Punj Lloyd Limited vs West Bengal Medical Services Corporation Limited

The Court : Let affidavit of service along with the Notice of Motion filed on behalf of the petitioner be kept on record. The instant application has been

filed by the claimant in an ongoing arbitration proceedings under Section 14 of the Arbitration and Conciliation Act, 1996 for, inter alia, that the

mandate of the Learned Arbitrator be terminated.

I am told that the arbitration has been fixed today at 5 o’clock and urgent orders are hence called for. An earlier application under Section 14 of

the 1996 Act had been filed by the petitioner herein for similar relief at the stage of the witness action in the arbitration proceedings. After considering

the submissions made by the parties, the Learned Judge was pleased to pass that the following directions:

“ i) There shall be an interpreter who would interpret the answers of the petitioner’s second witness.

ii) The cross-examination of the petitioner’s second witness shallbe concluded within three arbitral sittings to be held in the month of January,

2018.

iii) The arbitrator shall ensure that the evidence of the respectivewitnesses of the parties, as well as the minutes of the arbitral sitting is made over to

the parties at the end of each arbitral sitting. In this regard, the petitioner shall arrange for the necessary infrastructure namely, a computer and the

printer.

iv) After the conclusion of the evidence of the petitioner’s secondwitness, the respondent shall forthwith start to adduce evidence and produce

their witnesses before the arbitrator.

v) The evidence of the respondent’s witnesses should be concludedwithin the month of April, 2018 and the parties shall conclude their respective

oral arguments before the learned arbitrator, during the arbitral sittings to be held in the month of May and June, 2018.

vi) The arbitrator shall not entertain any prayer for adjournment atthe instance of either of the parties, except under compelling circumstances.

vii) During the course of the evidence of the respective witnesses ofthe parties, if the arbitrator refuses either to record any answer of the respective

witnesses or to admit any document produced by any of the parties in the evidence, he shall record the reasons for such decision.

viii)The arbitrator shall make and publish his Award within the month of August, 2018.â€​

The said application was disposed of on the basis of the above directions. Mr.Pratap Chatterjee, Senior Counsel and Mr.SarVapriyo Mukherjee,

Counsel appearing on behalf of the petitioner submit that various sittings have been held after the order dated 18th December, 2017 and the last sitting

has held on 4th April, 2018. The evidence of the parties has been completed and the matter has been posted today for commencement of arguments.

It is submitted that none of the directions passed by this Court in December, 2017 have been complied with by the Learned Arbitrator.

Paragraph 8 of the petition sets out the grounds on which the Learned Arbitrator is sought to be removed. It appears from the said grounds that

besides being incapable of dictating Minutes in the presence of the parties, what is ultimately dictated is also unintelligible. It is contended that the

Learned Arbitrator passes orders on the next date from loose chits of paper which are never passed on the date of the hearing itself.

Counsel has relied on several Minutes and recordings in the arbitration proceedings which show that adjournments requested for by Counsel appearing

for the claimant (the petitioner before me) have been refused and the Learned Arbitrator has further refused to record submissions made by Counsel

in this regard. The Ld. Arbitrator has also made certain unpalatable remarks against Counsel ; “The instant conduct of Ld. Advocate of Punj Lloyd

Limited is abusive and beyond the conception of gentilityâ€​.

It has also been submitted that the Learned Arbitrator has frequently shown indulgence to the respondent appearing before him including the matters

of granting time for adducing evidence whereas similar prayer made by the petitioner has been refused. Besides the above procedural irregularities,

Counsel submits that there have been many other instances during the arbitration proceedings which gives rise to a perception of bias on the part of

the Learned Arbitrator against the petitioner. Counsel submits that it may not be possible to adduce evidence of such bias, but the conduct of the

Learned Arbitrator and the manner in which the proceedings are being continued would show that it is unlikely that the petitioner would be treated

equally and at per with the respondent as mandated under Section 18 of the Act.

Mr.Dr.Chapales Bandyopadhyay, Counsel appearing for the respondent submits that the petitioner does not have a case for terminating the mandate

of the Learned Arbitrator under Section 14 since no clear case of incompetence or bias has been made out in the petition. Counsel relies on specific

statement in paragraph 8 of the petition that the instance of the alleged bias has been given on the basis of a presumption. He further submits that

identical prayers had been made by the petitioner in the earlier application filed before Justice Ashis Kumar Chakraborty which had not been granted.

Counsel questions the validity of Section 14 of the 1996 Act but is unable to produce any decision today in support thereof.

I have considered the submissions of Counsel appearing for the parties. From the Minutes and the recordings shown, I believe that there is a strong

case for passing directions against the Learned Arbitrator. Without going into the merits of the matter, the apprehension of a party who raises the

spectre of bias against an adjudicator cannot also be ignored. The instances cited show that the Learned Arbitrator, if not prompted by actual or

perceived bias, has acted in a manner unbefitting of a person who is a quasi-judicial authority under the 1996 Act. The least that can be expected is

that an Arbitrator will conduct the proceedings in a manner so that the parties before him are confident of a fair and just adjudication. The Learned

Arbitrator cannot show any leniency towards a particular party and bestow favours which are not granted to the other party under similar

circumstances. But most significantly, the conduct reflected from the Minutes annexed to the petition, reveal that most of the directions passed in the

order dated 18th December, 2017 have not been adhered to by the Learned Arbitrator.

However, despite almost being convinced of the unreasonable manner in which the Learned Arbitrator has conducted herein, at least in the hearings

held post-December, 2017, I cannot ignore the fact that the next sitting has been scheduled at 5 pm today and the matter was mentioned today

morning itself for appropriate orders. Although I have been told that the petitioner could not take steps because of the cease work, appropriate orders

could have been prayed for even during the cease work or immediately after 30th April, 2018 when the Court resumed work, if the removal of the

Learned Arbitrator had been that urgent.

In the facts and circumstances as stated above, Counsel for the petitioner is directed to communicate this order to the Learned Arbitrator today at the

commencement of the sitting. Since this Court cannot pass an order starting the arbitration under the provisions of the 1996 act, the Learned

Arbitrator is directed to comply with the directions passed in the earlier order of December, 2018 and to complete the arguments within the time

indicated in the said order. The Learned Arbitrator is requested to take note of not only the directions passed in the earlier order but the observations

passed by this Court today and conduct the proceedings in future in a manner which appears to be just and fair to both the parties before him.

As prayed for by Counsel appearing for the petitioner, let the matter be listed before preparation and publishing of the Award. Further, let all hearings

after today be videographed and all recording and orders passed in the presence of both the parties. List this matter on the reopening date, i.e., 4th

June, 2018 to apprise the regular Bench Counsel of the status of the arbitration proceedings. By consent of the parties let the matter be treated as in

day’s list.