Judgment :- O.P.No.348 of 1987 was filed by the petitioner K.Chellamuthu, under Sec.14(2) the Indian Arbitration Act against the Superintending Engineer (Construction) Scheme, Madras-1 and the arbitrator to direct the second respondent arbitrator to arbitration award dated 29.5.1987 along with the documents, pleadings etc., into court. 2. O.P.No.109 of 1988 was filed by the petitioner in O.P.No.348 of 1987, under Secs.30 33 of the Indian Arbitration Act to set aside the award dated 29.5.1987 passed by second respondent arbitrator and for costs. 3. O.P.No.608 of 1990 filed under Sec.30 of the Arbitration Act, 1940, by the Superintending Engineer (Construction), A.R.C. Scheme against the petitioner in O.P.No.348 of 1987 and the arbitrator to set aside the award passed by the arbitrator dated 29.5.1987 and communicated in letter No.T3/87/326, dated 17.6.1987. The other facts which are relevant for the disposal of all the above three O.Ps. are as follows. 4. The petitioner Chellamuthu had entered into an agreement at Madras on 23.8.1976 with the Superintending Engineer (Construction), A.R.C. Scheme, for the construction of a godown for the Palani Co-operative Marketing Society. second respondent namely the Superintending Engineer, Public Works Department, Circle, is the person named as the arbitrator in the said agreement. The petitioner C.S.No.465 of 1977 on the file of this Court in view of certain disputes in between petitioner and the first respondent. This Court referred the dispute to the second respondent for arbitration. The arbitrator passed an award dated 5.1.1979 and dismissed the claim petitioner filed O.P.No.417 of 1980 to direct the arbitrator to file the original award filed another O.P.No.51 of 1985 to have the said award set aside on the ground misconduct. 5. Mr.Justice Kader by order dated 29.7.1986 allowed the O.P. and remanded the matter the arbitrator for fresh disposal in the light of observations made in the said order. learned Judge has also fixed six months as time for submitting the award. The learned held that, “It is well settled that an arbitrator has no power to dismiss the reference for prosecution. He can only close it by making an award. learned Judge has also fixed six months as time for submitting the award. The learned held that, “It is well settled that an arbitrator has no power to dismiss the reference for prosecution. He can only close it by making an award. Inasmuch as the second respondent arbitrator has not passed an award on the merits of the case, his order, dismissing application of the petitioner and sending the file to the court, is not sustainable in matter has to go back to him for fresh disposal.” The second respondent arbitrator passed an award dated 29.5.1987 and filed the this Court.To set aside the said award O.P.No.109 of 1988 was filed in this Court. 6. Likewise, O.P.No.608 of 1990 was filed by the State to set aside the award. According the petitioner in O.P.No.608 of 1990, the award is liable to be set aside and inasmuchas arbitrator has not taken into consideration the right of the department to adjust the and W.H.A., which is against the rules and M.D.S.S. and also the tender condition. The observation of the rule and granting award in violation of condition of the contract amount misconduct on the part of the arbitrator and the award is therefore liable to be set that extent. It is further stated that the E.M.D. amount should not have been ordered refunded especially when the arbitrator has found that the breach has been committed the contractor. 7. I have heard Mr.K.Bijai Sundar, the learned counsel for the contractor the Addl. Government Pleader for the State. Mr.Bijai Sundar has pointed out infirmities in the award passed by the arbitrator. According to the learned counsel, arbitrator did not observe the principles of natural justice as a quasi-judicial authority has pointed out several instances wherein the arbitrator had acted arbitrarily against principles of natural justice. The following are the instances pointed out by the counsel for the contractor: “1. Receipt of private communications from the first respondent regarding the subject of the reference. 2. Not giving the petitioner a reasonable opportunity to prove his case in its entirety. 3. Failure to lay down the procedure for the conduct of the proceedings. 4. Failure to follow the adversary procedure in conducting the proceedings. 5. Receipt of evidence touching the subject matter of the reference behind the petitioner back. ” 8. 2. Not giving the petitioner a reasonable opportunity to prove his case in its entirety. 3. Failure to lay down the procedure for the conduct of the proceedings. 4. Failure to follow the adversary procedure in conducting the proceedings. 5. Receipt of evidence touching the subject matter of the reference behind the petitioner back. ” 8. The arbitrator has also failed to pass the award within the period fixed by this Court within the extended period namely 29.5.1987. A reading of the award, to my mind clearly indicate that the arbitrator had acted in a biassed manner and in some instances haphazard manner. It is seen from the records that the petitioner/contractor submitted claim petition on 18.9.1986 with the arbitrator with the copy of award to the respondent. The arbitrator after a lapse of one month, returned the claim petition with request that the petitioner should approach Civil Court in as much as the claim exceeds Rs.50,000. In the said letter, the arbitrator has referred to two letters dated 28.10.1986 6.10.1986 purported to have been sent by the first respondent. It is an admitted fact the copies of the two letters referred to above were not forwarded to the petitioner either the first respondent or by the arbitrator. Again, the contractor re-submitted his petition alongwith his letter dated 20.11.1986 which was acknowledged by the arbitrator a letter of even date. The arbitrator by his letter dated 11.12.1986 directed the respondent to file the counter statement along with the original agreement, plans estimates. Again the arbitrator by his letter dated 5.1.1987 gave extension to the first respondent to file counter statement upto 9.1.1987. In the said letter reference has been made to the dated 17.12.1986 sent by the first respondent. Here again, the copy of the said letter 17.12.1986 was not forwarded to the petitioner. Thereafter, the second respondent arbitrator by his letter dated 18.2.1987 fixed preliminary hearing on 4.3.1987. The petitioner appeared before the arbitrator and apprised him of the fact that the time