribunal proceeded to confer jurisdiction on itself on an
erroneous understanding of the law, or wrong assumption of jurisdictional facts, the Court cannot be denied
jurisdiction to exercise its power of judicial review. I therefore, holder, that the invocation of jurisdiction of
this Court under Articles 226 and 227 of the Constitution of India, in the facts of this case, cannot be held to
be unjustified.
19. To answer the third and fourth questions, we have to refer to the relevant Clauses of the agreement and
Sections 5 and 12 of the Arbitration Act. The relevant provision of the agreement relating to appointment of
the arbitrator is Clause 70, which has been extracted earlier. Evidently, the above Clause itself provides as to
what shall happen in the case of resignation of the arbitrator or vacation of office, or his inability, or
unwillingness to act due to any reason whatsoever, and enables the designated appointing authority to appoint
a new arbitrator. Ordinarily, this power given to the designated authority by the contracting parties cannot be
taken away by the filing of an application under' Section 5 of the Arbitration Act. According to the Courts of
this country, an arbitration agreement providing for a summary determination of the disputes between the
parties is always treated as inviolable; and to the extent possible, not subject to interference by Courts. The
Courts had been leaving the parties to their bargains to the-extent possible and refusing to permit them to turn
to courts when the consequences of the bargains entered with open eyes happened to be to their disadvantage.
Resort to courts in matters covered by arbitration agreements is permitted only in very limited and exceptional
cases and on strict compliance with the enabling provisions of the Arbitration Act. If. therefore, there is a
power as per the agreement to appoint a substitute in the place of the appointed arbitrator on the happening of
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specified contingencies, the Courts shall not ordinarily interfere with the working out of the arbitration
Clauses in the agreement in exercise of the power under Section 5 or 12 of the Arbitration Act.
20. Counsel for the first respondent submitted that acceptance of such a position may encourage unilateral
attempts of one of the parties to the agreement to so act as to deprive the Court of its jurisdiction, after a
petition is filed under Sees. 5 and 12 of the Arbitration .Act, and may not therefore be accepted. Evidently, it
is assumed that resort to court under Sections 5 and 12 of the Act is a matter of right for any of the parties to
the agreement, an exercise of the power by the Court is a matter of course, once the power is invoked. 1 wouldrather hold that the invocation of the power under Section 5 of the Arbitration Act is not the Rule, but only the
exception and the exercise of that power is largely discretionary as indicated by the negative phraseology used
in the Section to confer power to revoke the authority of the appointed arbitrator. I am free to agree that the
exercise of the power to revoke the authority of an appointed arbitrator may be obligatory if the Arbitration
Clause in the agreement does not contain a provision for appointment of a substitute in a case where the
appointed arbitrator is disqualified by bias or other reasons or resigns or vacates office or is unable or
unwilling to proceed with the reference due to any reason whatever. Does the only fact that a petition has been
filed for revocation of the authority of the arbitrator and for appointment of a substitute without superseding
the reference, deprive the designated appointing authority of its power to appoint a substitute? or in other
words, is the Court entitled to assume that once an application is filed under Sees. 5 and 12 of the Act, the
designated appointing authority becomes incapable of acting and the Court alone has the power ofappointment? The basic tenet of all arbitral jurisdictions is that the parties shall be left to their bargains and
the arbitral tribunals which they have chosen.' If that be so, an assumption cannot easily be made that the
Court shall, as a matter of course, interpose itself between parties merely because an application under one or
the other provision of the Arbitration Act has been made. If the Court be, as it should be, an unwilling
adjudicator in matters covered by arbitration agreements, it cannot be held that the filing of an application
under Section 5 of the Arbitration Act results automatically in the deprivation of the power under the
agreement to appoint a substitute in a case where the appointed arbitrator resigns or vacates office, or is
unable or unwilling to proceed with the reference for any reason whatever. If it be otherwise, one can always
avoid the bargain and the arbitral tribunal chosen by him by filing a petition under Section 5 of the Act. If the
power of the Court to revoke the authority of an appointed arbitrator without superseding the reference be
discretionary and not obligatory, it is essential that the Court considers the effect of the provisions of theagreement for appointment of a substitute in the place of the appointed arbitrator.
