KULDEEP DHANKAR Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS revision application by Kuldeep Dhanker against Union of India through General Manager, Telecommunication, District Jaipur has been filed impugning an order dated July 8, 1993 passed by the District Judge, Jaipur City in Civil Misc. Case No. 345/91 whereby the learned District Judge instead of appointing an independent arbitrator as prayed for by the plaintiff -petitioner appointed over again the Member (T.O.), Directorate of Telecommunication, New Delhi as Arbitrator with a further direction upon him that he should himself act as Arbitrator and give an award within 4 months.

(2.) THE plaintiff came to the court with the case that the Jaipur Telecommunication District invited tenders for publishing telephone Directory (English Edition) of Jaipur and the plaintiff petitioner gave a tender which was accepted. There was an agreement dated October 6, 1987 in between the General Manager, Telecommunication, District Jaipur on the one hand and the plaintiff petitioner on the other in his capacity as Proprietor of M/s Winner Advertising. According to the agreement the printing material was to be provided by the Department within 60 days but the Department failed to observe the time schedule of supplying the printing material. The petitioner however supplied 60 advance copies of the Directory within 60 days from the date of supplying the material by the Department which stood approved with slight modification. Thereafter the petitioner supplied 23 copies of the Directory on December 21, 1988. The remaining copies of the Directory were also ready for supply but on December 22, 1988 the Department Informed the petitioner that the Directory was not acceptable to them and thereupon a penalty of Rs. 2,88,000/ - was imposed illegally and arbitrarily. Since the department was not ready and inclined to sort out the material, the petitioner filed an application under Section 20 of the Indian Arbitration Act for appointment of an Arbitrator pursuant to the arbitration clause in the agreement. The arbitration clause inter alia was to the effect that all disputes or differences of any kind whatsoever arising out of or in connection with the contract, whether during the progress of the work or after its completion' and whether before or after the determination of the contract, shall be referred by the petitioner to the General Manager, Telecommunication, District Jaipur and the General Manager in his turn shall within a reasonable time, make and notify his decisions thereon in writing and the decisions should be final and binding upon the contractor. However, if the Contractor is dissatisfied with the decision of the General Manager, Telecommunication, District Jaipur on any matter in question, the dispute or difference on any account or if the General Manager, Telecommunication fails to make a decision within a reasonable time, then and in any such case, but except in any of the excepted matters, the petitioner may within reasonable time but not exceeding 21 days of the communication of such decision, take steps to refer the matter in question, dispute or difference to arbitration under clause 20 of the agreement. The work under the contract should unless otherwise directed by the arbitrator be continued by the petitioner during the arbitration proceedings subject to other rights and remedies of the Genera] Manager, Telecommunication, District Jaipur as provided in the contract. Except in respect of excepted matters referred to in clause 19 of the agreement all questions, issues, disputes and differences between the parties or pertaining to any interpretation thereof or the right or liability of any party or as to any act or omission of either party whether arising during the course of the work or after the completion or abandonment thereof, its termination, expiry or otherwise relating to the contract, should be referred by any aggrieved party to the sole arbitration of the Member (T.O.), Directorate of Telecommunication, New Delhi or his nominee. The arbitrator to whom the matter was originally referred, on his being transferred or vacating his office or being unable to act, for any reason, the Member (T.O.), Directorate of Telecommunication, New Delhi shall designate any other person to act as arbitrator in accordance with the terms of the contract and such persons shall be entitled to proceed with the reference from the stage at which it was left by his predecessor. The award of the arbitrator so appointed shall be final, conclusive and binding on all the parties to the contract and provisions of the Arbitration Act, 1940 or any statutory modification or re - enactment thereof and the rules made thereunder, shall apply to the arbitration proceedings under this clause. The award shall be made in writing and published by the arbitrator within six months after entering upon the reference or within such extended time not exceeding further four months as the sole arbitrator shall by a writing under his own hand extends. The arbitrator shall have power to order and direct either of the parties to abide by, observe and perform all such directions as the arbitrator may think fit, having regard to the matter in difference i.e. the dispute before him.

(3.) IT is submitted before me that the manner in which the arbitrator conducted himself in the proceedings amounted to neglect and refusal to act. The petitioner however filed an application before the learned District Judge under Section 8 of the Arbitration Act for appointment of an independent arbitrator in such circumstances. The learned District Judge however directed the department to give three names of other officers of the Department working at Jaipur and such names were supplied. On behalf of the petitioner a request was made that some independent person, either a retired Judge of the High Court or retired District Judge might be appointed to act as arbitrator so as that the dispute could be resolved by an independent person. The petitioner expressed his apprehension that he would not get proper justice from the officer of the Department, more so when it was manifest enough from the attitude of the departmental officers as to how far the delaying tactics could go.