for passing award has been fixed by this Court had already expired and requested the arbitrator obtain orders from this Court for further extension of time. On the request of the petitioner, the matter was adjourned to 4.3.1987. A perusal of this letter dated 4.3.1987 will show the above facts were confirmed by the petitioner’s side letter. On the request of the petitioner, the matter was adjourned to 4.3.1987. A perusal of this letter dated 4.3.1987 will show the above facts were confirmed by the petitioner’s side letter. The arbitrator by his dated 24.4.1987 fixed the hearing on 10.30 A.M. of 20.5.1987 at Madurai. But, till petitioner did not receive any counter statement from the first respondent, which the petitioner to write a letter on 4.5.1987 requesting the arbitrator for a copy of the statement The arbitrator by his letter dated 8.5.1987 sent a copy of the counter It is very evident from the copy of the counter statement that the same has been the first respondent as early as on 30.10.1986 with the arbitrator. I have been through the entire correspondences and the relevant letters and communications learned counsel for the petitioner. The above sequences of letters and the conduct the arbitrator would categorically and explicitly disclose that the arbitrator and respondent had private communications with each other in connection with the matter of the dispute behind the back of the petitioner/contractor. Even on 25.9.1987, is the only hearing, the arbitrator has held a curious procedure. It was pointed out learned counsel for the petitioner from the records and also that on 2.5.1989 he before the arbitrator along with his party and filed a rejoinder to the counter statement petitioner’s counsel also pointed out the practice in not sending the copies of the simultaneously to the petitioner In my view, the non-compliance of the copy of the statement to the petitioner in time is wholly illegal and against the principles of justice. It is further seen from the records that the hearing on 25.9.1987 was not in all fairness and the petitioner’s counsel requested for the copies of the enclosures along with the claim. However, the respondent refused to furnish the same. The was informed that the matter will be decided on the strength of the copies of the filed by the petitioner along with the claim petition. The learned counsel for the has also pointed out how the arbitrator has conducted himself and the proceedings the course of the proceedings on 20.5.1987, the date of the preliminary hearing. It by the learned counsel for the petitioner that the arbitrator refused to hear the and the witnesses. The learned counsel for the has also pointed out how the arbitrator has conducted himself and the proceedings the course of the proceedings on 20.5.1987, the date of the preliminary hearing. It by the learned counsel for the petitioner that the arbitrator refused to hear the and the witnesses. He did not give a fair opportunity to produce the witnesses nor reasonable opportunity to prove his case in its entirety. It is stated by the learned for the petitioner that he was not permitted to deal with the facts of the case. The letters which had exchanged between the first respondent and the second insisted that the claims alone should be dealt with. The learned counsel for the invited my attention to the statement made in para 16 and 17 of O.P.No.109 of 1988is extracted hereunder. “16. The personal hearing commenced around 11 a.m. and around 12 noon, respondent insisted that the petitioner should close his submissions within 15 thereof, since he wanted to attend a meeting elsewhere. The petitioner’s advocate that the 2nd respondent that he would continue his submissions after lunch, to convenience of the second respondent, and the request was turned down, and ultimately petitioner was forced to close his submissions around 12.30 p.m. 17. The petitioner states that his Advocate wanted to hear the submissions of respondent for him to give a reply and also the evidence of the 1st respondent on relies upon. The first respondent did not even open his mouth and the 2nd respondent acting on behalf of the 1st respondent informed the petitioner, that the 1st respondent no submissions to make except for the counter which had already been filed. respondent did not prepare the minutes of the proceedings to enable the petitioner the same.” 9. In the counter affidavit, except the bald denial with regard to the averments made in para 16 and 17, it is only stated that the statement the petitioner above referred to are baseless. I have no reason to doubt or disbelieve disregard the representation made by the learned counsel for the petitioner. In my in the absence of any specific denial by the arbitrator the 2nd respondent, the denial by the first respondent need not be looked into. There is no reason for the counsel appeared before the arbitrator and also before me to say something which happened. I believe and accept his version. 10. In my in the absence of any specific denial by the arbitrator the 2nd respondent, the denial by the first respondent need not be looked into. There is no reason for the counsel appeared before the arbitrator and also before me to say something which happened. I believe and accept his version. 10. My view is also confirmed by the shape and the manner in which the award was The arbitrator who has to act fairly has adopted a curious procedure and conducted proceedings in an irregular and slip-shod manner. In my opinion, the award is wholly invalid and perverse and the arbitrator has committed a grave error and mis-himself and the proceedings warranting the interference with the entire award. 11. Another instance pointed out by the learned counsel for the petitioner also consideration. The learned counsel for the petitioner states that even before the published, the petitioner sent a letter dated 24.7.1987 representing his protest against misconduct of the arbitrator. After the expiry of several days from 20.5.1987, respondent has chosen to send a reply statement to the rejoinder filed by the along with a bunch of eight exhibits. The award was ultimately published on 8.6.1987 after the expiry of the period upto which the petitioner has given adjournment of the pass award. The arbitrator had dealt with the exhibits furnished by the first respondent, copies of which admittedly were not given during the enquiry. They were furnished petitioner after several days from the date of the preliminary enquiry conducted 20.5.1987. The award would also disclose that the enquiry conducted by the arbitrator 20.5.1987 was only a preliminary enquiry. Even in the award, the arbitrator has that the enquiry conducted by him on 20.5.1987 was only a preliminary enquiry. This stated in several places in the award. The arbitrator has also referred to certain furnished by the first respondent, copies of which were admittedly no t forwarded petitioner either on 20.5.1987 or at any point of time before that date. The petitioner to know about this only subsequent to the passing of the award. He received measurements book, original estimate, original agreement, circular office file numbers), Divisional Office files (4 in Nos.) and that the arbitrator had conducted enquiry and received the evidence from the first respondent behind the back petitioner and had proceeded to pass the award. 