JUDGMENT Hon’ble Pankaj Mithal, J.—Heard Sri Rahul Sahai, learned counsel for the petitioner and Sri Govind Saran who appears for the respondents. 2. The petitioner is seeking reference of dispute arising between the parties in relation to the work order dated 4.11.2009 to an arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as an “Act”). 3. According to the petitioner the work order dated 4.11.2009 is governed by the Indian Railways Standard Conditions of Contract which in clause 2900 contains an arbitration agreement. The said arbitration agreement provides that in the event of any question, dispute or difference arising under those conditions or any special condition of contract or in connection with the contract, the same shall be referred to the sole arbitration of the gazetted Railway officer to be appointed by the General Manager where the contracts have been entered into by the zonal Railways and production units. 4. Under the aforesaid work order/contract the petitioner was to supply 2752 khaki jackets of superior quality to the respondents. The petitioner alleges that he had made the supply of the jackets as per the work order but after two months of the supply the consignment was rejected. The rejection of the consignment and withholding of the payment of the petitioner has given rise to a bonafide dispute between the parties which is referable to arbitration under clause 2900 of the Indian Railways Standard Conditions of Contract. 5. It is alleged that when the dispute could not be resolved by negotiation, the petitioner had invoked the arbitration clause vide registered notice dated 10.9.2011 and had demanded reference of the dispute to the sole arbitrator but in vain. Since the contract was with the Controller of Stores who is the head of a production unit, the arbitrator was to be appointed by the General Manager. 6. The respondents in response to the petition have filed their counter-affidavit and a supplementary-affidavit. In the aforesaid affidavits the respondents have not denied the applicability of the Indian Railways Standard Conditions of Contract and the existence of the arbitration clause 2900 therein. They have not even denied the receipt of the notice dated 10.9.2011. The defence of the respondents is that the General Manager has appointed an arbitrator on 29.8.2012 and therefore no further reference of disputes to any independent arbitrator is necessary through the intervention of the Court. 7. They have not even denied the receipt of the notice dated 10.9.2011. The defence of the respondents is that the General Manager has appointed an arbitrator on 29.8.2012 and therefore no further reference of disputes to any independent arbitrator is necessary through the intervention of the Court. 7. The petitioner has invoked the arbitration clause vide notice dated 10.9.2011which was served on 15.9.2011 as admitted by Sri Govind Saran on instructions. The notice required the General Manager to appoint an arbitrator within 30 days of its receipt.The petition seeking appointment of the arbitrator was filed on 30.5.2012. The arbitrator was appointed on 29.8.2012 by the General Manager after almost a year from the date of notice/its service and after the filing of this petition under Section 11 of the Act. Therefore, the appointment of the arbitrator by the General Manager is not only beyond the period stipulated in the notice but also after the petitioner has approached the Chief Justice for appointment of arbitrator under Section 11 of the Act. 8. It has been settled all through starting from Datar Switchgears Limited v. Tata Finance Limited and another, (2000) 8 SCC 151 , that once the procedure prescribed under the contract for appointment of arbitrator fails and the party moves under Section 11 of the Act, the authority vested with the power to appoint the arbitrator looses its jurisdiction to refer the dispute to arbitration. 9. A three Judges Bench of the Apex Court in Punj Lloyd Limited v. Petronet MHB Limited, 2006 (2) SCC 638 , followed the principle laid down in the Datar Switchgear (Supra) and ruled that the party looses his right to appoint an Arbitrator when it fails to do so within 30 days of the notice served upon him to make an appointment and when the other side moves to the Chief Justice under Section 11 (6) of the Act. 10. The above principle has been reiterated by the three Judges Bench of the Supreme Court in Deep Trading Company v. Indian Oil Corporation and others, (2013) 4 SCC 35 and it has been held that the right of the authority to appoint the arbitrator under the contract stands forfeited once the party approaches the Chief Justice for appointment under Section 11 of the Act. 11. The above principle of law fully covers the instant case. 11. The above principle of law fully covers the instant case. Accordingly, the appointment of arbitrator vide order dated 29.8.2012 is clearly without jurisdiction. 