Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 611 (ORI)

Keshab Charan Mohanty v. State of Odisha

2015-11-05

S.C.PARIJA

body2015
JUDGMENT : S.C. Parija, J. 1. This is an application filed under Section 11 of the Arbitration and Conciliation Act, 1996, for appointment of Arbitrator. 2. The brief facts of the case is that the petitioner had entered into a contract with the State Government-opposite party No. 1, for execution of the work "Excavation of Gania (Paisapaka) Nalla under drainage congestion in rivers Daya, Bhargavi, Luna & Makara Outfalling to Chilika Lagoon and remedial measures", vide Agreement No. 1116 F2/06-07, for an estimated value of Rs. 73,09,903/-. The date of commencement of the work was 21.3.2007 and the stipulated date of completion was 20.6.2007. The Agreement had a clause for settlement of dispute which reads as under:-- "10. SETTLEMENT OF DISPUTE: If the contractor considers any work demanded of him to be outside the requirements of the contract or considers any drawing record or ruling of the Engineer-in-charge, on any matter in connection with or arising out of the contract or carrying out of work to be unacceptable, he shall promptly ask the Engineer-in-charge in writing for written instruction or decision. There upon the Engineer-in-charge shall give his written instructions or decision within a period of thirty days of such request. Upon receipt of the written instruction or decision, the Contractor shall promptly proceed without delays to comply with such instruction or decision. If the Engineer-in-charge fails to give his instructions or decision in writing within a period of thirty days after being requested or if the contractor is dissatisfied with the instruction or decision of the Engineer-in-charge the contractor may within thirty days after receiving instruction or decision of the Engineer-in-charge will approach to the higher authority who shall afford an opportunity to the contractor to be heard and to offer evidence in support of his appeal. The Authority shall give his decision within a period of thirty days after the contractor has given the said evidence in support of his appeal, which shall be binding upon the contractor." 3. The case of the petitioner is that inspite of various impediments and indifference shown by the departmental authorities, he completed the contract work within the stipulated period. During execution of the contract work, the petitioner had to execute several extra items and additional works because of change in the alignment and shifting of the work site. The case of the petitioner is that inspite of various impediments and indifference shown by the departmental authorities, he completed the contract work within the stipulated period. During execution of the contract work, the petitioner had to execute several extra items and additional works because of change in the alignment and shifting of the work site. After completion of the contract work, as no payments had been made towards running account bills during execution of the contract work, the petitioner made several requests to the Executive Engineer, Drainage Division, Bhubaneswar, who is the Engineer-in-charge of the contract work, for payment of his pending bills. 4. The Executive Engineer, Drainage Division, Bhubaneswar, vide his letter dated 28.8.2007, intimated the petitioner that he has not completed the work as per the approved design and disputed the claim made by the petitioner. Subsequently, vide letter dated 03.10.2007, the Executive Engineer requested the petitioner to attend the office for settlement of the matter. The petitioner was also requested to attend the office and sign the bills and accept the measurement recorded in the measurement book, to facilitate payment. 5. The case of the petitioner is that inspite of repeated approach, as the claim of the petitioner was not settled and instead several objections and allegations were made with regard to the execution of the contract work and signing of the measurement book, the petitioner served a notice on the Superintending Engineer, Drainage Circle, Cuttack, who is the higher authority, vide his letter dated 07.11.2007, for settlement of the dispute with regard to the payment of pending bills for the work executed by him, as per Clause-10 of the Agreement. The Superintending Engineer vide his letter dated 20.12.2007, rejected the claims of the petitioner with regard to the execution of the extra item of work, extra rate for extra item etc., on the ground that the same were found to be false and fabricated. Subsequently, on receipt of communication from the Executive Engineer dated 26.12.2007, making allegations against the petitioner with regard to the non-execution of the contract work as per the terms of the Agreement and fabrication of records and threatening to impose penalty, the petitioner vide his letter dated 03.1.2008, made an appeal to the Superintending Engineer to look into the matter and ensure payment of the pending bills. Having received no response, the petitioner has approached this Court under Section 11 of the Arbitration and Conciliation Act, 1996, ("the Act" for short), for appointment of Arbitrator to adjudicate the dispute between the parties. 