The court clarified that in cases falling within the scope of arbitration and arbitrable disputes, an applicant can move an application under section 11(6) of the Arbitration and Conciliation Act for the appointment of an Arbitrator.

ORDER :

1. Through this Arbitration Application, M/s Diksha Enterprises has approached this Court for appointment of an Arbitrator in terms of the mechanism for settlement of disputes provided under the Indian Railways Standard General Conditions of Contract, July 2014 (in short GCC-14) which forms part of Notice No. W-584/DHN/2014-15/Open/74/2 dated 19th March 2015.

2. The aforesaid tender notice was issued by the East Central Railway for “Renovation of Sounda-B (NCDC) Private Siding under Deposit terms for CCL; track renewal and other ancillary work of Jarandih-I Private Siding at Jarandih under deposit terms for CCL and like works at Bhandaridah as well as some works for extension of New Selected Dhori Private Siding and Renovation of Central Sounda Private Siding.” It is not in dispute that by a communication dated 17th July 2015 some of the works for which the applicant has submitted bid dated 13th May 2015 was accepted and an agreement dated 12th November 2015 was executed by the Divisional Engineer (Siding) E.C. Railway, Dhanbad (for and on behalf of the President of India).

3. The disputes settlement mechanism under the GCC-14 is provided under Clauses-63 and 64 of GCC-14 under which appointment of the Arbitrator is specifically dealt with under Clause-64(3).

4. Clause-64(3)(a)(ii) of GCC-14 which is relevant for the present purpose provides for constitution of the Arbitral Tribunal to consist of a panel of three Gazetted Railway Officers or two Railway Gazetted Officers not below JA Grade and a retired Railway Officer not below the rank of SAG officer as the Arbitrators.

5. Clause 64(3) of GCC-14 reads as under:

“64.(3) (a)(i) In cases where the total value of all claims in question added together does not exceed Rs. 25,00,000 (Rupees twenty five lakh only), the Arbitral Tribunal shall consist of a Sole Arbitrator who shall be a Gazetted Officer of Railway not below JA Grade, nominated by the General Manager. The sole arbitrator shall be appointed within 60 days from the day when a written and valid demand for arbitration is received by G.M. 64.(3) (a)(ii) In cases not covered by the Clause 64(3)(a) (i), the Arbitral Tribunal shall consist of a Panel of three Gazetted Railway Officers not below JA Grade or 2 Railway Gazetted Officers not below JA Grade and a retired Railway Officer, retired not below the rank of SAG Officer, as the arbitrators. For this purpose, the Railway will send a panel of more than 3 names of Gazetted Railway Officers of one or more departments of the Railway which may also include the names of retired Railway Officers empanelled to work as Railway Arbitrator to the contractor within 60 days from the day when a written and valid demand for arbitration is received by the GM.

Contractor will be asked to suggest to General Manager at least 2 names out of the panel for appointment as contractor's nominee within 30 days from the date of dispatch of the request by Railway. The General Manager shall appoint at least one out of them as the contractor's nominee and will, also simultaneously appoint the balance number of arbitrators either from the panel or from outside the panel, duly indicating the presiding arbitrator from amongst the 3 arbitrators so appointed. GM shall complete this exercise of appointing the Arbitral Tribunal within 30 days from the receipt of the names of contractor's nominees. While nominating the arbitrators, it will be necessary to ensure that one of them is from the Accounts Department. An officer of Selection Grade of the Accounts Department shall be considered of equal status to the officers in SA grade of other departments of the Railway for the purpose of appointment of arbitrator. 64.(3) (a)(iii) If one or more of the arbitrators appointed as above refuses to act as arbitrator, withdraws from his office as arbitrator, or vacates his/their office/offices or is/ are unable or unwilling to perform his functions as arbitrator for any reason whatsoever or dies or in the opinion of the