An arbitrator cannot be removed on the ground of apprehension of bias if the award passed by the arbitrator in an earlier reference has been made a rule of the Court and confirmed by the High Court.

JUDGMENT :

R.C. Patnaik, J. - On the application filed by the opposite party, the Additional Subordinate Judge, Phulbani, having revoked the appointment of Sri B.N. Sahu, a retired Chief Engineer, as an arbitrator, by order dated 31-1-1980 passed in M.J.C. No. 53 of 1979, the Petitioner has appealed to this Court by way of revision.

2. The facts in brief:

The Petitioner undertook execution of "Construction of Main Dam and Mead regulator of Kakalbaki Minor Irrigation Project" in the district of Phulbani by executing an agreement No. 5 F-2 of 1972-73. Disputes having arisen, Sri D. Patra, a Superintending Engineer was appointed by the Chief Engineer as arbitrator under the provisions of Clause 23 of the agreement. Sri Patra, having delayed in entering into the reference, on motion by the Petitioner in M.J.C. No. 6 of 1978, was removed by the Additional Subordinate Judge, Phulbani, and Sri B.N. Sahu, a retired Chief Engineer, was appointed arbitrator by order dated 26-10-1978. Sri Sahu, the arbitrator entered into the reference and proceeded with the hearing of the case. During the pendency of the proceeding before him, the Petitioner filed an additional claim. It was agreed by the parties that the additional claim should be decided by the arbitrator' in a separate proceeding and the proceeding for the original dispute claim should be disposed of separately and early. Sri Sahu entered into the second reference on 17-9-1979 and the Petitioner filed his claim but the opposite party sought an adjournment for filing its objection. The arbitrator passed his award in the first reference and in due course the same was made a rule of the Court by the Additional Subordinate Judge in Title Suit No. 13 of 1979. An appeal carried to this Court by t he opposite party was dismissed on 10-10-1980 in Misc. Appeal No. 133 of 1980. The conclusion is that the award was not found to be tainted with any infirmity either by the trial Court or by this Court.

3. However, while the reference for the additional claim of Rs. 1,35,032.00 was pending adjudication before the arbitrator, the opposite party filed an application before the Additional Subordinate Judge for removal of Sri Sahu, the arbitrator. The grounds urged by the opposite party was that out of the total claim of Rs. 23,51,411.00 claimed by the Petitioner in the first reference, the arbitrator passed an award in favour of the Petitioner for Rs. 11,23,873,00 (including interest). In view of the huge amount and high rate of interest awarded by the arbitrator in the first reference, the opposite party apprehended that the said arbitrator would not act fairly and should be removed. The learned Additional Subordinate Judge comparing the value of the work done and paid, the amount claimed by the Petitioner, the amount for which the award was passed and the amount for which the additional claim was filed held:

...the contractor claimed quite a heavy amount before the arbitrator and got an award for an amount which he would not have got had he completed the project with all his men and material. Therefore the decision of the arbitrator is found to create an apprehension in the mind of the Petitioner that the case of the department would not be fairly dealt by the arbitrator in relation to the matters which are still pending for adjudication nor his decision would be judicious. This apprehension on the part of the Petitioner therefore entitles him to an order revoking the authority of the present arbitrator in as much as the same is indicative of bias on the part of the arbitrator towards the department.

4. On a short point this order could be quashed, namely that having regard to the fact that the award passed by the arbitrator in the first reference having already been made a rule of the Court which had been confirmed by this Court, it was not open to the Additional Subordinate Judge to make any comments on the merit/correctness of the first award. In that case the opposite party challenged the award by fi