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TMI Blog1993 (10) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor) and the Appellant (Public Works Department of the State of West Bengal) the Chief Engineer nominated a Superintending Engineer as arbitrator in accordance with Clause 25 of the agreement, relevant part of which runs as under: Except where otherwise provided in the contract all questions and disputes shall be referred to the sole arbitration of the Chief Engineer of the department. Should the Chief Engineer be for any reason unwilling or unable to act as such arbitrator, such questions and disputes shall be referred to an arbitrator to be appointed by the Chief Engineer". When despite 59 sittings the proceedings did not come to an end and the arbitrator entertained certain applications of the Appellant at a belated stage the Respondent sought his resignation for legal misconduct. The application was decided by the arbitrator by a detailed order with following observations: I have given my opinion that there has been no misconduct on my of the grounds before me by the learned claimant yet I am of the opinion justice delayed is justice denied and hence in this case there has been delay and the process in which the learned Advocate of both the parties are leading and pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the department. May be the department might have been advised, that the finality of the award could be subject to decision of this appeal as if the appointment of the next arbitrator is held to be invalid the proceedings consequent to it shall fall automatically. 4. To decide if the court was justified in assuming jurisdiction to appoint another arbitrator as the arbitrator appointed by the Chief Engineer under Clause 25 refused to act it is necessary to examine scope of Section 8 (i)(b) of tire Arbitration Act which reads as under: Section 8(i): In any of the following cases: (a) .... (b) If any appointed arbitrator or umpire neglects or refuses to act, or is incapable of acting, or dies, and the arbitration agreement, does not show that it was intended that the vacancy should not be supplied and the parties or the arbitrators, as the case may be, do not supply the vacancy my party may serve the other panties or the arbitrators, as the case may be, with a written notice to concur in the appointment or appointments or in supplying the vacancy. This provision vests the Court with supervisory jurisdiction to interfere with relationship between the parties and the arbit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han Ghosh AIR 1937 Cal 523 the High Court held that even when the arbitrator was not willing to proceed unless his fees were paid in advance it was refusal to act. Inaction by the arbitrator or inordinate delay in rendering the award are yet some of otter reasons due to which courts have raised an inference that the arbitrator refused to act. (See Manohar Singh Sahay & Co. v. Jogendra Singh AIR 1984 Pat 31, State of U.P. v. Sardul Singh AIR 1985 All 67, Gajanand Sita Ram v. Phul Chand Fetch Chand AIR 1930 All 675. The parties appoint an arbitrator by consent and he undertakes to decide the dispute out of his free will. He may withdraw his consent expressly or may act in a manner giving rise to inference that he was not willing to act any more. In either case the basic principle is that the arbitrator cannot be forced to act. But such an inference should not be readily raised. The courts primary concern should be to uphold the arbitration. But once the court is satisfied that the arbitrator has refused to discharge his obligations then it has statutory duty to intervene and act in accordance with Section 8(1)(b) of the Act. From the order of the arbitrator extracted earlier what is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad refused to act then the agreement clause stands exhausted. And it is for the Court to intervene and appoint another arbitrator under Section 8(1)(b), If arbitration agreement does not show that it was intended that the vacancy shall not be supplied. That is the agreement should not debar any further arbitration. If it is provided in the agreement that if the arbitrator appointed in accordance with the agreement refuses to act then the dispute shall be resolved by another arbitrator, there is an end of the matter. But if the agreement does not show this then the next arbitrator can be appointed by the Court only. The expression used in the Sub-section is clear indication that the court is precluded from exercising its power only if the parties intended that the vacancy should not be filled. In other words the court shall exercise jurisdiction to appoint another arbitrator except where it is specifically debarred from doing so. The word 'show' used in the clause appears to be significant. It in fact furnishes key to the construction of the expression. Mere neglect or refusal to act alone is not sufficient to empower the court to intervene. The agreement must not further sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If no such intention could be culled from the arbitration clause, the Court could supply the vacancy'. It is thus settled that even where an authority is named by office to be the sole arbitrator but he refuses to act then the jurisdiction to appoint another arbitrator vests in the Court. Since Clause 25 of the agreement extracted earlier does not indicate that the parties did not intend to supply the vacancy the Court in our opinion rightly assumed jurisdiction under section under Section 8(1)(b) to appoint another arbitrator. 7. Basis for assuming such jurisdiction, as stated earlier, is that the clause is rendered inoperative. Where the agreement provides for appointment of a specific person either by name or by designation and that person refuses to act then the question of appointing him again cannot arise. Refusal by such a person results in the agreement clause ceasing to operate. When two parties agree for appointment of 'A' or 'B' by name or designation and the person so named refuses to act then the agreement shall be deemed to have exhausted itself. The person so named having refused to act he cannot be asked again to arbitrate. That would be contra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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