12. Sri Govind Saran, learned counsel for the respondents next submitted that in response to the letter dated 3.9.20912 of the arbitrator so appointed the petitioner replied stating that the claim is under preparation and that it will be filed in due course as such petitioner is estopped from seeking reference under Section 11 of the Act. 13. Sri Rahul Sahai, learned counsel for the petitioner in response contends that as the appointment of the arbitrator after the petitioner has approached the Chief Justice under Section 11 of the Act is no appointment in the eyes of law, there is no question of the petitioner submitting to his jurisdiction specially when the petitioner vide his letter dated 1.10.2012 has duly notified the arbitrator that a petition under Section 11 of the Act was filed prior to his appointment. Therefore he has no jurisdiction to proceed and the arbitration should atleast be deferred till the disposal of petition under Section 11 of the Act. 14. The contention that the petitioner has submitted to the jurisdiction of the arbitrator so appointed by the General Manager has has no force. It is relevant to point out that the very appointment of the said arbitrator was without jurisdiction and as such any correspondence with the said arbitrator would not affect the rights of the petitioner to challenge the jurisdiction of the arbitrator. 15. This apart, petitioner in response to the invitation of the claim by the arbitrator vide letter dated 1.10.2012 without submitting any claim has clarified that the petitioner has already moved under Section 11 of the Act and that the arbitration cannot proceeded until and unless the petition is decided. 16. In view of the above, the petitioner has not acquiesced to the jurisdiction of arbitrator. 17. Lastly, Sri Govind Saran has argued that as the arbitration clause provides for reference of dispute to the sole arbitrator of the gazetted Railway officer, it is desirable that some gazetted Railway officer alone be appointed as the arbitrator. 18. 16. In view of the above, the petitioner has not acquiesced to the jurisdiction of arbitrator. 17. Lastly, Sri Govind Saran has argued that as the arbitration clause provides for reference of dispute to the sole arbitrator of the gazetted Railway officer, it is desirable that some gazetted Railway officer alone be appointed as the arbitrator. 18. In this connection in Union of India and another v. M.P. Gupta, (2004) 10 SCC 504 , the three Judges Bench of the Supreme Court has held that where the agreement specifically provides for an appointment of a gazetted Railway officer as arbitrator, the High Court was in error in appointing a retired Judge as the sole arbitrator. 19. The above decision of the Supreme Court in the case of M.P. Gupta (Supra) was considered by the subsequent decision of the Supreme Court in the case of Union of India v. Bharat Battery Manufacturing, (2007) 7 SCC 684 . In the said case the High Court in exercise of powers under Section 11 (6) of the Act had referred the dispute to Justice K.S. Gupta as sole Arbitrator. The appointment of Arbitrator was challenged before the Supreme Court and it was contended that the appointment is bad as the High Court did not follow the mandate of Section 11 (8) of the Act and that there is no justification in not appointing an Arbitrator specified in the agreement itself. The Supreme Court after considering the three Judges decision of the Supreme Court in the case of M.P. Gupta (Supra) repelled the argument and held that after an application under Section 11 (6) of the Act is filed, the right of the department to appoint an Arbitrator in terms of the agreement in terms of the agreement stands extinguished. The Court thus upheld the appointment of Justice K.S. Gupta while dismissing the appeal. 20. In Union of India v. M/s. V.S. Engineering (P) Ltd., AIR 2007 SC 285 , the Apex Court again after considering M.P. Gupta (Supra) observed that where the General Manager, Railway does not appoint the arbitral tribunal and the party approaches the High Court after the expiry of 30 days, in that case, High Court will be fully justified in appointing the Arbitrator who in its discretion may even be a retired High Court Judge. 21. 