12. The petitioner to know about this only subsequent to the passing of the award. He received measurements book, original estimate, original agreement, circular office file numbers), Divisional Office files (4 in Nos.) and that the arbitrator had conducted enquiry and received the evidence from the first respondent behind the back petitioner and had proceeded to pass the award. 12. In my opinion, the petitioner has made out a prima facie case for interference with award. It is evident on the basis of the award from the aforesaid facts that the arbitrator mis-conducted himself. He had also identified himself with the first respondent officers. Hence the learned counsel for the petitioner requests that the arbitrator appointed in the agreement should be removed and an independent arbitrator should be appointed go into the matter de novo. 13. The Additional Government Pleader who argued the case has not disputed the statement made by the counsel for the petitioner, but only submitted that the arbitrator has misconducted himself and the proceedings. According to him, the statement of the petitioner are baseless and the petitioner alone has mis-conducted himself before the arbitrator. 14. In the counter affidavit filed by the contractor in O.P.No.608 of 1990, the contractor clearly pointed out that the state in the counter affidavit filed by them before the arbitrator in reply to the claim petition of the contractor, have not whispered about the recoveries nor has made any counter claim. Similarly, it is pointed out that during the of the personal hearing held on 20.5.1987, the Superintending Engineer did not make submission regarding the recoveries. In fact, the contractor on receipt of the copy award came to Know that the arbitrator has pri-vately received the statement of recoveries, a copy of which was enclosed with the award. I have been taken through the said statement annexed to the award. It would be seen from the said statement that the Superintending Engineer had claimed a sum of Rs.16,798.72 alleged to be due by the contractor Superintending Engineer, State. The arbitrator in his award had disallowed the counter of the state in respect of two claims namely refund of Earnest Money amount of Rs.7,500 and a sum of Rs.177.12 being the difference in conveyance of cement and allowed the of the counter claim. The arbitrator in his award had disallowed the counter of the state in respect of two claims namely refund of Earnest Money amount of Rs.7,500 and a sum of Rs.177.12 being the difference in conveyance of cement and allowed the of the counter claim. It was pointed out by the learned counsel for the petitioner that the procedure adopted here again by the arbitrator is illegal and hence the arbitrator is liable to be removed, as he has misconducted the proceedings and the award passed by him is liable to be set aside in its entirety. counter filed by the contractor, it is specifically stated that when the award should aside in its entirety, a new arbitrator should be appointed after removing the arbitrator to go into the dispute de novo to enable the arbitrator to pass an award on. 15. I see much force in the contention of the learned counsel for the contractor arbitrator has misconducted himself and the proceedings in not sending the statement to the contractor to enable him to meet the argument that may be advanced the hearing on behalf of the state. In fact, a copy of the counter statement was furnished the contractor as requested by him in his letter dated 4.5.1987 by registered acknowledgment due only on 8.5.1987. The contractor again pointed out to the arbitrator his letter dated 20.5.1987 that the Superintending Engineer had not chosen to forward with the copy of the counter simultaneously when the original counter was sent arbitrator. In the counter statement, a reference was made in para 35-B (Appendix is stated by the learned counsel for the contractor that the copies of the documents mentioned in Appendix-II have not been furnished to him at all. Likewise, Appendix VIII (value of materials and advance given to piece workers) have not been furnished contractor admittedly. The Superintending Engineer, by his letter in 129/DB/Palani, 20.5.1987 filed reply to the rejoinder dated 20.5.1987 of the contractor. The said was sent by registered post acknowledgment due on 20.5.1987. In para 17 of the rejoinder a reference was made to Exs.R-1 to R-8. On 24.8.1987, the petitioner the arbitrator against the partial conduct of the arbitrator in conducting the proceedings. was also pointed out that the arbitrator has failed to observe the rules of natural justice. 16. The said was sent by registered post acknowledgment due on 20.5.1987. In para 17 of the rejoinder a reference was made to Exs.R-1 to R-8. On 24.8.1987, the petitioner the arbitrator against the partial conduct of the arbitrator in conducting the proceedings. was also pointed out that the arbitrator has failed to observe the rules of natural justice. 