21. In dealing with jurisdiction of the Court under Section 5 of the Arbitration Act to revoke the authority of
the appointed arbitrator, the Court has to bear in mind the words of caution contained in the judgment of the
Supreme Court reported in Amarchand v. Ambica Jute Mills, AIR 1966 SC 1036. (at p. 1042) as follows :
"Before the Court exercises its discretion to give leave to revoke an arbitrator's authority, it should be satisfied
that a substantial miscarriage of justice will take place in the event of its refusal. In considering the exercise
by the Court of the power of revocation it must not be forgotten that arbitration is a particular method for the
settlement of disputes. Parties not wishing the law's delays know, or ought to know, that in referring a dispute
to arbitration they take arbitrator for better or worse, and that his decision is final both as to fact and law. In
many cases, the parties prefer arbitration for these reasons. In exercising its discretion cautiously and
sparingly, the Court has no doubt these circumstances in view, and considers that the parties should not be
relieved from a tribunal they have chosen because they fear that the arbitrator's decision may go against
them."
In the present case, the arbitral Tribunal chosen by the parties is an Engineer Officer to be appointed by the
Engineer-in-Chief or a substitute to be chosen by him in the event of specific contingencies. Ordinarily,
therefore, one of the parties to the arbitration agreement will not be permitted to urge that he shall be relieved
from the Tribunal he has chosen because he fears that the arbitrator's decision may go against him. The
provisions of Clause 70 of the agreement, which enable the appointing authority to appoint a substitute,
cannot therefore be avoided by the first respondent, unless the reference itself is superseded or the agreement
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itself is revoked.
22. Can the Court exercise its power to appoint an arbitrator under Section 8 of the Arbitration Act. after the
arbitrators had become functus officio due to efflux of time? In the decision of the Supreme Court reported in
Hari Shanker Lal v. Shambhu, AIR 1962 SC 78. it was held, that after the expiry of the period of four months,
during which the award should have been made, the arbitrators become functus officio, unless the period is
extended by the Court under Section 28 of the Act; and therefore, the Court should not appoint a substitute
and the award of the arbitrators so appointed would be devoid of jurisdiction. We have a similar case here.Can the Court act under Section 5 of the Arbitration Act to revoke the authority of an appointed arbitrator
after he resigns office or otherwise disables himself from proceeding with the reference? Counsel for the first
respondent submits that the Court can and it shall, since it is bound to take into consideration the facts and
circumstances as they obtained on the date of institution of the proceedings and not those which intervened
thereafter.
23. The efficacy of a provision similar to Clause 70 of the agreement, with which we are concerned in this
case, for the appointment of another tribunal as arbitrator after the award made by the first arbitrator was set
aside was considered in the decision of the Supreme Court reported in Juggilal v. General Fibre Dealers, AIR
1962 SC 1123. The agreement provided that all disputes and differences shall be referred to the arbitration of
the Bengal Chamber of Commerce under the Arbitration Rules of the Chamber for the time being in force.The award passed by the Tribunal of the Bengal Chamber of Commerce was set aside. Thereafter, one of the
disputants requested the Chamber of Commerce for a second Tribunal to resolve the disputes. The challenge
against it having been repelled by a single Judge of the High Court of Calcutta, the latter went to the Supreme
Court on Special Leave. After a detailed discussion of the provisions of the Arbitration Act, it was observed
(at p. 1127) :
"The scheme of the Act therefore is whether the Arbitration is under Chap.II, Chap.III or Chap.IV, to give
discretion to the Court to decide whether to supersede the reference or not. Where it decides to supersede the
reference, it has to order that the arbitration agreement shall cease to have effect with respect to the difference
referred; but where it decides not to supersede the reference and the reference and arbitration agreement
subsist and if there is machinery provided in the arbitration agreement for making a further reference or forcontinuing the same reference, further arbitration can take place. The contention therefore urged on behalf of
the appellant that once the award is set aside the arbitrator becomes functus officio and consequently there can
be no further reference with respect to the dispute decided by the award which is set aside, must fail in.view of
the specific provisions of Section 19 of the Act."