21. Apart from the above, the Supreme Court itself in Union of India v. M/s. Singh Builders Syndicate, 2009 AIR SCW 3374, pointed out that the principle of law laid-down in M.P. Gupta (Supra) was in respect of the old Arbitration Act, 1940 but the position in the present Act is different as the appointment of Arbitrator (s) named in the arbitration agreement is not mandatory or must and the Chief Justice or his designate is not powerless to make appropriate alternative arrangements to give effect to the provision for arbitration. 22. On consideration of the above decisions and that of Indian Oil Corporation Limited and others v. Raja Transport Private Limited, (2009)8 SCC 520 , this Court in Bharat Wire Ropes Limited v. Union of India and others, 2012(5) ADJ 644 , had laid down that referring of disputes by the Chief Justice or his designate to an official named in the agreement is a rule but he is not powerless to make appropriate alternative arrangement as an exception. 23. The principle that emerges is that once the power of the party under the agreement to make an appointment of Arbitrator stands determined on filing of an application under Section 11 (6) of the Act, the conditions of appointment contained in the agreement would pale into insignificance to a limited extent. The Chief Justice or the person designated by him is to act independently and judicially and is not to simply perform the administrative functions of the authority under the agreement. Anything contrary to it would signify reducing the status of the Chief Justice or the person designated by him to that of the authority under the agreement. This cannot be the intention of law as the Chief Justice or his nominee is not supposed to work as the officer/authority under the agreement. 24. The Chief Justice or his designate in the matter of appointment of an arbitrator is possessed of plenary power on which no fetters can be placed that too by a condition which governs the appointment of the arbitrator by the departmental person. 25. 24. The Chief Justice or his designate in the matter of appointment of an arbitrator is possessed of plenary power on which no fetters can be placed that too by a condition which governs the appointment of the arbitrator by the departmental person. 25. The position in this regard has further been clarified by the recent three Judges Bench of the Supreme Court in the case of Deep Trading company (supra) and it has been held that it is not necessary for the Chief Justice or its designate to appoint officer as referred to in the arbitration agreement once the procedure for appointment therein has failed and where the agreement does not lay down any particular qualification for the arbitrator.It has further been laid down that to secure an appointment of an independent and impartial arbitrator, it is necessary that some one other than the officer of the department or corporation be appointed as the sole arbitrator once the authority forfeits its power to refer the dispute to arbitration. 26. The agreement in question does not provide for any specific qualification for the arbitrator. It only stipulates for referring the dispute to the sole arbitration of the gazetted Railway officer. The reference of dispute to the gazetted Railway officer is at the instance of the General Manager as per the procedure prescribed under the contract. But once the General Manager lost his power to make appointment as per the said procedure, it is open for the Court to appoint an independent and impartial arbitrator. 27. In view of the aforesaid facts and circumstances, as the procedure prescribed for the appointment of the arbitrator has failed, the appointment made by the General Manager is non est and the agreement does not attaches any qualifications to the office of the arbitrator it is considered fit and proper to appoint an independent and impartial arbitrator other than the railway officer in exercise of powers under Section 11 of the Act. 28. Accordingly, Sri R.S. Pandey, a retired District Judge, resident of 128/426 K Block Kidwai Nagar, Kanpur, 208001 Mobile No. 9450344600 and 9305907004 who is at serial No. 14 in the panel of retired Judicial Officers maintained by the High Court is hereby appointed as the sole arbitrator to adjudicate the dispute between the parties. 29. 28. Accordingly, Sri R.S. Pandey, a retired District Judge, resident of 128/426 K Block Kidwai Nagar, Kanpur, 208001 Mobile No. 9450344600 and 9305907004 who is at serial No. 14 in the panel of retired Judicial Officers maintained by the High Court is hereby appointed as the sole arbitrator to adjudicate the dispute between the parties. 29. Let a copy of this order be sent to the learned Arbitrator with request to enter into arbitration forthwith and to complete it at the earliest. 30. Petition allowed.