16. Now, coming to the award, it is seen that the arbitrator has relied on the documents Exs.R-1 to R-8, which were not at all given to the contractor at the time of hearing. arbitrator has based his conclusion on these exhibits. Likewise, the arbitrator has referred those exhibits in this award and based his conclusion. The arbitrator along with the has enclosed certain enclosures admittedly a comparative statement sent along award now have not been furnished at all to the contractor at the appropriate Likewise, the department made a counter claim which was not served at all petitioner. But, the award was passed on that counter claim. According to the counsel for the petitioner, the respondent have not raised the same as a dispute at that opportunity was not given to the petitioner to rebut the counter claim. For time, the arbitrator stated in his order about the recoveries to be made from claimant/contractor. As stated above, the statement referred to and enclosed along award have not been furnished at all at the appropriate stage, but furnished contractor for the first time along with the award. It is also seen from the records by this Court that the arbitrator on 23.9.1987 in R.O.C.No.3125 filed certain documents which includes the documents filed along with the award such as 1) measurements original estimate for 2.4.1akhs 3) original agreement 4) circular office file (5 in Nos.) Divisional Office file (4 in nos.) were placed before the arbitrator behind the back petitioner. The contractor had no opportunity at all to go through those documents he informed that those documents are available with the arbitrator. It is proved arbitrator had private correspondence with the respondent. The above facts disclose arbitrator and the first respondent had private communication with each other in connection with the subject matter of the dispute behind the back of the petitioner and that the was not conducted by the arbitrator in all fairness. The copies of the enclosures were not furnished to the petitioner, but were relied on by the arbitrator. The above facts disclose arbitrator and the first respondent had private communication with each other in connection with the subject matter of the dispute behind the back of the petitioner and that the was not conducted by the arbitrator in all fairness. The copies of the enclosures were not furnished to the petitioner, but were relied on by the arbitrator. Thus, it is made clear that the arbitrator’s misconduct and the conduct of the proceedings is patent face of the award. The arbitrator who is to be neutral and who is to decide the question has conducted the proceedings in an irregular and slip-shod manner. Thus, in my entire award is liable to be set aside as illegal, invalid and perverse. Since it is proved the arbitrator has mis-conducted himself and the proceedings, he is also to be removed, the reasons mentioned in the petition by the contractor which go to show that the arbitrator has. conducted the proceedings in a biassed manner resulting in mis-carriage of justice. petitioner has prayed that the arbitrator is liable to be removed for his misconduct and place a new arbitrator preferably a Judge of this Court should be appointed to go into dispute between the parties de novo. In support of his contention, the learned counsel the petitioner Mr.Bijai Sundar has cited the following decisions: 17. Juggilal Kamlapat v. General Fibre Dealers Ltd., A.I.R. 1962 S.C. 1123: (1962)2 (Supp.) 101. Where the Supreme Court held, “Disputes which arose between the parties with respect to carrying out a contract referred to the arbitration of the Bengal Chamber of Commerce in accordance with agreement to refer disputes as and when they arose to the arbitration of the Chamber. award of the Tribunal of Arbitration was set aside by the High Court. On an application referring the matter for arbitration denovo another tribunal was constituted which made fresh award. The questions which arose for decision were whether after the first award set aside the reference to arbitration was exhausted and the arbitrator had become officio and whether without a fresh arbitration agreement it was not possible to have same dispute decided again by the arbitrator. The questions which arose for decision were whether after the first award set aside the reference to arbitration was exhausted and the arbitrator had become officio and whether without a fresh arbitration agreement it was not possible to have same dispute decided again by the arbitrator. Held, that the arbitrator became functus officio after he gave the award, but that did mean that in no circumstances could there be further arbitration proceedings where an was set aside or that the same arbitrator could never have anything to do with the with respect to the same dispute. Sec.19 of the Arbitration Act empowered the Court not to supersede the reference and leave the arbitration agreement effective even when it set aside the award and thereupon would depend upon the terms of the arbitration agreement whether the arbitration proceedings could go on with respect to the same dispute or with respect to some dispute arising under the arbitration agreement. ”“ In the present case the first award was set aside but as the reference had not superseded and the arbitration agreement subsisted it was open to the Chamber to appoint another tribunal under Rule-X of the Chamber Ruled.” 18. Prabhat Kumar Lata and others v. Jagdish Chandra Narang, A.I.R. 1968 Patna this case, it was argued that since the award was set aside, there could be no reference on the basis of the arbitration agreement. Rejecting, the said contention, Division Bench of the Patna High Court has held as under: “On filing of the award in the Court, objections to it were raised by the parties and the found that ” due to the failure of the arbitrators to give a reasonable opportunity plaintiff to support his claim by adequate notice, there was a clear cut act of misconduct that part of the arbitrators in conducting the proceeding. As such the award as filed stood aside. The arbitrators were directed to afford an opportunity to the plaintiff to cross the witnesses and to adduce such evidence as he proposes. They are directed to submit award in the light of the above direction positively within 10 days time. “On preliminary objection to the maintainability of appeal against that order. Held, that the court did not supersede the reference but continued the same reference sending the matter back to the arbitrators after setting aside the award. They are directed to submit award in the light of the above direction positively within 10 days time. “On preliminary objection to the maintainability of appeal against that order. Held, that the court did not supersede the reference but continued the same reference sending the matter back to the arbitrators after setting aside the award. Hence, impugned order was primarily an order under Sec.19 of the Arbitration Act and incidentally, further reference was made under Sec.19 thereof. Merely on the ground that the award set aside it could not be said that there could be no further reference on the basis arbitration agreement. The appeal was, therefore, maintainable. A.I.R. 1962 S.C.1123, on. [Para. 7] Held further, that it was however not desirable to appoint the same arbitrators whose award has been set aside, as each of them must have become biassed in favour one party and prejudiced against the other. [Paras. 