ORDER : 1. The petitioner is before this Court seeking for the following reliefs: a. To pass an appropriate order by terminating the existing arbitral tribunal for appointment of independent and impartial Sole Arbitrator in the place of 3rd respondent as per the petitioner requests under the provisions of section 11 (6) sub-section (a) & (c) of the Arbitration and Conciliation Act, 1996 Amended Act 2015 (3 of 2016) to adjudicate the disputes/claims between the parties for the work of "SITC of Combined Effluent Treatment Plant in STC, BSF campus, Yelahanka, Bangalore SH: Construction of Sewage Treatment Plant of MBBR (Movable Bed Bioreactor) of 350 KLD capacity including electromechanical components", Contract Agreement No.16/SE/BCD111/2016-17 date 15-2-2017. b. To pass an appropriate order as per the clause 25 of GCC and also amended act 2015 (3 of 2016) by appointing independent and impartial sole arbitrator under section 11 (8) of the act for settlement of disputes/claims between the parties as per the conditions of contract. c. Pass such other orders as the Hon'ble Court deems fit in the interest of justice and equity. d. MAKE any further scheme for dealing with the matter as contemplated under sub-section (10) of section 11 of the Arbitration and Conciliation Act, 1996 Amended Act 2015 (3 of 2016). 2. c. Pass such other orders as the Hon'ble Court deems fit in the interest of justice and equity. d. MAKE any further scheme for dealing with the matter as contemplated under sub-section (10) of section 11 of the Arbitration and Conciliation Act, 1996 Amended Act 2015 (3 of 2016). 2. The petitioner having participated in a tender, had been awarded certain works in pursuance of which the work order dated 23.01.2017 came to be issued and an agreement dated 15.02.2017 came to be executed between the parties, wherein the settlement of disputes and arbitration is governed by a rather long dispute resolution clause in terms of Clause 25 thereof which is reproduced hereunder for easy reference: Clause 25: Except where otherwise provided in the contract, all questions and disputes relating to the meaning of the specifications, design, drawing and instructions here-in before mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating the contract, designs, drawings, specifications, estimates, instructions, orders conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the cancellation, termination, completion or abandonment thereof shall be dealt with as mentioned hereinafter: i. If the contractor considers any work demanded of him to be outside the requirements of contract, or disputes any drawings, record or decision given in writing by the Engineer in-Charge on any matter in connection with or arising out of the contract or carrying out of the work, to be unacceptable, he shall promptly within 15 days request the Superintending Engineer shall give his written instructions or decision within a period of one month from receipt of contractor's letter. If the Superintending Engineer fails to give his instructions or decision in writing within the aforesaid period or if the contractor is dissatisfied with the instructions or decision of the Superintending Engineer, the contractor may, within 15 days of receipt of Superintending Engineer’s decision, appeal to the Chief Engineer who shall afford an opportunity to the contractor to be heard, if the latter so desire, and to offer evidence in support his appeal. The Chief Engineer shall give his decision within 30 days of receipt contractor's appeal. The Chief Engineer shall give his decision within 30 days of receipt contractor's appeal. If the contractor is dissatisfied with the decision of the Chief Engineer, the contractor may within 30 days from the receipt of the Chief Engineer’s decision, appeal before the Dispute Redressal Committee (DRC) along with a list of disputes with amounts claimed in respect of each such dispute and giving reference to the rejection of his disputes by the Chief Engineer. The Dispute Redressal Committee (DRC) shall give his decision within a period of 90 days from the receipt of Contractor’s appeal. The constitution of Dispute Redressal Committee (DRC) shall be as indicated in Schedule 'F’. If the Dispute Redressal Committee (DRC) fails to give his decision within the aforesaid period or any party is dissatisfied with the decision of Dispute Redressal Committee (DRC), then either party may within a period of 30 days from the receipt of the decision of Dispute Redressal Committee (DRC), give notice to the Chief Engineer for appointment of arbitrator on prescribed proforma as per Appendix XV, failing which the said decision shall be final binding and conclusive and not referable to adjudication by the arbitrator. It is a term of contract that each party invoking arbitration must exhaust the aforesaid mechanism of settlement of claims/disputes prior to invoking arbitration. ii. Except where the decision has become final, binding and conclusive in terms of Sub Para (i) above, disputes or difference shall be referred for adjudication through arbitration by a sole arbitrator appointed by the Chief Engineer, CPWD, in charge of the work or if there be no Chief Engineer, the Additional Director General of the concerned region of CPWD or if there be no Additional Director General, the Special Director General or the Director General, CPWD. If the arbitrator so appointed is unable or unwilling to act or resigns his appointment or vacates his office due to any reason whatsoever, another sole arbitrator shall be appointed in the