JUDGMENT :

1. Heard Mr. S. Khound, learned counsel for the petitioner. Also heard Mr. B. Sarmah, learned Standing Counsel, N.F. Railway.

2. The present petition has been filed challenging the appointment of Arbitral Tribunal consisting of Shri Bhuvanesh Prakash Khare (respondent No.2) as Presiding Arbitrator, Shri Harsh Kumar and Shri P.K. Rai as Co-Arbitrators (respondent Nos.3 and 4) on various grounds including, firstly, that there is no arbitration agreement between the parties for referring any dispute for arbitration and secondly, that they being retired employees of the Railways, could not have been appointed as Arbitrators in view of the bar imposed under Section 12(5) of the Arbitration and Conciliation Act, 1996.

3. It has been submitted by Mr. Khound, learned counsel for the petitioner that when this petition was moved on 15.02.2019, this Court passed an interim order on the same day on 15.02.2019 to the effect that until further orders, there shall be stay of arbitration proceeding before the arbitral tribunal comprising of respondent Nos.2, 3 and 4. Unfortunately, in spite of the said stay order passed by this Court, the arbitration was proceeded and the Tribunal made the award on the same day on 15.02.2019.

4. It has been submitted by Mr. Khound that since the arbitrators appointed have no competency inasmuch as there was no arbitration agreement as well as they were retired employees of Railway, they could not have been appointed as arbitrators and as such, the entire arbitration proceeding including the award will be in nullity in law.

5. Mr. B. Sarmah, learned Standing Counsel, N.F. Railway, on the other hand, submits that the petitioner had duly participated in the arbitration proceeding and also raised the issue of the competency of the arbitrators before the Arbitral Tribunal. He submits that however, the Arbitrators had correctly rejected the pleas of the petitioner and passed the award on 15.02.2019 before the interim stay order was granted by this Court. It has been submitted that though the award was passed on 15.02.2019, it was passed around 12 noon before the Court passed the interim order, and thus, not in violation of this Court’s order.

6. Mr. B. Sarmah submits that, under the circumstances, if the petitioner is aggrieved by the arbitration proceeding or the award, he would be at liberty to challenge the same before the appropriate forum as envisaged under Section 34 of the Arbitration and Conciliation Act, 1996, which he has not yet done.

7. Mr. Khound, learned counsel for the petitioner, however, submits that since the arbitration was proceeded in spite of the stay order passed by this Court which was confirmed by the subsequent order dated 24.06.2019, the arbitral proceeding and the award is nullity in law and as such, this Court can proceed to appoint the Arbitrator in terms of Section 11 of the Arbitration and Conciliation Act, 1996.

8. This Court has considered the rival contentions of the parties.

9. From the above, it is quite apparent that the petitioner has challenged the jurisdiction and competency of the Arbitral Tribunal consisting of respondent Nos.2, 3 and 4 on the ground, firstly, that there is no arbitration agreement between the parties to refer the dispute to arbitration and secondly, that as the members of the Arbitral Tribunal being ex-employees of the Railways, they could not have been appointed as Arbitrators in view of the bar imposed under Section 12(5) of the Arbitration and Conciliation Act, 1996 and as such, since the entire arbitration proceeding is nullity in law, hence, there is no bar for this Court to appoint a fresh arbitrator by invoking Section 11 of the Arbitration and Conciliation Act, 1996.

10. This Court has noted the fact that the petitioner had participated in the arbitration proceeding though under protest and the present petition has been filed at a later stage after the arbitration proceedings had commenced. Law is now settled that Arbitral Tribunal also