7and 20]. ” The Patna High Court has also observed that it was not desirable to appoint the arbitrator whose award has been set aside as each of them must have biassed in favour one party and prejudiced against the other. Same is exactly the case here. Hence desirable to appoint another person as arbitrator to decide the dispute between the parties. 19. M/s. Mohinder Singh and Company v. The Union of India and others, A.I.R. 1972 and Kashmir 63, where the arbitrator who has a very important judicial function to discharge made a remark that "this case has become notorious in the department," the court held that act amounts to mis-conduct. The Court further held in para 44 as under: "In my opinion this clause cannot refer to cases where the arbitrator has been removed Court. Removal of an Arbitrator is exclusively the job of a court. Even the authority arbitrator cannot be revoked without the leave of the court. The procedure and the grounds for the removal of the arbitrator are also mentioned in the Act. Therefore when the arbitrator is removed, the matter remains with the court and under Sec.2 of the Act either the can appoint a new arbitrator or supersede the reference itself. In that contingency it be said that the court can or is expected to surrender its powers and delegate them office however highly placed he be. Therefore when the arbitrator is removed, the matter remains with the court and under Sec.2 of the Act either the can appoint a new arbitrator or supersede the reference itself. In that contingency it be said that the court can or is expected to surrender its powers and delegate them office however highly placed he be. If the arbitration clause is construed in the manner suggested by the learned counsel for the respondents, I think that part of it which gives authority to the Additional Chief Engineer to appoint a new arbitrator even in the case removal of one by the court, is contrary to the provisions of Sec.12 and any contract entered into between the parties in that behalf cannot be enforceable. Therefore I hold that it court alone who can appoint a new arbitrator when the previous arbitrator is removed." In the present case also, the arbitrator Mr.V.M. Ramasamy, Superintending Engineer, P.W.D. has made very many unwanted and uncalled for remarks against the counsel who appeared before me for the petitioner and who appeared before the arbitrator. He says in his award under: "Most astonishing, unnecessary and unwarranted way, the petitioner in his letter 24.5.1987 handed over by him on 28.5.1987 in person has stated that the Arbitrator misconducted the proceeding during the preliminary enquiry on 20.5.1987. On the grounds that the arbitrator has entered into private correspondence with the respondent and that petitioner’s advocate was not given sufficient opportunity to put forth the case. Contention the petitioner that the Arbitrator entered into a private correspondence with the respondent is not correct. Whatever correspondence relevant to the case has been communicated both the petitioner and the respondent." Again, the arbitrator says in his award as follows: "The petitioner ’ s lawyer was allowed take his own time to put forth his point without repeating the one and the same arguments. There was no complaint either from the petitioner or from his advocate about the paucity time allowed. The complaint about misconduct of the proceedings has been lodged days after the enquiry. This itself is a proof that the petitioner is keen in adopting pressure tactics to force that arbitrator for favourable judgment. This amounts to contempt committed by petitioner’s advocate. Such move by the advocate to bring pressure on the arbitrator totally unwarranted in this case and the protest lodged by the petitioner is totally rejected. This itself is a proof that the petitioner is keen in adopting pressure tactics to force that arbitrator for favourable judgment. This amounts to contempt committed by petitioner’s advocate. Such move by the advocate to bring pressure on the arbitrator totally unwarranted in this case and the protest lodged by the petitioner is totally rejected. This is the way the petitioner behaves even with the Arbitrator, it can be construed well that he would have behaved very badly with the respondent and his representatives during his contract period." In my opinion, the grounds made against the counsel for the petitioner is wholly unwarranted which only shows that the arbitrator’s prejudicial approach to the dispute in question and predetermined against the petitioner and his lawyer. In my opinion, the remarks made the arbitrator against an young and prospering lawyer is most uncharitable, which compelled me to remove the arbitrator and appoint another person in his place. The arbitrator forgets the elementary fact that he is not a court and he cannot invoke the provision of the contempt of court act. When this point was confronted with the advocate appearing on behalf of State, he only smiled. 20. State of Madras by the Commissioner of Milk Production, Madhavaram, Madras v. V.Krishna, (1976)2 M.L.J. 491 (D.B.). In this case, a Division Bench of our High court consisting of T.Ramaprasada Rao and S.Ratnavel Pandian, JJ., as they then were held, "If the parties to a contract voluntarily incorporated as one of its terms a clause which obligates one or the other of them to refer disputes arising under it or to seek for interpretation of the terms of such a contract to or from an arbitrator specified or named them, then the mandate imposed upon themselves by the parties is inescapable and has to be given effect to. An exception is it is proved and established that the person specified as arbitrator is biassed towards the parties or has involved himself in the subject matter of the contract from its and during the course of its working giving rise to a reasonable impression that a reference to him would be futile and not be a means to secure justice. In such a case the parties seek from the Court appointment of an arbitrator other than the named one. [Para. In such a case the parties seek from the Court appointment of an arbitrator other than the named one. [Para. 4] As has been pointed out by the Supreme Court the strict principle of sanctity of contract subject to the discretion of the Court under Sec.34 of the Indian Arbitration Act, for must be read with every such agreement an implied term or condition that it would enforceable only if the court