manner aforesaid. Such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor. It is a term of this contract that the party invoking arbitration shall give a list of disputes with amounts claimed in respect of each such dispute along with the notice for appointment of arbitrator and giving reference to the rejection by the Chief Engineer of the appeal. It is a term of this contract that the party invoking arbitration shall give a list of disputes with amounts claimed in respect of each such dispute along with the notice for appointment of arbitrator and giving reference to the rejection by the Chief Engineer of the appeal. It is also a term of this contract that no person, other than a person appointed by such Chief Engineer CPWD or Additional Director General or Special Director General or Director General, CPWD, as aforesaid, should act as arbitrator and if for any reason that is not possible, the matter shall not be referred to arbitration at all. It is also a term of this contract that if the contractor does not make any demand for appointment of arbitrator in respect of any claims in writing as aforesaid within 120 days of receiving the intimation from the Engineer-in-Charge that the final bill is ready for payment, the claim of the contractor shall be deemed to have been waived and absolutely barred and the Government shall be discharged and released of all liabilities under the contract in respect of these claims. The arbitration shall be conducted in accordance with the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) or any statutory modifications or re-enactment thereof and the rules made thereunder and for the time being in force shall apply the arbitration proceeding under this clause. It is also a term of this contract that the arbitrator shall adjudicate on only such disputes as are referred to him by the appointing authority and give separate award against each dispute and claim referred to him and all cases where the total amount the claims by any party exceeds Rs. 1,00,000/-, the arbitrator shall give reasons the award. It is also term the contract that if any fees are payable to the arbitrator, these shall be paid equally by both the parties. It is also a term of the contract that the arbitrator shall be deemed to have entered on the reference on the date he issues notice to both the parties calling them to submit the statement of claims and counter statement of claims. The venue of the arbitration shall be such place as may be fixed by the arbitrator in his sole discretion. The venue of the arbitration shall be such place as may be fixed by the arbitrator in his sole discretion. The fees, if any, of the arbitrator shall, if required to be paid before the award is made and published, be paid half and half by each of the parties. The cost of the reference and of the award (including the fees, if any, of the arbitrator) shall be the discretion of the arbitrator who may direct to any by whom and in what manner, such costs or any thereof shall be paid and fix or settle the amount of costs to be paid. 3. There being certain disputes that arose between the parties, the petitioner had written a letter dated 22.05.2020 for settlement of claim/disputes as per the aforesaid Clause 25 of the conditions of the contract. Respondent No.1 rejected this vide letter dated 12.06.2020. The petitioner thereafter referred the disputes to Superintending Engineer vide letter dated 12.06.2020, but there was no reply from the Superintending Engineer, as such referred the claims/disputes to the respondent No.2 for settlement. Respondent No.2 also rejected the claims of the petitioner vide letter dated 14.07.2020. The petitioner thereafter, vide letter dated 17.07.2020, wrote to respondent No.2 for appointment of DRC Member not connected with the respondents. Respondent No.2 referred the disputes/claims to the Dispute Redressal Committee vide its letter dated 12.08.2020. The petitioner had filed proceedings in Commercial A.A. No.75/2020 under Section 9 of the Arbitration and Conciliation Act, 1996 [‘A&C Act’ for short] seeking interim protection. Thereafter, the claims made by the petitioner to the DRC were rejected on 11.01.2021. Hence, the petitioner had approached respondent No.2 on 18.01.2021 for the appointment of an impartial independent arbitrator. Thus from the time dispute arose, it took nearly 8 months for the petitioner to even seek for appointment of an Arbitrator. 4. Respondent No.2 in its letter dated 01.02.2021 appointed respondent No.3 as an Arbitrator for settlement of disputes. Immediately on receipt of the said communication, respondent No.3 vide a letter dated 12.02.2021 had called upon the parties to submit their claims and counter-claims, claiming that this was done without following the procedure under Section 12(1)(b) of the A&C Act, the petitioner is before this Court seeking for the aforesaid reliefs. 5. Sri.P.Harishchandra Reddy, learned counsel for the petitioner would submit that: 5.1. 5. Sri.P.Harishchandra Reddy, learned counsel for the petitioner would submit that: 5.1. The arbitrator appointed by respondent No.2 is a former Chief Engineer of CPWD and as such, there is a conflict of interest as envisaged under Section 12(5) of the A&C Act. The Arbitrator has not complied with the requirement of Section 12(1)(b) of the A&C Act, without doing so and without furnishing the disclosure statement, he has called upon the parties to submit their respective claim/counter claim statement which is in violation of the requirements of the A&C Act for an arbitrator to be impartial and independent. 