SANWAL COAL CARRIERS Vs. WESTERN COALFIELDS LIMITED

JUDGEMENT

(1.) The challenge in this Writ Petition under Articles 226 and 227 of Constitution of India is to order styled as interim award dated 25/3/2010 by arbitrator in dispute between petition and respondent. Dispute arose out of contract for driving payloaders and tippers for loading coal into trucks/tippers from ground stock and its transportation. By consent of parties it has been referred to sole arbitrator Mr. B. R. Harne on 20/7/2009 under Arbitration and Conciliation Act, 1996 (hereinafter to as "the Act" hereafter). It is not necessary to go into controversy leading to stoppage or termination of that contract. For present purposes, it is necessary only to note the case of petitioner that Chief General Manager of respondent on 20/3/2006 issued a notice to petitioner to resume work within 15 days and before that on 11/3/2006 work was given to another transporter who started it. It is the case of petitioner that report of committee constituted by respondent regarding imposition of penalty, forecloser /termination and other aspects having bearing on contract with petitioner indicating conclusions in his favour as another agency had resume work even before expiry of period of notice dated 20/03/2006 is being suppressed. It therefore filed an application before arbitrator on 5/12/2009 to direct respondents to place on record complete report of that committee. On 16/01/2010 petitioner pointed out that respondents have on 15/01/2010 refused to submit complete report by filing application and hence sought hearing on that application. On 03/02/2010 petitioner placed on record a note explaining relevance of report of committee and also on other issue of weighment of transported coal. On 20/02/2010 respondent also placed its brief note on record. In this background sole arbitrator has passed the impugned order on 25/03/2010 styling it as "interim report" on its cover page and as "interim order" at its commencement and also at its end. On issue no. 1 before him regarding filing of committee's report, arbitrator found that that report has no legal standing and it cannot be treated as relevant document. On issue no. 2 about weighment of transported coal, he found that system of delivery, weighment and preparation of bill was without any fault and was accepted by contractor all through the contract. He also noted that respondents have to prove that coal delivered to other contractors was fully accounted for in total coal transported by petitioner and was paid for. He therefore directed that both parties should jointly reconcile dispatch data and arrive at correct figures in this respect. Looking to the nature of controversy, writ petition is heard finally by making Rule returnable forthwith, by consent.

(2.) Shri Singh, learned Counsel for Petitioner has contended that no oral arguments were heard on issue no. 2 and thus findings delivered thereon are unsustainable. Regarding issue no.1, the learned Counsel states that grievance as made can be taken note of in writ jurisdiction and appropriate writ in the nature of prohibition can be issued to arbitrator. He has relied upon several judgments to drive home this contention. He has further stated that respondent being public authority cannot behave like a private individual and refuse to tender on record relevant piece of evidence. The committee was constituted as per order dated 10/07/2006 and that committee consisting of superior officers also invited petitioner and thereafter has submitted a report. Report considers material on record with evidence and finding therein is in favour of petitioner. According to him arbitrator cannot be permitted to proceed further without securing that report on record of Arbitration proceedings. The finding that report has no legal sanctity or is not irrelevant document is also assailed by him in this background. According to him, arbitrator has no jurisdiction to deliver any interim award. He points out that no responsible officer of respondents has passed any order prohibiting production of that report on record. I, find it appropriate to consider his contention in this respect little latter along with case law cited by him.

(3.) Shri Mehadia, learned Counsel for respondents has stated that Writ Petition is not maintainable and petitioner has to wait till arbitrator delivers final award which alone can thereafter be challenged as per legal procedure. According to him the constitution bench judgment of Hon'ble Apex Court in SBP &CO. Vs Patel Engineering Ltd and another, 2006 AIR(SC) 450 concludes this controversy and subsequent judgments of Courts taking view to the contrary must yield to it. He states that there is nothing wrong with application of mind on legal status of report of committee by arbitrator and as there is no jurisdictional error, this Court cannot interfere at this stage. He further states that when written notes of argument were filed before arbitrator, grievance about denial of oral hearing is misconceived and deserves to be rejected. According to him, no writ can be issued against arbitrator which clearly is only a private administrative body.