having due regard to the other surrounding circumstances fit in its discretion to enforce it and that it is obvious that a party may be released from bargain if he can show that the selected arbitrator is likely to show bias or by reason that he will not act fairly or that he has been guilty of continued unreasonable conduct. The Courts are slow to disturb the named arbitrator. But at the same time, Courts have the right to decide in their judicial discretion whether all such terms contained an arbitration agreement are to be enforced or not. There may be circumstances in case wherein, as stated by the Supreme Court a party may be released from the bargain, circumstances exist to justify such conclusion." In the present case, I have already held that the present arbitrator, specified as under the agreement is biassed towards the petitioner and extended his helping hand opposite party namely the State, for which he vows his loyalty. He has involved himself the subject matter of the contract and from the very inception of the hearing and during course of his meeting he behaved in a manner giving rise to a reasonable impression reference to him again would be futile and not be a means to secure justice. In such as rightly held by the Division Bench, the petitioner in this Court can seek from the appointment of an arbitrator other than the named one. 21. Fertiliser Corporation of India v. Ravi Kumar, A.I.R. 1979 Orissa 19. In this case, learned single Judge of the Orissa High Court held as follows: "After an arbitrator is removed, the matter remains with the court and under Sec.12 the court can appoint a new arbitrator or supersede the reference, itself. The court surrender its power and delegate the same to an officer however highly placed he be." 22. Executive Engineer, Prachi Division, Bhubanes-war v. Gangaram Chhapolia and A.I.R. 1980 Orissa 51. The court surrender its power and delegate the same to an officer however highly placed he be." 22. Executive Engineer, Prachi Division, Bhubanes-war v. Gangaram Chhapolia and A.I.R. 1980 Orissa 51. In this case, S.Acharya, J. has held as under: "It is well settled that before the court exercises its jurisdiction to revoke the authority legally appointed arbitrator it should be satisfied that substantial miscarriage of justice take place if the said arbitrator is not removed. The Court’s discretion to remove arbitrator appointed by a competent court should be exercised very cautiously and sparingly. The Supreme Court in Amarchand Lalitkumar’s case, A.I.R. 1966 S.C. 1036, has observed: "the grounds on which leave to revoke may be given have been put under five heads: excess or refusal of jurisdiction or authority by arbitrator: (2) misconduct of arbitrator; disqualification of arbitrator (4) charges of fraud and (5) exceptional cases." In the instant case, the arbitrator has misconducted himself in exercising his authority excessive manner and also mis-conducted himself and the proceeding. Applying the ratio, I am satisfied that the specific miscarriage of justice will take place if the arbitrator in the agreement is not removed and hence this Court exercises its jurisdiction remove the arbitrator and appoint a new arbitrator in his place. 23. Banamali Charan Mohanty v. Kamaladebi Saha and others, A.I.R. 1984 Orissa 218. case, G.P.Mohapatra, J held as under, "Where the arbitrator appointed by a party is removed the Court is not legally bound the concerned party to nominate another person to replace the Arbitrator removed and bound to appoint the said nominee of the party. The court is not entitled to leave appointment of Arbitrator to the party whose nominee has been removed. Not that the is not entitled to ask the parties to suggest names to enable him to make a suitable choice to fill up the vacancy caused by the removal of the arbitrator. But it is the Court who is to apply its mind and make the choice for appointment of arbitrator. “At the time of hearing, a suggestion was put to the learned additional Government Pleader suggest names to enable the court to make a suitable choice to appoint a fresh arbitrator other than the departmental officer. But it is the Court who is to apply its mind and make the choice for appointment of arbitrator. “At the time of hearing, a suggestion was put to the learned additional Government Pleader suggest names to enable the court to make a suitable choice to appoint a fresh arbitrator other than the departmental officer. However, the Additional Government Pleader expressed his view on the matter and produced a letter from the Superintending (Construction), suggesting the name of the present Superintending Engineer, P.W.D. Madurai by name Mr. M. Kandasamy. It is to be noted that where the arbitrator appointed by under the agreement is removed the court is not legally bound to ask the concerned nominate any person to replace the arbitrator removed. The court is also not bound appoint the said nominee of the party (State). As rightly held by the Orissa High Court, court not entitled to leave the appointment of arbitrator to the party whose nominee been removed for misconduct. However, this Court directed the State to suggest names enable the court to make a suitable choice to fill up the vacancy caused by the removal of the arbitrator. Since government is not willing to appoint any other person, than the departmental personnel, this Court applying its mind to the matter in question the other attendant circumstances mentioned above make the final choice for appointment the arbitrator. 24. M/s. M.S. Khanna Associates (P) Ltd. v. New Delhi Municipal Committee and A.I.R. 1985 Delhi 262. Since government is not willing to appoint any other person, than the departmental personnel, this Court applying its mind to the matter in question the other attendant circumstances mentioned above make the final choice for appointment the arbitrator. 