6. Learned counsel for the petitioner submits that the Clause-10 of the Agreement, as detailed above, is essentially an arbitration clause and therefore, this Court has the jurisdiction to appointment the Arbitrator to adjudicate the dispute between the parties. In this regard, learned counsel for the petitioner has relied upon a decision of the apex Court in K.K. Modi v. K.N. Modi, (1998) 3 SCC 573 , wherein the Hon'ble Court had enumerated the attributes of a valid arbitration agreement as follows:-- "(1) The arbitration agreement must contemplate that the decision of the tribunal will be binding on the parties to the agreement, (2) That the jurisdiction of the tribunal to decide the rights of parties must derive either from the consent of the parties or from an order of the court or from a statute, the terms of which make it clear that the process is to be an arbitration, (3) The agreement must contemplate that substantive rights of parties will be determined by the agreed tribunal, (4) That the tribunal will determine the rights of the parties in an impartial and judicial manner with the tribunal owing an equal obligation of fairness towards both sides, (5) That the agreement of the parties to refer their disputes to the decision of the tribunal must be intended to be enforceable in law and lastly, (6) The agreement must contemplate that the tribunal will make a decision upon a dispute which is already formulated at the time when a reference is made to the tribunal." 7. Learned counsel for the petitioner has also relied upon the decision of the apex Court in Bihar State Mineral Development Corporation and another v. Encon Builders (I) Pvt. Ltd., AIR 2003 SC 3688 , wherein the Hon'ble Court has listed the following as the essential elements of an arbitration agreement:-- "(1) There must be a present or a future difference in connection with some contemplated affair, (2) There must be the intention of the parties to settle such difference by a private tribunal, (3) The parties must agree in writing to be bound by the decision of such tribunal, (4) The parties must be ad idem." 8. A reference has also been made to the decision of the apex Court in Jagdish Chander v. Ramesh Chander, (2007) 5 SCC 719 , wherein the Hon'ble Court after referring to the earlier decisions, culled out certain principles with regard to the term "arbitration agreement". The said principles basically emphasise on certain core aspects, namely, (i) that though there is no specific form of an arbitration agreement, yet the intention of the parties which can be gathered from the terms of the agreement should disclose a determination and obligation to go to arbitration; (ii) non-use of the words "arbitration" and "arbitral tribunal" or "arbitrator" would not detract from a clause being interpreted as an arbitration agreement if the attributes or elements of arbitration agreement are established i.e., (a) The agreement should be in writing. (b) The parties should have agreed to refer any disputes (present or future) between them to the decision of a private tribunal. (c) The private tribunal should be empowered to adjudicate upon the disputes in an impartial manner, giving due opportunity to the parties to put forth their case before it. (d) The parties should have agreed that the decision of the private tribunal in respect of the disputes will be binding on them; and (iii) where there is specific exclusion of any of the attributes of an arbitration agreement or contains anything that detracts from an arbitration agreement, it would not be an arbitration agreement. 9. Reliance has also been placed on the decision of the apex Court in Punjab State and others v. Dina Nath, (2007) 5 SCC 28 , wherein the Hon'ble Court has held as under:-- "7. A bare perusal of the definition of arbitration agreement would clearly show that an arbitration agreement is not required to be in any particular form. What is required to be ascertained is whether the parties have agreed that if any dispute arises between them in respect of the subject matter of the contract, such dispute shall be referred to arbitration. In that case such agreement would certainly spell out an arbitration agreement. [See Rukmanibai Gupta v. Collector of Jabalpur, AIR 1981 SC 479 ]. What is required to be ascertained is whether the parties have agreed that if any dispute arises between them in respect of the subject matter of the contract, such dispute shall be referred to arbitration. In that case such agreement would certainly spell out an arbitration agreement. [See Rukmanibai Gupta v. Collector of Jabalpur, AIR 1981 SC 479 ]. However, from the definition of the arbitration agreement, it is also clear that the agreement must be in writing and to interpret the agreement as an 'arbitration agreement' one has to ascertain the intention of the parties and also treatment of the decision as final. If the parties had desired and intended that a dispute must be referred to arbitration for decision and they would undertake to abide by that decision, there cannot be any difficulty to hold that the intention of the parties was to have an arbitration agreement; that is to say, an arbitration agreement immediately comes into existences." 10. Learned counsel for the petitioner has also relied upon the decision of the apex Court in Karnataka Power Transmission Corporation Limited and another v. Deepak Cables (India) Limited, (2014) 11 SCC 148 , wherein the Hon'ble Court has reiterated the aforesaid principles relating to interpretation of an arbitration agreement. 