It may be remembered that in this case, both the parties specifically agreed that the reference need not be
superseded. It was further observed in the decision, that "when it is said that the arbitrator is generally functus
officio after he has made the award, it only means that he cannot change that award in any matter of substance
himself. But that does not take away the court's power to remit the award for reconsideration under Section 16
or to refuse to supersede the reference even though the award is set aside leaving it to the parties to take such
further action under the arbitration agreement for further arbitration". It was further observed (at pp. 1127 and
1128) :
"We are therefore of opinion that whatever may be the position in the absence of a provision similar to
Section 19 of the Act, there can be no doubt that Section 19 gives power to the Court not to supersede the
reference and so leave the arbitration agreement effective even when it sets aside the award and thereupon it
will depend upon the terms of the arbitration agreement whether arbitration proceedings can go on with
respect to the same dispute or with respect to some other disputes arising under the arbitration agreement. This
was the view taken in the Baranagore Jute Factory case, 62 Cal WN 734 : (AIR 1958 Cal 490). Similar view
has been taken in Rallis India Ltd. v. B. V. Manickam Chetti and Co. AIR 1956 Mad 369 and in Firm Gulab
Rai Girdhari Lal v. Firm Bansi Lal Hansaraj, AIR !959 Punj 102. We think that this view is correct."
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Dealing with the terms of the contract, it was observed (at p. 1128) :
"Further, as the Chamber is constituted the arbitrator in this term of the contract and as the chamber consists
of a large number of members and has its own rules for constituting arbitral tribunals, it is in our opinion quite
possible on the terms of such an arbitration agreement to constitute another tribunal to decide the same dispute
where the reference remains pending and has not been set aside under Section 19, provided there is machinery
for appointing different persons as arbitrators under the rules of the Chamber."
24. In the light of the above observations, the question which we have to consider is whether the Court was
right in proceeding to appoint an arbitrator under Section 12 of the Arbitration Act, completely ignoring the
provisions of Clause 70 of the agreement, whereby another person could have been appointed as Arbitrator by
the designated appointing authority, viz., the Engineer-in-Chief. The answer to this question can only be in the
negative, since it was the specific case of both the parties before the Court that the reference need not be
superseded. Even assuming that the Court has jurisdiction under Section 5 of the Arbitration Act to revoke the
authority of the appointed arbitrator after his resignation, the reference not having been superseded, the parties
should have been held to the terms of the bargain, and should not have been permitted to avoid the Tribunal of
their choice.
25. Considerable, reliance was placed by the counsel for the first respondent on the decision reported inSteemen Ltd. v. State of Himachal Pradesh ILR (1976) Him Pra 218 : The facts obtaining in that case were
very similar to those available in the present case. During the pendency of an application under Section 5 of
the Arbitration Act, before the High Court of Himachal Pradesh for revoking the authority of the appointed
arbitrator, the latter resigned. Clause 29 of the agreement, inter alia, provided that "any question, claim, right,
matter or thing whatsoever arising out of the contract" was to be referred to the sole arbitration of a person to
be appointed by the Chief Engineer, H.P.P.W.D. in charge of the work at the time of dispute. If such arbitrator
was transferred or vacated office, or was unable to act for any reason, the Chief Engineer, H.P.P.W.D. was to
appoint another person to act as Arbitrator in accordance with the terms of the contract, and that no person,
other than the person appointed by such Chief Engineer, was to act as Arbitrator. On resignation of the
appointed arbitrator, another arbitrator was appointed, but he did not proceed with the arbitration with
promptitude. It was in evidence that the Second arbitrator was sought to be influenced by official superiors inmatters relating to the arbitration. That occasioned the application under Section 5 of the Arbitration Act, read
with Sections 11, 12 and 13 thereof, for leave to revoke the authority of the arbitrator appointed as substitute.