24. M/s. M.S. Khanna Associates (P) Ltd. v. New Delhi Municipal Committee and A.I.R. 1985 Delhi 262. In this case, Jagdish Chandra, J. has held as under: “The provision of law contained in Sec.12 has not been subjected to an agreement contrary between the parties, as a result of which it is clear that even if the arbitration agreement provides for the filling up of the vacancy by a named person even in the case vacancy caused by the removal of the arbitrator under the orders of the Court, the would be invalid being in contravention of Sec.12 which gives power to the Court alone up the vacancy on the removal of an arbitrator by Court Thus, the arbitration agreement even though talking of the occurrence of vacancy for any reason, the same cannot and not include the vacancy caused by the removal of the arbitrator under the orders of the and consequently the president or the Administrative Head of N.D.M.C. shall not have power to appoint a new arbitrator after the arbitrator initially appointed by him is removed by the court, and the power of appointing the new arbitrator rests with the court Sec.12 of the Act.” 25. W.S.Construction Company v. Hindusthan Steels Works Construction Ltd., A.I.R. Delhi 134. In the above case, the Delhi High Court, while considering whether an arbitrator appointed is liable to be removed on the ground that he has not sent any communication him, though the petition was filed nearly 11 months after his appointment. It was that the delay is not unreasonable on the part of the arbitrator to act and that the time making and publishing the award though fixed as 4 months, the arbitrator inspite of than three years have been expired has not acted in the matter. It was held that arbitrator had not acted as arbitrator and failed to use all reasonable despatches in entering on and proceeding with reference and making an award for unreasonably long period remains totally unexplained on the record. He had even failed to enter on the reference. the High Court held that the arbitrator is liable to be removed. It was held that arbitrator had not acted as arbitrator and failed to use all reasonable despatches in entering on and proceeding with reference and making an award for unreasonably long period remains totally unexplained on the record. He had even failed to enter on the reference. the High Court held that the arbitrator is liable to be removed. It is seen from the case, the arbitrator was removed On the ground that he has failed to use all reasonable despatch in entering on and proceeding with the reference and making an unreasonably for a long period which remains totally unexplained on the record. But present case, the arbitrator has not acted fairly and not applied the yardstick equally to parties. He has preferred to like the one against the interest of the other and furnished the documents to the State and considered the same in his award without furnishing documents to the claimant. In my view, for the proved lapses on the part of the arbitrator is liable to be removed. 26. Parshotam Lal v. The State and others, A.I.R. 1990 Jammu and Kashmir 47. This is case which deals with the removal of the arbitrator and appointment of an arbitrator inherent powers. In this case R.P.Sethi, J. held that, ” It is settled proposition of law that where parties to a contract voluntary incorporated one of its terms a clause which obliges one or the other of them to refer the disputes agreed arbitrator by them, a mandate is imposed upon them which is inescapable and be given effect to. However to this general principle there is an exception for taking under Sec.1l of the Arbitration Act or if it is proved that the person named or specified arbitrator is biassed towards one of the parties or has overtly or covertly involved the subject-matter of the contract from the time of its inception and during the course working so as to give an impression to a reasonable person that a reference to him dispute would be futile and in the ultimate analysis would not be means to secure the complaining party, then the court can in appropriate cases appoint a new arbitrator than the one named by the parties. This Court has also inherent power in appropriate to remove an arbitrator when the bias attributed such an arbitrator is evident from and circumstances of the case. This Court has also inherent power in appropriate to remove an arbitrator when the bias attributed such an arbitrator is evident from and circumstances of the case. Actual bias through overt acts is not necessary removal of an arbitrator so appointed by the Court. It was held in State of Orissa v. Construction Company, reported in A.I.R. 1972 Orissa 219, that even if the mentioned in Sec.11 of the Arbitration Act are not strictly in existence, the Court in of its inherent power can remove an arbitrator as the Court cannot plead helplessness has to meet the situation in exercise of its inherent powers which are vested in it justice between litigant to uphold fair play in judicial proceedings." 27. M/s.Northern Sanitation v. M/S.Hotel Corporation of India, A.I.R. 1990 Jammu Kashmir 49, is a case arising under the arbitrator ’ s declining to adjudicate counter objectors. The Jammu and Kashmir High Court held that the said act of the amounts to guilty of legal misconduct. In the instant case, as pointed out by me paragraphs above, the counter claim made by the respondent have not been served with the petitioner, but the award is passed on the claim. It is the specific case petitioner that the respondent never raised the said dispute as a dispute at all opportunity was given to the petitioner/contractor to rebut the counter claim. For time, the arbitrator say in the order and said something about the recoveries to from the claimant. In my opinion, the arbitrator is under a legal obligation to deal the claims which have been referred to for his decision. In the instant case, it specifically averred by the contractor that a counter claim was not raised as a dispute Since the arbitrator has decided a matter which was not referred to him as one dispute, in my opinion, the arbitrator is liable to be removed for such a legal misconduct. 28. Per contra, the learned Additional Government Pleader placed strong reliance decisions reported in the following three cases: 29. Secretary to Government, Transport Department, Madras v. Munuswamy Mudaliar another, 1988 S.C.C. (Supp.) 651. 