11. Learned counsel for the petitioner further submits that as per the Clause-10 of the Agreement, the Superintending Engineer is the higher authority, who is required to adjudicate the dispute raised in connection with the execution of the contract work, after hearing the parties and giving them opportunity of hearing. It is submitted that as the Superintending Engineer is a Government official in-charge of the contract work and has already expressed his opinion in the matter by rejecting the claims made by the petitioner and has raised several allegations against him with regard to the execution of the contract work, the dispute cannot be referred to him for adjudication, as he cannot be expected to act in a unbiased and impartial manner. Reference in this regard has been made to the observations of the apex Court in Encon Builders (supra), wherein it has been held that a person cannot a judge of his own cause and that justice should not only be done but manifestly seen to be done. Reference in this regard has been made to the observations of the apex Court in Encon Builders (supra), wherein it has been held that a person cannot a judge of his own cause and that justice should not only be done but manifestly seen to be done. Reference has also been made to a decision of the apex Court in Union of India v. Singh Builders Syndicate, (2009) 4 SCC 523 , wherein the Hon'ble Court has held that ordinarily the Court should appoint the Arbitrator in the manner provided for in the arbitration agreement. But where the independence and impartiality of the Arbitrator named in the arbitration agreement is in doubt, the Chief Justice or his designate is not powerless to make appropriate alternative arrangements to give effect to the provision for arbitration. 12. It is accordingly submitted that as Clause-10 of the Agreement is an arbitration clause and the higher authority referred to therein being the Superintending Engineer, who has already expressed his views in the matter, he is disqualified to act as the Arbitrator. Therefore, it is only just and proper, in the interest of justice, that this Court should appoint an Arbitrator, in exercise of its powers conferred under Section 11(6) of the Act, to adjudicate the dispute between the parties. 13. Learned counsel for the State with reference to the counter affidavit submits that the petitioner had not completed the contract work as per the terms of the Agreement. It is submitted that inspite of several requests and reminders by the Engineer-in-charge, no steps were taken by the petitioner to rectify the defects. It is further submitted that there being no instructions by the Engineer-in-charge for execution of any extra work at any point of time, the claim raised by the petitioner with regard to the extra item of work and for payment of extra rate are wholly false and frivolous. It is further submitted that as per the letter of the Executive Engineer dated 26.12.2007, it is amply clear that the petitioner had attempted to fabricate the entries made in the level book. 14. It is further submitted that as per the letter of the Executive Engineer dated 26.12.2007, it is amply clear that the petitioner had attempted to fabricate the entries made in the level book. 14. It is further submitted that as there was no change in the specification of the work item and no instructions or any directions has been issued to the petitioner for execution of any extra item of work, the claims raised by him with regard to the execution of additional items of work are false and have been raised to avoid imposition of penalty for non-completion of the contract work, as per the terms of the Agreement. 15. Learned counsel for the State further submits that Clause-10 of the Agreement, as detailed above, is not an arbitration clause and the Superintending Engineer, in terms of the said clause, is required to adjudicate the dispute between the parties to the contract with regard to the rate towards execution of the non-schedule items, which have not been quoted at the time of submission of tender in respect of the contract work. In this regard, learned counsel for the State submits that a similar clause in the F2 agreement came up for consideration before the apex Court in State of Orissa and Others v. Bhagyadhar Dash, (2011) 7 SCC 406 , wherein the Hon'ble Court while interpreting the said Clause-10 of the conditions of contract, has held that the same cannot be considered to be an arbitration agreement. 16. Learned counsel for the State has also relied upon a decision of the apex Court in P. Dasaratharama Reddy Complex v. Government of Karnataka and another, (2014) 2 SCC 201 , wherein the Hon'ble Court while referring to its earlier decisions, has come to hold that Clause-66 therein was not an arbitration clause. It is accordingly submitted that as Clause-10 of the Agreement is not an arbitration clause, the present application under Section 11 of the Act is erroneous and misconceived. 17. From the discussions made above, the question which falls for consideration is whether Clause-10 of the Agreement, as detailed above, can be construed as an arbitration agreement between the parties. It is well known that under the Act, Section 2(b) provides that an arbitration agreement means an arbitration agreement referred to in Section 7. 17. From the discussions made above, the question which falls for consideration is whether Clause-10 of the Agreement, as detailed above, can be construed as an arbitration agreement between the parties. It is well known that under the Act, Section 2(b) provides that an arbitration agreement means an arbitration agreement referred to in Section 7. The expression 'arbitration agreement' as has been explained in Section 7 of the said Act, reads as follows:-- "7.