During the course of the proceedings in Court, that arbitrator himself resigned, and a third person was
appointed by one of the Chief Engineers as the Arbitrator. The respondents contended that the application had
become infructuous, and the Court had lost its jurisdiction as another arbitrator was appointed. Dealing with
this point, it was observed, as follows :
"I regret, I am unable to subscribe to this view of the learned counsel. The jurisdiction once conferred upon
the court under Section 5, cannot be set at naught because a party has chosen to defeat that jurisdiction by
calling upon the arbitrator to resign and by making a fresh appointment of arbitrator. In a case where the
contractor has some grievance against the State Government, because the arbitrator appointed by the latter is
finding it difficult to enter into reference, due to extraneous influence exercised upon him and thus seeks to
revoke his authority, so that recourse could be had under Section 12 for the Court to cancel the arbitration
agreement itself, can such a contractor be defeated to have that recourse to cancellation of arbitration
agreement under Section 12, for which he invoked jurisdiction of the Court under Section 5, by enabling the
State Government to ask for the resignation of the arbitrator and thereby rendering the application under
Section 5 nugatory so that the Court's jurisdiciton is lost and no order can be passed under Section 12 of the
Act? In my opinion such a situation cannot be permitted to exist. Therefore it would be a negation of justice if
the jurisdiction of the Court is held to be lost under Section 5 simply because one of the parties has chosen,
suo motu, to revoke the authority of the arbitrator by compelling him to resign."
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Unlike in the present case, where both the parties agreed that the reference need not be superseded, the
important fact emanating from the above extract is that the contractor had sought cancellation of the
arbitration agreement itself on the ground that the appointed arbitrator was misconducting himself and the
appointing authority himself was biased against the contractor. The additional factor, which was mentioned in
paragraph 7 of the above judgment was that the Chief Engineer, who appointed the third person as arbitrator,
was not designated appointing authority, since he was not the Chief Engineer "in charge of the work at the
time of the dispute". It was therefore held that the resignation of the second arbitrator and the appointment of
the third person, who was appointed by a person other than the designated appointing authority did not takeaway the jurisdiction of the Court to act under Section 12 of the Act. It was held :
"The appointment of Shri Sublok is manifestly incorrect and the said appointment cannot be upheld. The
Court can certainly exercise jurisdiction under Section 12 after revoking the authority of the arbitrator. It can
either appoint any other person to act as sole arbitrator or can hold that the arbitrator or can hold that the
arbitration agreement shall cease to have effect with respect to the differences referred."
The Court further held, that in view of the allegations and counter allegations between designated appointing
authority and the Director of the Contractor, and the fact that Chief Engineer who was the appointing
authority had submitted a report, which resulted in the filing of a criminal case against the Director of the
Contracting Company, "it will not be proper to ask the Chief Engineer to appoint an arbitrator, which theCourt can do under Section 12 of the Act, in compliance with Clause 29 of the agreement, and in the opinion
of the Court, it was a fit case to order that the arbitration agreement should cease to have effect with respect to
the differences referred." two notable differences between the present case and the case decided by the
Himachal High Court are that the appointing authority, who should have been requested to appoint another
arbitrator, was himself proved to be biased against the Director of the contracting company and a criminal
case was instituted against the latter and therefore, the power under Clause 29 of the agreement could not be
resorted to; and secondly, the contracting company had specifically requested for supersession of the
reference including Clause 29 thereof providing for appointment of a substitute. It is clear from a reading of
the judgment referred to above, that but for these two factors, the court would have required the designated
appointing authority to appoint another arbitrator. It is of course true, that the Court proceeded to grant leave
to revoke the authority of the arbitrator, who had resigned, and further held that the arbitration agreementshould cease to have effect with respect to the differences referred. The important distinction in our case is
that the availability of the power under Clause 70 of the agreement to the designated appointing authority to
appoint a substitute, even assuming that the authority of the appointed arbitrator could be revoked, was not
considered at all. It has been repeatedly held, that though the Court has got a discretion under Section 5 of the
Arbitration Act to revoke the authority of an appointed arbitrator, that power can be exercised only in limited
cases, and on a finding that if the power to grant leave for revocation of the authority of the appointed
arbitrator and the power to appoint a new arbitrator was not exercised, it will be result in manifest miscarriage
of justice. A finding to that effect seems to be jurisdictional; and in the absence of such a finding, the
consequential proceedings under Section 12 of the Arbitration Act can only be held to be devoid of
jurisdiction.
