Gauhati High Court
Page No.# 1/4 vs The Union Of India And 4 Ors on 18 November, 2024
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/4
GAHC010226392024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Arb.P./46/2024
M/S NIRAJ CEMENT STRUCTURALS LTD. AND ANR
HAVING ITS REGISTERED OFFICE AT NIRAJ HOUSE, SUNDER BAUG, NEAR
DEONAR BUS DEPOT, CHEMBUR, MUMBAI- 400088 AND IS REPRESENTED
BY ITS DULY AUTHORIZED REPRESENTATIVE SHRI. HUKIYE. N. TISSICA,
AGED ABOUT 59 YEARS, S/O- LT. NIHOZHE, R/O- HOUSE NO. 104,
ERALIBIL IN THE DISTRICT OF NAGALAND, ASSAM.
2: M/S NAGA CONSTRUCTION
HAVING ITS REGISTERED OFFICE AT NAGA SHOPPING ARCADE
DIMAPUR
NAGALAND AND IS REPRESENTED BY ITS PROPRIETOR SHRI. HUKIYE.
N. TISSICA
AGED ABOUT 59 YEARS
S/O- LT. NIHOZHE
R/O- HOUSE NO. 104
ERALIBIL IN THE DISTRICT OF NAGALAND
ASSAM
VERSUS
THE UNION OF INDIA AND 4 ORS.
REPRESENTED BY THE SECRETARY,
MINISTRY OF RAILWAYS,
RAILWAY BOARD, RAILWAY BHAWAN,
NEW DELHI.
2:THE GENERAL MANAGER/ CONSTRUCTION
OFFICE OF THE GENERAL MANAGER/CON.
NORTHEAST FRONTIER RAILWAY
MALIGAON
GUWAHATI- 781011.
3:THE CHIEF ADMINISTRATIVE OFFICER/CON-III
OFFICE OF THE GENERAL MANAGER/ CON
Page No.# 2/4
NORTHEAST FRONTIER RAILWAY
MALIGAON
GUWAHATI- 781011.
4:THE CHIEF ENGINEER/ CONSTRUCTION-VI
NORTHEAST FRONTIER RAILWAY
MALIGAON
GUWAHATI- 781011.
5:THE DEPUTY CHIEF ENGINEER/ CONSTRUCTION-VI
NORTHEAST FRONTIER RAILWAY
MALIGAON
GUWAHATI- 781011
Advocate for the Petitioner : MR G N SAHEWALLA, MS T J SAHEWALLA,MS G DUGAR,MS
K SARMA,MR M SAHEWALLA
Advocate for the Respondent : DY.S.G.I.,
BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
18.11.2024
Heard Mr. G.N. Sahewalla, learned Senior Counsel assisted by Mr. M.
Sahewalla, learned counsel for the petitioner.
The petitioner is before this Court seeking appointment of an arbitrator
under Section 116 of the Arbitration and Conciliation Act, 1996. It is submitted
that the petitioner was awarded a tender by the respondents and issued a letter
of acceptance dated 17.02.2021 for execution of the work.
Pursuant thereto, the contract agreement was entered by the petitioner
and under the said agreement there is a Clause 64(1) whereby it is prescribed
that if in the event of dispute arising between the parties the matter can be
resolved. It is submitted that pursuance to the contract was terminated and the
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petitioner therefore issued a notice under Clause 21 of the Arbitration and
Conciliation Act being notice dated 12 th August, 2024 calling upon the
respondents to withdraw by an arbitration. The respondents on the other hand
by communication dated 23.09.2024 informed the petitioner that the
appointment of an arbitration will be from the penal of the Railways and
accordingly requested the petitioner for a waiver under Section 12(5) of the
Arbitration and Conciliation Act. The petitioner, however, refused to waive and
ripe for appointment of an arbitrator and disagree to accept the nomination of
the arbitrator from the penal. The Railways however proceeded to appoint an
arbitrator and informed the petitioner by communication dated 21.10.2024.
Being aggrieved, the present writ petition has been filed and the learned
counsel for the petitioner has referred to the recent judgment of the Apex Court
rendered in Central Organization for Railway Electrification Vs. ECI SPIC SMo
MCML (JV), reported in 2024 SCCOnline SC 3129, whereby the majority view of
the Constitution Bench has held that in the event of there being no waiver
under Section 12(5) the employee cannot be proceed unilaterally to appoint an
arbitrator from their own penal.
Mr. K. Gogoi, learned Standing Counsel for the Railways submits that he
would like to complete his instructions in the matter.
Let the notice be issued returnable after two weeks.
Since the learned counsel represents all the respondents notices are
waived.
Extra copies be furnished within a period of two week.
The respondents shall file their objection if so advised.
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Matter be listed again on 4th of December, 2024.
JUDGE
Comparing Assistant