(1) In this Part, 'arbitration agreement' means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. (2) An arbitration agreement may be in the form of a arbitration clause in a contract or in the form of a separate agreement. (3) An arbitration agreement shall be in writing. (4) An arbitration agreement is in writing if it is contained in - (a) a document signed by the parties; (b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. (d) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract." 18. It is well settled that when a Court has to interpret whether a contract contains an arbitration clause or not, such interpretation has to be done on a slightly different basis. A contract that provides for arbitration is a commercial agreement inter-parties and has to be interpreted in such a manner as to give an efficacy to the agreement rather than to invalidate it. So for interpreting, such an agreement strict rules of construction which are applicable to interpret any conveyance or such other formal documents should not be applied. The meaning of such an agreement must be gathered by commonsense and such construction must not be defeated by any pedantic and rule of strict interpretation. 19. It is also now well settled in law that in order to become an arbitration agreement it is not required in the agreement between the parties, the word 'arbitration' should be mentioned. The meaning of such an agreement must be gathered by commonsense and such construction must not be defeated by any pedantic and rule of strict interpretation. 19. It is also now well settled in law that in order to become an arbitration agreement it is not required in the agreement between the parties, the word 'arbitration' should be mentioned. Further an arbitration agreement is not required to be in any particular form. The essential requirements are that the parties have intended to make a reference to arbitration and treat the decision of the Arbitrator as final. In Jagdish Chander (supra), the apex Court after referring to the cases on the issue, set out the following principles with regard to what would constitute an arbitration agreement:-- "(i) The intention of the parties to enter into an arbitration agreement shall have to be gathered from the terms of the agreement. If the terms of the agreement clearly indicate an intention on the part of the parties to the agreement to refer their disputes to a private tribunal for adjudication and willingness to be bound by the decision of such tribunal on such disputes, it is an arbitration agreement. While there is no specific form of an arbitration agreement, the words used should disclose a determination and obligation to go to arbitration and not merely contemplate the possibility of going for arbitration. Where there is merely a possibility of the parties agreeing to arbitration in future, as contrasted from an obligation to refer disputes to arbitration, there is no valid and binding arbitration agreement. (ii) Even if the words 'arbitration' and 'arbitral tribunal (or arbitrator)' are not used with reference to the process of settlement or with reference to the private tribunal which has to adjudicate upon the disputes, in a clause relating to settlement of disputes, it does not detract from the clause being an arbitration agreement if it has the attributes or elements of an arbitration agreement. They are: (a) The agreement should be in writing. (b) The parties should have agreed to refer any disputes (present or future) between them to the decision of a private tribunal. (c) The private tribunal should be empowered to adjudicate upon the disputes in an impartial manner, giving due opportunity to the parties to put forth their case before it. They are: (a) The agreement should be in writing. (b) The parties should have agreed to refer any disputes (present or future) between them to the decision of a private tribunal. (c) The private tribunal should be empowered to adjudicate upon the disputes in an impartial manner, giving due opportunity to the parties to put forth their case before it. (d) The parties should have agreed that the decision of the Private Tribunal in respect of the disputes will be binding on them. (iii) Where the clause provides that in the event of disputes arising between the parties, the disputes shall be referred to Arbitration, it is an arbitration agreement. Where there is a specific and direct expression of intent to have the disputes settled by arbitration, it is not necessary to set out the attributes of an arbitration agreement to make it an arbitration agreement. But where the clause relating to settlement of disputes, contains words which specifically exclude any of the attributes of an arbitration agreement or contains anything that detracts from an arbitration agreement, it will not be an arbitration agreement. For example, where an agreement requires or permits an authority to decide a claim or dispute without hearing, or requires the authority to act in the interests of only one of the parties, or provides that the decision of the authority will not be final and binding on the parties, or that if either party is not satisfied with the decision of the authority, he may file a civil suit seeking relief, it cannot be termed as an arbitration agreement. (iv) But mere use of the word 'arbitration' or 'arbitrator' in a clause will not make it an arbitration agreement, if it requires or contemplates a further or fresh consent of the parties for reference to arbitration. For example, use of words such as 'parties can, if they so desire, refer their disputes to arbitration' or 'in the