ORDER 1. In this application under section11(6) of the Arbitration and Conciliation Act, 1996 , the applicant seeks appointment of an Arbitrator to adjudicate the dispute between the parties. 2. Facts giving rise to filing of the application briefly stated are that the applicant was awarded the contract for supply and stacking of 57,000 cubic meters machine crushed stone ballast on cess in section between Jamtara to Sukri Mangela in connection with Gondia Jabalpur Gauge Conversion Project. The contract awarded to the applicant was terminated vide order dated 5.7.2011. Thereafter, the applicant submitted an application on 2.9.2012 requesting the General Manager i.e. non-applicant No.1 to appoint an Arbitrator. The aforesaid application was received by the General Manager on 11.9.2012. However, the General Manager did not take action for appointment of the Arbitrator. Eventually, the petitioner filed this application on 28.1.2013. Admittedly, the agreement contains an arbitration clause which reads as under : “64(3)(i) ... (ii) In cases not covered by clause 64(a)(i), the Arbitral Tribunal shall consist of a panel of three. Gazetted Railway Officers not below JA Grade, as the Arbitrators. For this purpose, the Railway will send a panel of more than 3 names of Gazetted Railway Officers of one or more departments of the Railway to the Contractor who will be asked to suggest to General Manager upto 2 names out of the panel for appointment as Contractor’s nominee. The General Manager shall appoint atleast one out of them as the Contractor’s nominee and will also simultaneously appoint the balance number of Arbitrators either from the panel or from outside the panel, duly indicating the presiding Arbitrator from amongst the 3 Arbitrators so appointed. While nominating the Arbitrators till be necessary to ensure that one of them is from Accounts Department. An Officer of Selection grade to the officers in SA Grade of other departments of the Railways for the purpose of appointment of Arbitrators. (iii) In one or more of the Arbitrators appointed as above refuses to act as Arbitrator, withdraws from him office as Arbitrator, or vacates his/their office/offices or is/are unable or unwilling to perform his functions as Arbitrator for any reason whatsoever or dies or in the opinion of the General Manager fails to act without undue delay, the General Manager shall appoint new Arbitrator/Arbitrators to act in his/their place in the same manner in which the earlier Arbitrator/Arbitrator had been appointed. Such reconstituted Tribunal may, at its discretion proceed with the reference from the stage at which it was left by the previous Arbitrator(s). It is also common ground that the case of the applicant is covered by clause 64(3)(2) of the agreement. 3. Learned counsel for the applicant submitted that since despite receipt of notice, the non-applicants have failed to appoint the Arbitrator within the prescribed time limit. Therefore, the non-applicants have forfeited their right to appoint an Arbitrator under the agreement. It is further submitted that the applicant has made averments with regard to mala fides in paragraphs 8, 9, 11, 13 and 14 of the application to which, no reply has been submitted on behalf of the non-applicants, therefore, an independent Arbitrator should be appointed by this Court. 4. On the other hand, learned counsel for the non-applicants while inviting the attention of this Court to para 3 of the return, submitted that the applicant during the pendency of the contract had entered into correspondence with Deputy Chief Engineer and Chief Engineer (Construction). However, the applicant after termination of the contract, straight way submitted the application to the General Manager. It is also submitted that in case the applicant approaches the Chief Engineer or Deputy General Manager, action for appointment of the Arbitrator as per the arbitration agreement shall be taken. 5. I have considered the submission made by learned counsel for the parties. A three Judge Bench of the Supreme Court while taking into account the requirement contained under section 11(8) of the Act in para 20 in the case of Deep Trading Company v. Indian Oil Corporation and others [ AIR 2013 SC 1479 ] (supra), has held s under : “20. Section 11(8) does not help the Corporation at all in the fact situation. Firstly, there is no qualification for the Arbitrator prescribed in the agreement. Secondly, to secure the appointment of an independent and impartial Arbitrator, it is rather necessary that some one other than an officer of the Corporation is appointed as Arbitrator once the Corporation has forfeited its right to appoint the Arbitrator under clause 29 of the agreement.” 