Judgment :

Arindam Mukherjee, J.

I. Nature of application:-

This is an application by the contractor seeking Court’s intervention to terminate the mandate of the Arbitrator under the provisions of Section 14 (1) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 1996 Act) in an arbitration proceedings where an officer of the CPWD, the Principal is the appointing authority and has appointed an Arbitrator exercising such authority on the ground of ineligibility of the arbitrator to enter into reference and adjudicate in view of the provisions of section 12 (5) read with the seventh schedule of the said Act incorporated by the 2015 Amendment Act and to appoint a substitute arbitrator in its stead.

II. Facts of the Case: -

1) The petitioner, M/S. Salcon Engineers and Fabricators Pvt. Ltd., is a government contractor enlisted as Class I (Civil) contractor with the Andaman Public Works Department (in short APWD). The petitioner entered into an agreement with the respondent for the work of “Construction of New Medical College at Port Blair; Sub Work: Development of site for Administrative Block, Science Block, Type –IV, Type V, Type VI and Professor Hostel at the new Medical Campus” to be completed within six months for the amount of Rs.7,99,91,956/- (hereinafter referred to as the said agreement). Incorporated in the said agreement is Clause 25 of General Conditions of Contract, 2014 which is an arbitration agreement for adjudication of any dispute through arbitration. The said arbitration clause is set out hereunder for convenience:-

“Except where otherwise provided in the contract, all questions and disputes relating to the meaning of the specifications, design, drawings and instructions here-in before mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions, orders or these conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the cancellation, termination, completion or abandonment thereof shall be dealt with as mentioned hereinafter:

(i) If the contractor considers any work demanded of him to be outside the requirements of the contract, or disputes any drawings, record or decision given in writing by the Engineer-in-Charge on any matter in connection with or arising out of the contract or carrying out of the work, to be unacceptable, he shall promptly within 15 days request the Superintending Engineer in writing for written instruction or decision. Thereupon, the Superintending Engineer shall give his written instructions or decision within a period of one month from the receipt of the contractor’s letter.

If the Superintending Engineer fails to give his instructions or decision in writing within the aforesaid period or if the contractor is dissatisfied with the instructions or decision of the Superintending Engineer, the contractor may, within 15 days of the receipt of Superintending Engineer’s decision, appeal to the Chief Engineer who shall afford an opportunity to the contractor to be heard, if the latter so desires, and to offer evidence in support of his appeal. The Chief Engineer shall give his decision within 30 days of receipt of contractor’s appeal. If the contractor is dissatisfied with this decision, the contractor shall within a period of 30 days from receipt of the decision, give notice to the Chief Engineer for appointment of arbitrator on prescribed proforma as per Appendix XV, failing which the said decision shall be final binding and conclusive and not referable to adjudication by the arbitrator.

(ii) Except where the decision has become final, binding and conclusive in terms of Sub Para (i) above, disputes or difference shall be referred for adjudication through arbitration by a sole arbitrator ap