event of any dispute, the parties may also agree to refer the same to arbitration' or 'if any disputes arise between the parties, they should consider settlement by arbitration' in a clause relating to settlement of disputes, indicate that the clause is not intended to be an arbitration agreement. Similarly, a clause which states that 'if the parties so decide, the disputes shall be referred to arbitration' or 'any disputes between parties, if they so agree, shall be referred to arbitration' is not an arbitration agreement. Such clauses merely indicate a desire or hope to have the disputes settled by arbitration, or a tentative arrangement to explore arbitration as a mode of settlement if and when a dispute arises. Such clauses require the parties to arrive at a further agreement to go to arbitration, as and when the disputes arise. Any agreement or clause in an agreement requiring or contemplating a further consent or consensus before a reference to arbitration, is not an arbitration agreement, but an agreement to enter into an arbitration agreement in future." 20. In Bhagyadhar Dash (supra), the question which fell for consideration before the apex Court was whether Clause-10 of the conditions of the contract (forming part of the agreements between the State Government and the contractors), is an arbitration agreement. The said Clause-10 of the conditions of the contract, which was the subject matter of the controversy, reads as under:-- "10. The Engineer-in-Charge shall have power to make any alterations in or additions to the original specifications, drawings, designs and instructions that may appear to him necessary and advisable during the progress of work, and the contractor shall be bound to carry out the work in accordance with any instructions which may be given to him in writing signed by the Engineer-in-Charge and such alterations shall not invalidate the contract, and any additional work which the contractor may be directed to do in the manner above specified as part of the work shall be carried out by the contractor on the same conditions in all respects on which he agreed to do the main work, and at the same rates as are specified in the tender for the main work. The time for the completion of the work shall be extended in the proportion that the additional work bears to the original contract work and the certificate of the Engineer-in-Charge shall be conclusive as to such proportion. The time for the completion of the work shall be extended in the proportion that the additional work bears to the original contract work and the certificate of the Engineer-in-Charge shall be conclusive as to such proportion. And if the additional work includes any class of work for which no rate is specified in this contract, then such class of work shall be carried out at the rates entered in the sanctioned schedule of rates of the locality during the period when the work is being carried on and if such last mentioned class of work is not entered in the schedule of rates of the district then the contractor shall within seven days of the date of the rate which it is his intention to charge for such class of work, and if the Engineer-in-Charge does not agree to this rate he shall be noticed in writing be at liberty to cancel his order to carry out such class of work and arrange to carry it out in such manner as he may consider advisable. No deviations from the specifications stipulated in the contract nor additional items of work shall ordinarily be carried out by the contractor, nor shall any altered, additional or substituted work be carried out by him, unless the rates of the substituted, altered or additional items have been approved and fixed in writing by the Engineer-in-Charge, the contractor shall be bound to submit his claim for any additional work done during any month on or before the 15th days of the following month accompanied by a copy of the order in writing of the Engineer-in-Charge for the additional work and that the contractor shall not be entitled of any payment in respect of such additional work if he fails to submit his claim within the aforesaid period: Provided always that if the contractor shall commence work or incur any expenditure in respect thereof before the rates shall have been determined as lastly hereinbefore mentioned, in such case he shall only be entitled to be paid in respect of the work carried out or expenditure incurred by him prior to the date of the determination of the rates as aforesaid according to such rate or rates as shall be fixed by the Engineer-in-Charge. In the event of a dispute, the decision of the Superintending Engineer of the Circle will be final." 21. In the event of a dispute, the decision of the Superintending Engineer of the Circle will be final." 