28. Per contra, the learned Additional Government Pleader placed strong reliance decisions reported in the following three cases: 29. Secretary to Government, Transport Department, Madras v. Munuswamy Mudaliar another, 1988 S.C.C. (Supp.) 651. The Supreme Court held in the above case, entrusted to one National Company did not even commence the work and despite extension of time, the said firm failed and neglected even to commence Consequently, the contract in favour of the said firm was cancelled absolutely respondent before the Supreme Court in his individual capacity as the managing the said company filed Civil Suit in the City Civil Court, Madras claiming damages have been caused as a result of the said termination of the said contract and for earnest money deposit, In view of the arbitration clause in the agreement between parties, The Secretary to Government, Transport Department filed a petition for referring dispute to the arbitrator and the City Civil Court accepting the prayer passed orders both the parties to refer the disputes to the arbitrator namely the Superintending (Highways and Rural Works), Trichy. During the pendency of the claim before arbitrator, the managing director of the company filed another application seeking to the arbitrator on the ground that the arbitrator being an employee of the State Government, an engineer from any sector other than the sector of Tamil Nadu or a retired Engineer State Government might be appointed as arbitrator. As stated above the Superintending Engineer, (Highways and Rural Works), Trichy, was previously appointed as arbitrator. was succession to that office by another incumbent and the succeeding Superintending Engineer wanted to continue the arbitration proceedings but before that an application was made under Sec.5 of that Act for removal of the arbitrator, before the Civil Court. The learned Judge of the City Civil Court by his order sought to revoke authority of the named arbitrator, by observing that the apprehension of bias on the arbitrator was made out. The City Civil Judge stated that the Chief Engineer of the concerned was in favour of the cancellation of the contract in question and the entrusted to the Secretary to Government came to be terminated and the construction sought to be entrusted at the risk and cost on the advice or the proposal of the Engineer. The City Civil Judge stated that the Chief Engineer of the concerned was in favour of the cancellation of the contract in question and the entrusted to the Secretary to Government came to be terminated and the construction sought to be entrusted at the risk and cost on the advice or the proposal of the Engineer. The learned Judge of the City Civil Court came to the conclusion that there legitimately be a bias in the mind of the arbitrator who was the Superintending Engineer. The High Court dismissed the appeal in limine. Hence the appeal was filed before Supreme Court. The Supreme Court held that the order made by the City Civil Court and decision of the High Court cannot be sustained on the ground of vague suspicion and absence of reasonable evidence to satisfy that there was really a likelihood of bias. Supreme Court allowed the appeal and remanded the case back to the City Civil Court the Government to appoint the Superintending Engineer, Trichy to be the arbitrator accordance with the arbitration agreement. The Supreme Court further directed arbitrator to proceed according to the evidence of the parties and make an award considering all the relevant facts according to the agreement. 30. The Supreme Court in the above judgment held reasonable apprehension of bias mind of a reasonable man can be a ground for removal of the arbitrator and a arbitrator cannot be removed in exercise of a discretion vested in the Court under Sec.5 the Act, unless there is allegation against the named arbitrator either against his honesty capacity or mala fide or interest in the subject-matter or reasonable apprehension bias. In the view expressed by the Supreme Court, the reasonable apprehension of the will be a ground for removal of the arbitrator. In the instant case, it has been established clearly that the arbitrator has not conducted the proceedings in all fairness and that entertained a kind of bias against the petitioner and counsel and that the award perverse. The cause of the bias has also been substantiated by the petitioner by sufficient allegations against the arbitrator and also substantiated by the argument learned counsel for the petitioner at the time of hearing. In the instant case, it has clearly proved that the petitioner has entertained a reasonable apprehension against arbitrator based on cogent material and by adducing convincing reasons. In the instant case, it has clearly proved that the petitioner has entertained a reasonable apprehension against arbitrator based on cogent material and by adducing convincing reasons. Hence, the judgment will not be of any assistance to the State. 31. Coimbatore District P.T.Sangam v. Bala Subramania Foundry, A.I.R. 1987 S.C. 2045. case was relied on by the learned Additional Government Pleader to show that the award only be set aside where there is an error on its face. In the instant case. It was pointed out that the award of the arbitrator is liable to be set aside on the ground that were many errors on its face and the arbitrator has misconducted himself and proceedings. Hence this judgment is not applicable to the facts of this case distinguishable. 32 M/s.Hindustan Tea Company v.K.Sashikant andCompany,A.I.R. 1987 S.C. 81. This also cited by the learned Additional Government Pleader to say that the award cannot aside on the ground that the arbitrator has reached a wrong conclusion or has failed appreciate the facts. As stated above, in the paras supra, the grievance of the petitioner that the arbitrator has misconducted himself and the proceedings and acted against interest of the petitioner. Hence this decision also is not applicable to the facts of the case. 33. For the foregoing reasons, I am of the view that the named arbitrator under the contract is liable to be removed on the ground that the petitioner has established reasonable apprehension of the bias and also the legal misconduct on the part of the arbitrator and proceedings. Hence the arbitrator appointed pursuant to the agreement entered into between the parties is removed and in his place Mr.C.Sundaram Retired Registrar of this Court appointed as an arbitrator who will decide the dispute between the parties by affording sufficient and reasonable opportunities to both parties. Both parties are at liberty to their claims before the said arbitrator and the said arbitrator will make an award within months from the date of entering upon the reference. The arbitrator shall fix his fees claim all expenses from both parties in equal share. 34. In the result, O.P.No.109 of 1988 is allowed and O.P,No.608 of 1990 is dismissed view of the order passed in O.P.Nos.109 of 1988 and 608 of 1990 no further orders necessary in O.P.No.348 of 1987. However, in the circumstances of the case, there no order as to costs. 34. In the result, O.P.No.109 of 1988 is allowed and O.P,No.608 of 1990 is dismissed view of the order passed in O.P.Nos.109 of 1988 and 608 of 1990 no further orders necessary in O.P.No.348 of 1987. However, in the circumstances of the case, there no order as to costs. Petitions ordered.