26. The only other proposition that bears examination is whether the Court should have decided the dispute
with reference to the matters as they stood on the date of institution of the petition or could the Court have
taken into consideration events which took place during the pendency of the proceedings in the matter of
moulding the reliefs? The ordinary rule which has been emphatically restated times without number is that the
Court shall determine the lis with reference to the facts as they obtained on the date of institution of the
proceedings.
27. Counsel for the first respondent referred me to the decisions reported in AIR 1951 Mudh Bha 63, AIR
1966 Pun & Har 374 (FB), (1971) 1 SCC 34, AIR 1976 SC 49, 1978 Ker LT 770, 1979 Ker LT 723 and
(1885) 16 QBD 178 in support of this proposition. In all these decisions, it has been emphasised that the
ordinary rule is that the suit or application shall be decided on the cause of action as it existed on the date of
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its commencement and that the exceptional doctrine is that the court may in suitable cases take notice of the
facts corning into existence after the filing of the suit or application and give relief on the basis thereof, if the
result of such a course would not be to give manifest advantage or cause serious prejudice to one or the other
of the parties. In AIR 1976 SC 49, it was held (at p. 52) :
"Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of
relief will be more efficacious on account of developments subsequent to the suit or even during the appellate
stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts."
It was also stated, that (at p. 53) :
"Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that
very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to
mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by
subsequent events save where there is a change in the law and it is made applicable at any stage."
It is, of course, true, that the courts have emphasised, that while taking cautious judicial cognisance of
'post-natal' events, even for the limited and exceptional purposes, no court will countenance a party altering,
by his own manipulation, a change in situation and plead for relief on the altered basis.
28. The same question had come up for consideration in two other decisions of the Supreme Court. In the
decision reported in AIR 1975 SC 1409, it was held by Krishna Iyer, J., that (at p. 1410) :
"It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date of a
suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the
mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact
on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal it cannot
blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justified bending the
rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial
justice -- subject, of course, to the absence of other disentitling factors or just circumstances."
Reference was made to the decision of the Federal Court in Lachmeswar Prasad Shukul v. Keshwar Lal
Chaudhuri, AIR 1941 FC 5, and Patterson v. State of Alabam, (1934) 294 US 600. A still later decision,
reported in Satish Chand Makhan v. Govardhan Das Byas, (1984) I SCC 369 : (AIR 1984 SC 143), reaffirms
this proposition. The other decisions cited by the counsel for the first respondent only deal with the
application of the above principles to different factual situations. What seems therefore to be necessary is to
examine as to how those principles are to be applied to the facts of the present case.
29. In the present case, the basic postulate on which I have to proceed is that the court ordinarily is out of
bounds in disputes, which, by consensus, have to be decided by arbitration; and that the court shall not
ordinarily be anxious to oust that jurisdiction and revoke the authority of the appointed arbitrator, or to
appoint a substitute in his place. That has to be done only as a last resort and only when manifest injustice
would otherwise result. The fact that the appointed arbitrator against whom allegations of bias was made had
removed himself from the field by his voluntary action seems to me to be an important subsequent event of
exceptional nature which should compel the court to take that fact into consideration in moulding the relief. It
shall not be as if the court shall be anxious to preserve a cause of action as on the date of institution so that it
may have jurisdiction to appoint an arbitrator under Section 12 of the Arbitration Act; and that could be done
only on the exercise of its power to revoke the authority of the appointed arbitrator under Section 5 of the Act.