6. In the instant case, from close scrutiny of the arbitration clause, it is evident that there is no requirement under the arbitration agreement to submit any application to any specific authority. In the instant case, from close scrutiny of the arbitration clause, it is evident that there is no requirement under the arbitration agreement to submit any application to any specific authority. From perusal of the general conditions of the contract, the expression “General Manager” means that the General Manager is the Officer-in-Charge of the general superintendence and control of the Railway and shall also include the General Manager (Construction) and shall mean and include their successors of the successor Railways. Despite receipt of the notice from the applicant, the General Manager had refused to take any action for appointment of the Arbitrator. Therefore, the non-applicants have forfeited their right to appoint the Arbitrator. In view of the law laid down by the Supreme Court in the case of Deep Trading (supra), and with a view to ensure appointment of an independent and impartial Arbitrator, as laid down under section11(8) of the Act as well as averments made by the applicant in paragraphs 8, 9, 11, 13 and 14 of the application which have not been rebutted on behalf of the non-applicants, I deem it appropriate to appoint Mr. Justice S.C. Pandey (retired) as an Arbitrator to arbitrate the dispute between the parties. Office is directed to send a copy of this order to Mr. Justice S.C. Pandey (Retd.) Accordingly, the arbitration case is disposed of. ............. VKB 2015(1) JLJ 304 S.C. Sharma, J. Madhvendra v. Union of India and others Writ Petition No.10152 of 2012(S) (Indore); Decided on 14.10.2014. Constitution of India -- Art.226 -- Central Civil Service (Classification, Control and Appeal) Rules, 1965 -- R. 19 -- compulsory retirement as a punishment -- petitioner suspended due to conviction in a criminal case thereafter dismissed from service -- conviction set aside by High Court -- departmental appeal also dismissed -- order of compulsory retirement passed by respondents not based on any departmental enquiry -- impugned order is bad in law -- respondents are directed to reinstate the petitioner. Held : This Court is of the considered opinion as the order of punishment is not based upon any departmental enquiry, and as no reason has been recorded by any disciplinary authority under rule19 of 1965, the impugned order which has been passed even after acquittal of the petitioner, is bad in law. Resultantly, order dated 13.2.2010 (Annexure A-8) and order dated 12.10.2010 (Annexure A-15) are hereby set aside. Resultantly, order dated 13.2.2010 (Annexure A-8) and order dated 12.10.2010 (Annexure A-15) are hereby set aside. The respondents are directed to reinstate the petitioner forthwith in service. (2008)3 SCC 272 and 2002(5) MPLJ 11 discussed. 2009(1) MPHT 401 referred to. 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The petitioner, before this Court, has filed this present petition being aggrieved by order dated 13.2.2010 (Annexure A-8) and 12.10.2010 (Annexure A-15), by which a punishment of compulsory retirement has been inflicted upon the petitioner and the appeal against the same has also been dismissed. 2. The facts of the case reveal that the petitioner was working on the post of Examiner at Bank Note Press, Dewas. A criminal case was registered against him under section 489 of IPC being Criminal Case No.274/1999. The petitioner was convicted vide judgment of conviction dated 16.4.2005 passed by Ist Additional Sessions Judge, Dewas, and a punishment of 6 years rigorous imprisonment was inflicted upon him. The petitioner, thereafter preferred an appeal before the High Court of Madhya Pradesh. 3. A criminal case was registered against him under section 489 of IPC being Criminal Case No.274/1999. The petitioner was convicted vide judgment of conviction dated 16.4.2005 passed by Ist Additional Sessions Judge, Dewas, and a punishment of 6 years rigorous imprisonment was inflicted upon him. The petitioner, thereafter preferred an appeal before the High Court of Madhya Pradesh. 3. The petitioner’s contention is that after his conviction, a notice was issued on 26.5.2005 under rule 19 of Central Civil Services (Classification, Control and Appeal) Rules 1965, and the petitioner did not submit a reply to the show cause notice. The respondents have finally passed an order on 22.6.2005, removing the petitioner from services. The petitioner was lateron acquitted by this Court in Criminal Appeal No.967/2005, decided on 15.7.2008 and thereafter on a representation was submitted by the petitioner, the respondents have issued an order on 13.2.2010, confirming the dismissal into compulsory retirement. The petitioner’s appeal has also been dismissed by the authorities. 