21. Referring to its earlier decisions on the issue, the apex Court came to the conclusion that it is a clause relating to power of the Engineer-in-charge to make additions and alterations in the drawings and the specifications and execution of non-tendered additional items of work, which are not found in the bill of quantities or schedule of work. Accordingly, Hon'ble Court proceeded to hold as under:-- "We may next examine whether the last sentence of the proviso to Clause 10 could be considered to be an arbitration agreement. It does not refer to arbitration as the mode of settlement of disputes. It does not provide for reference of disputes between the parties to arbitration. It does not make the decision of the Superintending Engineer binding on either party. It does not provide or refer to any procedure which would show that the Superintending Engineer is to act judicially after considering the submissions of both parties. It does not disclose any intention to make the Superintending Engineer an arbitrator in respect of disputes that may arise between the Engineer-in-Charge and the contractor. It does not make the decision of the Superintending Engineer final on any dispute, other than the claim for increase in rates for non-tendered items. It operates in a limited sphere, that is, where in regard to a non-tendered additional work executed by the contractor, if the contractor is not satisfied with the unilateral determination of the rate therefor by the Engineer-in-Charge the rate for such work will be finally determined by the Superintending Engineer. xxx" 22. In the present case, Clause-10 of the Agreement, as detailed above, clearly provides that if the contractor is dissatisfied with the instructions or decisions of the Engineer-in-charge, the contactor may within 30 days after receiving such instructions or decisions of the Engineer-in-charge, approach to the higher authority, who shall afford an opportunity to the contractor to be heard and offer evidence in support of his appeal. The higher authority shall give its decisions within a period of 30 days after the contractor has given the said evidence in respect of his appeal, which shall be binding upon the contractor. 23. The higher authority shall give its decisions within a period of 30 days after the contractor has given the said evidence in respect of his appeal, which shall be binding upon the contractor. 23. Keeping in view the essential ingredients which would constitute an arbitration agreement, as has been laid down by the Supreme Court in the decisions referred to above, the conclusion is irresistible that the aforesaid provisions of Clause-10 of the Agreement, which provides for settlement of dispute, is an arbitration agreement. 24. Coming to the next question with regard to the reference of dispute to the Arbitrator as per Clause-10 of the Agreement, it is seen that the higher authority referred to in the said clause is the Superintending Engineer, who was in overall charge of the contract work and has already expressed his opinion with regard to the claims made by the petitioner. Therefore, he is disqualified to act as the Arbitrator, as he cannot be expected to adjudicate the matter in an independent and impartial manner. This facet of the problem was highlighted by the apex Court in Encon Builders (supra), wherein the Hon'ble Court has observed as under:-- "There cannot be any doubt whatsoever that an arbitration agreement must contain the broad consensus between the parties that the disputes and differences should be referred to a domestic tribunal. The said domestic tribunal must be an impartial one. It is a well-settled principle of law that a person cannot be a judge of his own cause. It is further well settled that justice should not only be done but manifestly seen to be done. Actual bias would lead to an automatic disqualification where the decision-maker is shown to have an interest in the outcome of the case. Actual bias denotes an arbitrator who allows a decision to be influenced by partiality or prejudice and thereby deprives the litigant of the fundamental right to a fair trial by an impartial tribunal. As the acts of bias on the part of the second appellant arose during execution of the agreement, the question as to whether the respondent herein entered into the agreement with his eyes wide open or not takes a back seat. An order which lacks inherent jurisdiction would be a nullity and, thus, the procedural law of waiver or estoppel would have no application in such a situation. An order which lacks inherent jurisdiction would be a nullity and, thus, the procedural law of waiver or estoppel would have no application in such a situation. It will bear repetition to state that the action of the second appellant itself was in question and, thus, indisputably, he could not have adjudicated thereupon in terms of the principle that nobody can be a judge of his own cause." 25. The aforesaid propositions has been highlighted by the apex Court in Singh Builders Syndicate (supra), wherein the Hon'ble Court after referring to earlier decisions, has observed as under:-- "We find that a provision for serving officers of one party being appointed as arbitrator/s brings out considerable resistance from the other party, when disputes arise. Having regard to the emphasis on independence and impartiality in the new Act, government, statutory authorities and government companies should think of phasing out arbitration clauses providing for serving officers and encourage professionalism in arbitration." 26. For the reasons as aforestated, I have no hesitation in holding that Clause-10 of the Agreement, as detailed above, is an arbitration agreement between the parties and as the higher authority referred to in the said clause is the Superintending Engineer, who is disqualified to deal with the matter, I hereby appoint Shri Justice B.P. Das, a former Judge of this Court, as the sole Arbitrator to adjudicate the dispute between the parties. The venue of the arbitration shall be at the High Court of Orissa Arbitration Centre and the proceeding shall be conducted by the learned Arbitrator as per the High Court of Orissa Arbitration Centre (Arbitration Proceedings) Rules, 2014. ARBP is accordingly allowed. This order be communicated to Shri Justice B.P. Das, forthwith.