The retirement of the appointed Arbitrator and undue delay in conducting the proceedings can amount to a withdrawal from the arbitration, justifying the termination of the arbitrator's mandate and the appointment of a new Arbitrator.

ORDER

1. This petition is filed by the contractor seeking for appointment of an Arbitrator under Section 11(6) of the Arbitration & Conciliation Act, 1996 (for short the Act). The relevant facts are stated for the purpose of deciding the rival legal contentions urged in this case with a view to find out as to whether the petitioner is entitled for appointment of an Arbitrator.

2. The undisputed fact is that there is an agreement between the parties and also there is a dispute with regard to the appointment of Arbitrator as the opposite party-Corporation appointed his own officer as Arbitrator on the basis of the Arbitration clause No. 44 of the agreement between the parties. As per Ext. F/2 it is seen that Sri Shivamoy Ghose, the General Manager of the Corporation was appointed as Arbitrator which was accepted by the petitioner and the petitioner was asked to file his claim. Proceedings were conducted on 26-7-2005 and on that day it was adjourned to 27-7-2005. Again on that day the proceeding was adjourned to 22 & 23rd September, 2005 at NPCC Bhubaneswar as could be seen from the FAX message dated 3-1-2007 to Annexure-A/2. During the pendency of the proceeding he retired from his service. Vide Annexure-A/2, he has written letter to the Managing Director of the Corporation stating as follows :

I was appointed as sole arbitrator for the above mentioned arbitration in Feb, 2005. I had started the proceedings as will be evident from the synopsis enclosed. I could not however continue the same and bring it to the logical conclusion because I had retired on 30-9-2005.

I would be glad to render my services and complete my duty as an arbitrator if I am reimbursed for the same as below :

1. Professional Charges 1000.00 per proceeding

2. T. A. DA and incidentals As per actual subject to en-

(if required to go out of titlement as Ex. GM Chittorgarh, Raj) NPCC

3. Clerical charges 100.00 per sitting

The above expenses will have to be borne by both the parties equally. If you are kindly agreeable to the above proposal I would request Zonal Manager, NPCC, Guwahati to send me the files which I had handed over while being relieved from my office.'

3. The proposal given by the arbitrator was accepted by the Corporation but not accepted by the contractor-petitioner.

Before this letter was sent to the Chairman, the petitioner has approached this Court by filing this petition under Section 11(6) placing reliance upon sections 14(1)(a) & (b) of the Act contending that the arbitrator appointed by the Corporation has in fact on account of his retirement inordinately delayed in conducting the proceedings, is a reason for the failure on the part of the arbitrator to conduct the arbitration proceeding and, therefore, he is withdrawn from office is a termination of the arbitrator appointed by the Corporation. Learned counsel for the petitioner placed reliance upon the decision of the Apex Court in Union of India v. M/s. Singh Builders Syndicate, 2009 AIR SCW 3374 : (AIR 2009 SC 1795 (Supp)).

Therefore, Mr. Mohanty, learned counsel for the petitioner has prayed for appointment of a sole Arbitrator as the power of the Chairman-cum-Managing Director of the Corporation is lost since the Arbitrator appointed by him on account of the undue delay and retirement from the service is evidenced for not conducting the proceedings from July, 2005 till A/2 dated 8-1-2007. Therefore, the appointment of the arbitrator by the Managing Director of the Corporation is terminated. Further the learned counsel has placed reliance on an unreported decision of this Court dated 30-7-2010 rendered in ARBP No. 18 of 2009 (Bhikari Charan Sahu v. East Coast Railway), wherein the question whether the employer has got power, with reference to clause 64 of the agreement, to appoint his own officer to arbitrate the dispute between the parties, came for consideration. This Court while examining the power under Section 11(6) of the Act with reference to the constitutional Bench decision of