4. Learned counsel for the petitioner has placed reliance upon a judgment delivered by the apex Court in the case of State of Madhya Pradesh v. Hazarilal, reported in (2008)3 SCC 272 , and his contention is that even in a case of conviction, the order of dismissal was held to be a harsh punishment. He has also placed reliance upon a judgment delivered in the case of Ramratan Tiwari v. State of M.P., reported in 2002(5) MPLJ 11, and again his contention is that the petitioner is entitled for reinstatement in service on account of his acquittal. Learned counsel has placed reliance upon a judgment in the case of Ram Abhilash Shukla v. State of M.P. and others, reported in 2009(1) MPHT 401 , and his contention is that keeping in view the aforesaid judgment again the order of punishment deserves to be set aside. 5. Learned counsel submitted that in the light of the aforesaid judgments delivered in the aforesaid cases, the petitioner is entitled for reinstatement. 6. A detailed and exhaustive reply has been filed in the matter and the respondents have stated that the petitioner was initially dismissed from service on account of conviction in a criminal case. 5. Learned counsel submitted that in the light of the aforesaid judgments delivered in the aforesaid cases, the petitioner is entitled for reinstatement. 6. A detailed and exhaustive reply has been filed in the matter and the respondents have stated that the petitioner was initially dismissed from service on account of conviction in a criminal case. It has also been stated that as the integrity of the petitioner was doubtful and as he was involved in supplying counterfeit bank notes he was arrested by Dewas police and he was rightly convicted by learned Sessions Judge and the respondents after taking into account the judgment of acquittal have punished the petitioner and have passed an order of retiring the petitioner compulsorily under rule 19 of Rules 1965. The respondents have prayed for dismissal of the writ petition. 7. Heard the learned counsel for the parties and perused the record. In the present case, it is an admitted fact that the petitioner was dismissed from service on account of his conviction in a criminal case by an order dated 22.6.2005. He was acquitted by the High Court vide judgment in Criminal Appeal No.967/2005, on 15.7.2008. The respondents have thereafter passed an order in exercise of powers conferred under rule 19 of 1965 on 13.2.2010, compulsorily retiring the petitioner. The appeal of the petitioner has also been dismissed. 8. Rule 19 of Central Civil Services (Classification, Control and Appeal) Rules, 1965, reads as under : “19. Special procedure in certain cases. The respondents have thereafter passed an order in exercise of powers conferred under rule 19 of 1965 on 13.2.2010, compulsorily retiring the petitioner. The appeal of the petitioner has also been dismissed. 8. Rule 19 of Central Civil Services (Classification, Control and Appeal) Rules, 1965, reads as under : “19. Special procedure in certain cases. -- Notwithstanding anything contained in rule 14 to rule -- (i) where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or (ii) where the disciplinary authorities satisfied for reason to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or (iii) where the President is satisfied that in the interest of the securityof the State, it is not expedient to hold any inquiry in the manner provided in these rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit : Provided that the Government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case under clause (i) : Provided further that the Commission shall be consulted where such consultation is necessary, before any orders are made in any case under this rule. 9. The aforesaid statutory provision of law empowers the disciplinary authority to impose a punishment upon a Government servant on the ground of conviction in a criminal case. In the present case the conviction of the petitioner was set aside. No reason has been recorded in writing as to why departmental enquiry is not possible in case of the petitioner and the fact remains that no departmental enquiry was conducted by any of the authority before passing the order of compulsorily retirement and therefore in the light of the statutory provisions as contained under rule 19 of 1965 the impugned orders have to pave the path of extinction. 10. The apex Court in the case of State of M.P. v. Hazarilal, in case of dismissal on account of conviction, in paragraphs 3, 5, 7, 8 and 16 has held as under : “3. The respondents thereafter filed an original application before the State Administrative Tribunal, Gwalior. 