M BAIASUBRAMANIAM Vs. UNION OF INDIA

JUDGEMENT

(1.) PETITIONER has entered into a contract dated 1-11-1993, with the respondent herein, which inter-alia contains a provision for arbitration. The procedure for appointing the arbitrator is also provided therein. The arbitration is to be by a sole arbitrator, who shall be "an Engineer Offieer to be appointed by the authority mentioned in the tender document". The authority mentioned in the Tender documents is the Chief Engineer, Madras Zone, or in his absence, the Officer officiating as Chief Engineer, Madras Zone.

(2.) THE applicant has invoked Sections 11(8) and 12(3)(a) of the Arbitration and Conciliation Ordinance, 1996, which has since been replaced by Arbitration and Conciliation Act. Similar provisions exist under the Act, which replaced the Ordinance. THE Act provides that proceedings instituted under the Ordinance are also to be continued and disposed of of in terms of the Act.

(3.) LEARNED counsel for the applicant submitted that the scheme of Ordinance as also of the Act is to ensure the settlement of the dispute by Arbitrators, who are independent and impartial. Sec. 12 expressly requires the Arbitrator to disclose in writing any circumstance likely to give rise to justifiable doubts as to his independence or impartiality. Sub-section(2) requires the Arbitrator, throughout the arbitral proceedings, without delay to disclose to the parties in writing any circumstances likely to give rise to justifiable doubts as to his independence or impartiality, unless they have already been informed of them by him. Sub-Section (3) of Section 12 permits challenge to the Arbitrator, if circumstances exist which give rise to justifiable doubts as to his independence or impartiality. Counsel also referred to Sub-section (8) of Section II, which requires the Chief Justice, or any person or institution designated by him, to have due regard to considerations as are likely to secure the appointment of an independent and impartial arbitrator, while appointing the arbitrator. Counsel therefore, submitted that at the heart of the scheme of arbitration is the independent and impartial arbitrator, and therefore if there be any doubt regarding the arbitrator's ability to remain independent and be impartial, such an arbitrator would be disentitled to continue, and if yet to be appointed as arbitrator, from accepting the appointment as arbitrator.