Orissa High Court
Union Of India And Others vs Prabhat Kumar Mishra on 28 July, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
ARBA No.06 of 2014
(Through Hybrid mode)
Union of India and others .... Appellants
Mr. Gyanaloka Mohanty, Advocate
(Central Government Counsel)
-versus-
Prabhat Kumar Mishra .... Respondent
Mr. N. K. Jujharsingh, Advocate
CORAM: JUSTICE ARINDAM SINHA
ORDER
28.07.2022
Order No.
06. 1. Mr. Mohanty, learned advocate, Central Government
Counsel appears on behalf of appellants (Union of
India/Railway). He submits, his clients are aggrieved by order
dated 19th December, 2013, whereby claim nos.1 to 9, 11, 28,
29, 32 and 34 were remanded to the Tribunal for fresh
adjudication. He refers to paragraph 5 in impugned order and
submits, said claims were 'excepted matters' under clause 63
in general conditions of contract and correctly not adjudicated
by the Tribunal. He submits, said clause 63 provided further
that 'excepted matters' shall stand specifically excluded from
purview of the arbitration clause and shall not be referred to
arbitration. The Court below erred in remanding those claims.
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2. Mr. Jujharsingh, learned advocate appears on behalf of
respondent (claimant). He submits, the reference was made by
the employer in terms of sub-clause (3) (a) (ii) under clause
64. The employer appointed two arbitrators, who were
Gazetted Railway Officers. There was also an Umpire
appointed in terms of sub-clause (3) (b) under said clause 64.
The reference having been made by the employer on disputes
raised by his client, the employer could not thereafter turn
around and say that some of the claims referred came under
'excepted matters'.
3. Clause 63 provides for 'excepted matters'. In context of
contention made by respondent, it is seen that sub-clause (1)
(i) in clause 64 says that, inter alia, in event of dispute
between the parties, where Railway fails to make a decision
within a reasonable time, save the 'excepted matters', the
contractor, after 90 days but within 180 days of presenting his
final claim on disputed matters, shall demand in writing that
the dispute or difference be referred to arbitration. Court
presumes, this condition had been complied with.
4. Sub-clause (3) under clause 64 makes it clear that the
General Manager shall be the sole judge to decide whether or
not the issues involved are of a complicated nature. The
purpose is for constituting the Tribunal, with sole arbitrator or
by two arbitrators and an Umpire, depending on judgment of
the General Manager regarding nature of the disputes and
differences. It also appears that under sub-clause (1)(iii) under
clause 64 it has been provided that in event the contractor does
not raise claims and disputes within the time prescribed, he
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will be deemed to have waived his claims and the Railway
shall be discharged and released of all liabilities under the
contract in respect of those claims. Thereby it is clear that the
Railway had imposed as a condition, contingency of waiver
upon the contractor. It follows that when the Railway itself, on
judgment of the General Manager, referred disputes raised by
the contractor to the Tribunal for arbitration, any 'excepted
matter' that stood referred was to be adjudicated by the
Tribunal upon the Railway having waived its right to except
those matters from adjudication in arbitration. In the
circumstances, it is not necessary for Court to direct
respondent to take those claims as are alleged to be 'excepted
matters', to Court on settled law that a person cannot be
rendered remediless by contract. There is clear waiver on part
of the Railway in exercising its authority to firstly, rule on the
disputed claims, secondly, in judging complexity of the claims
for purpose of constitution of arbitral Tribunal and thirdly, in
referring all of them to arbitration.
5. Sub-section (4) in section 34, Arbitration and
Conciliation Act, 1996, prior to amendment effected in year
2015, stood as reproduced below.
"(4) On receipt of an application under sub-
section (1), the Court may, where it is appropriate
and it is so requested by a party, adjourn the
proceedings for a period of time determined by it
in order to give the arbitral Tribunal an
opportunity to resume the arbitral proceedings or
to take such other action as in the opinion of
arbitral Tribunal will eliminate the grounds for
setting aside the arbitral award."
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6. Direction made by impugned order appears to be in line
with above provision.
7. For reasons aforesaid impugned order is confirmed.
8. The appeal is dismissed.
(Arindam Sinha)
Judge
RKS