10. The apex Court in the case of State of M.P. v. Hazarilal, in case of dismissal on account of conviction, in paragraphs 3, 5, 7, 8 and 16 has held as under : “3. The respondents thereafter filed an original application before the State Administrative Tribunal, Gwalior. The Tribunal by an order dated 25.11.2002 allowed the said application holding : “However, the applicant succeeds on the ground that the punishment of removal from service is grossly excessive because the punishment was only under section 323 IPC and the High Court has clarified that the punishment does not involve any moral turpitude; every power vested in a public authority has to be exercised fairly, justly and reasonably. The respondents should have applied their mind to the penalty which should be appropriately imposed in the circumstances of the case, please see Shankar Dass v. Union of India. This does not seem to have been done.” A writ petition filed there against by the appellants before the High Court has been dismissed by reason of the impugned judgment. 5. The case in hand appears to be a gross one. This Court is unable to appreciate the attitude on the part of the appellant herein which ex facie appears to be wholly reasonable. The respondent had not committed any misconduct within the meaning of the provisions of the Service Rules. He was not even sent to prison. Only a sum of Rs.500 was imposed upon him as fine. 7. By reason of the said provision, thus “the disciplinary authority has been empowered to consider the circumstances of the case where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge”, but the same would not mean that irrespective of the nature of the case in which he was involved or the punishment which has been imposed upon him, as an order of dismissal must be passed. Such a construction, in our opinion, is not warranted. 8. An authority which is conferred with a statutory discretionary power is bound to take into consideration all the attending facts and circumstances of the case before imposing an order of punishment. While exercising such power, the disciplinary authority must act reasonably and fairly. The respondent occupied the lowest rank of the cadre. He was merely a contingency peon. 8. An authority which is conferred with a statutory discretionary power is bound to take into consideration all the attending facts and circumstances of the case before imposing an order of punishment. While exercising such power, the disciplinary authority must act reasonably and fairly. The respondent occupied the lowest rank of the cadre. He was merely a contingency peon. Continuation of his service in the department would not bring a bad name to the State. He was not convicted for any act involving moral turpitude. He was not punished for any heinous offence. 16. For the reasons aforementioned there is no merit in his appeal which is dismissed with costs. Counsel fee is quantified as Rs.25,000/-.” 11. In the aforesaid case the applicant was convicted in a criminal case where in the present case petitioner has been acquitted by this Court and therefore in the light of the aforesaid judgment again the order of dismissal is bad in law. This Court in the case of Ramratan Tiwari (supra), has directed reinstatement on account of acquittal by Division Bench of this Court. In the case of State of M.P. v. Hazarilal (supra), workman was terminated on account of involvement in a criminal case though he was acquitted and his reinstatement was ordered by the Labour Court, the same has been upheld. 12. Resultantly, this Court is of the considered opinion as the order of punishment is not based upon any departmental enquiry, and as no reason has been recorded by any disciplinary authority under 19 of 1965, the impugned order which has been passed even after acquittal of the petitioner, is bad in law. 13. Resultantly, order datedd 13.2.2010 (Annexure A-8) and order dated 12.10.2010 (Annexure A-15) are hereby set aside. The respondents are directed to reinstate the petitioner forthwith in service. So far as the amount of backwages are concerned, as the petitioner is already receiving the pension, this Court is of the opinion that the amount paid towards pension shall be adjusted towards back wages, however, other terminal dues other then pension shall be recovered by the employer from the petitioner. The petitioner shall be entitle to all consequential benefits except back wages. The period during which petitioner was under suspension and the period during which the petitioner was not in job, shall be treated period as spent on duty for all purposes, except for payment of salary. The petitioner shall be entitle to all consequential benefits except back wages. The period during which petitioner was under suspension and the period during which the petitioner was not in job, shall be treated period as spent on duty for all purposes, except for payment of salary. He shall be entitled for notional fixation of salary. 14. With the aforesaid petition stands allowed. No order as to costs. .............