No prejudice is caused to either party by taking that subsequent event into consideration, because both the
parties had agreed that in case of unwillingness or inability of an arbitrator to proceed with the reference or his
non-availability, the designated appointing authority shall appoint a substitute. The effect of holding that the
subsequent event shall be taken into consideration is only that the provisions in Clause 70 of the agreement
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would become operative, and the dispute should be decided in accordance with the provisions contained in the
arbitration agreement. According to me, it cannot be pleaded with any amount of success by the first
respondent that resort to the provisions in Clause 70 of the agreement is likely to cause prejudice to him. I
should reiterate that the ordinary rule is that the parties to the agreement shall be bound by the bargain and
cannot ordinarily wriggle out of the arbitral tribunal chosen by them. If that be the basic rule, no prejudice is
caused, or is likely to be caused to the first respondent by the court taking the subsequent event of resignation
of the appointed arbitrator into consideration. I am not here dwelling so much on the question of propriety. To
me it appears to be a question of jurisdiction of the court to act under Section 12 of the Arbitration Act. Hadthe court taken the relevant subsequent event into consideration, it would not have had jurisdiction to proceed
under Section 12 of the Arbitration Act at all. The refusal to take that into consideration has resulted in the
Court assuming jurisdiction which it otherwise would not have had.
30. Counsel for the 1st respondent has sought to justify the revocation of the authority of the appointed
arbitrator on the ground of likelihood of bias. A number of decisions are cited in support of the proposition
that only reasonable likelihood of bias is sufficient and proof of actual bias is not necessary to avoid a
particular arbitrator. This proposition cannot be doubted. But in this case, I need not examine these aspects in
detail, since the appointed arbitrator had removed himself from the scene on his own motion. The question is
therefore purely academic. I should however take notice of the submission of the petitioner that Sr. K. C. S.
Rao, the appointed arbitrator himself had referred to this aspect in his notice, notwithstanding which, the firstrespondent had not taken any objections to the appointed arbitrator proceeding with the reference either before
him or before the Engineer in Chief I have also to advert to the fact that the Engineer in Chief was not accused
of any bias, nor was he even a party in the proceedings. No attempt even to indicate that the designated
appointing authority was also biased having been made, nor the reference sought to be superseded, the 1st
respondent cannot justify Ext. P6 order on the submission that the appointed arbitrator was likely to be biased
and therefore the designated appointing authority should be robbed of his power to appoint a substitute. The
only submission now is one of likelihood of official bias in him and also in the Engineer Officer of the same
department, if one such is appointed as a substitute. I should state that the 1st respondent cannot avoid the
provisions of the agreement altogether. Nor as it his intention, as is clear from the statement in Ext. P6 order
that neither party wanted to supersede the reference. I should take note of the submission of the 1st respondent
that according to Clause 70 of the agreement, the substitute who may be appointed by the Engineer in Chiefneed not necessarily be an Engineer Officer, nor need he be of the same department. These are matters for the
mature consideration of the Engineer in Chief, who, like the 1st respondent, shall be equally anxious to have
the matter disposed of at the earliest without any further occasion for another bout of multi-tier litigation.
31. I have therefore to answer the five propositions raised in this original petition as follows :
i) The original petition is maintainable in spite of the assumed finality of orders passed under Sections 5 and
12 of the Arbitration Act because of the non-mention of such an order as one of the appealable order under
Section 39 of the Act.
ii) It is open for this Court to interfere with orders in the nature Ext. P6 in exercise of its certiorari and
supervisory jurisdictions in exceptional cases, where the lower court/tribunal arrogates jurisdiction by a wrong
decision on jurisdictional facts, or on a manifest error of law.
iii) The mere filing of an application does not automatically deprive the appointing authority designated under
the terms of the arbitration agreement to appoint a substitute when the appointed arbitrator resigns, or
expresses his unwillingness or inability or non-availability to proceed with the reference, except when it is
shown that such resort to the terms of the agreement would cause prejudice and manifest injustice to one of
the contracting parties.
iv) The court may not have power to proceed under Section 12 of the Arbitration Act in view of the provisions
of the arbitration agreement providing for the appointment of a substitute as long as the reference is not
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superseded.
v) The Court has to take into consideration the subsequent events in moulding the relief on the basis of the
updated facts so that the relief to be granted is realistic.
The original petition has therefore to be allowed quashing Ext. P6 order; I do so. There will be no order as to
costs.
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