5.2. Though he does not challenge the powers of the Appointing Authority, he submits that the appointee being the former officer of the respondent, there being a possibility of conflict, the Arbitrator appointed by respondent No.2 is not agreeable to the petitioner and as such, an independent arbitrator should be appointed. 5.3. He places reliance on the decision of the Hon’ble Apex Court in Ellora Paper Mills Ltd. v. State of M.P., reported in (2022) 3 SCC 1 , more particularly paragraphs No.20 and 21 thereof which are reproduced hereunder for easy reference: 20. In view of the above and for the reasons stated hereinabove, the impugned judgment and order [Ellora Paper Mills Ltd. v. State of M.P., 2021 SCC OnLine MP 2796] passed by the High Court is contrary to the law laid down by this Court in TRF [TRF Ltd. v. Energo Engg. Projects Ltd., (2017) 8 SCC 377 : (2017) 4 SCC (Civ) 72], Bharat Broadband Network [Bharat Broadband Network Ltd. v. United Telecoms Ltd., (2019) 5 SCC 755 : (2019) 3 SCC (Civ) 1] and the recent decision of this Court in Jaipur Zila Dugdh Utpadak Sahkari Sangh [Jaipur Zila Dugdh Utpadak Sahkari Sangh Ltd. v. Ajay Sales & Suppliers, (2021) 17 SCC 248 : 2021 SCC OnLine SC 730]. It is held that the earlier Arbitral Tribunal-Stationery Purchase Committee comprising of the Additional Secretary, Department of Revenue as President, and : (i) Deputy Secretary, Department of Revenue, (ii) Deputy Secretary, General Administration Department, (iii) Deputy Secretary, Department of Finance, (iv) Deputy Secretary/Under Secretary, General Administration Department, and (v) Senior Deputy Controller of Head Office, Printing as Members, has lost its mandate by operation of law in view of Section 12(5) read with Seventh Schedule and a fresh arbitrator has to be appointed under the provisions of the Arbitration Act, 1996. The impugned judgment and order [Ellora Paper Mills Ltd. v. State of M.P., 2021 SCC OnLine MP 2796] passed by the High Court is therefore unsustainable and deserves to be quashed and set aside. 21. In view of the above and for the reasons stated above, the present appeal succeeds. The impugned judgment and order passed by the High Court of Madhya Pradesh dated 27-8-2021 passed in Ellora Paper Mills Ltd. v. State of M.P., 2021 SCC OnLine MP 2796 is hereby quashed and set aside and the application being AC No. 100 of 2019 filed by the appellant herein before the High Court is hereby allowed. It is declared that the earlier Arbitral Tribunal-Stationery Purchase Committee comprising of the Additional Secretary, Department of Revenue as President, and : (i) Deputy Secretary, Department of Revenue, (ii) Deputy Secretary, General Administration Department, (iii) Deputy Secretary, Department of Finance, (iv) Deputy Secretary/Under Secretary, General Administration Department, and (v) Senior Deputy Controller of Head Office, Printing as Members are ineligible to act/continue as arbitrators in view of sub-section (5) of Section 12 read with Seventh Schedule of the Arbitration Act, 1996 and therefore a fresh arbitrator under the provisions of the Arbitration Act, 1996 is to be appointed to adjudicate upon and resolve the dispute between the parties. 5.4. Relying on the above, he submits that an independent Arbitrator may be appointed by this Court. 6. Per contra, Sri.M.N.Kumar, learned counsel for the respondents would submit that 6.1. There cannot be a conflict between a past employee and the respondent inasmuch as the respondent not having any superintendence powers, supervisory powers or disciplinary powers, the arbitrator appointed would act independently and as such, there is no violation of Section 12(5) of the A&C Act. 6.2. 6. Per contra, Sri.M.N.Kumar, learned counsel for the respondents would submit that 6.1. There cannot be a conflict between a past employee and the respondent inasmuch as the respondent not having any superintendence powers, supervisory powers or disciplinary powers, the arbitrator appointed would act independently and as such, there is no violation of Section 12(5) of the A&C Act. 6.2. The restrictions in terms of Section 12(5) firstly would not apply to the Appointing Authority and secondly would not apply to a former employee of the respondent. In this connection he relies upon the decision of the Apex Court in the case of Government of Haryana PWD Haryana (B&R) Branch vs GF Toll Road Private Limited and others reported in (2019) 3 SCC 505 ], more particularly paragraphs 17, 21 to 25 thereof which is reproduced hereunder for easy reference: 17. The objection raised by ICA with respect to the appointment of Mr M.K. Aggarwal as the nominee of the State was wholly unjustified and contrary to the provisions of the 1996 Act. The objection raised by Respondent 2 ICA to the arbitrator nominated by the appellant State, was that the nominee arbitrator was a retired employee of the appellant State, and as such there may be justifiable doubts to his independence and impartiality to act as an arbitrator. 21. The 1996 Act does not disqualify a former employee from acting as an arbitrator, provided that there are no justifiable doubts as to his independence and impartiality. The fact that the arbitrator was in the employment of the State of Haryana over 10 years ago, would make the allegation of bias clearly untenable. 22. The present case is governed by the pre-amended 1996 Act. Even as per the 2015 Amendment Act which has inserted the Fifth Schedule to the 1996 Act which contains grounds to determine whether circumstances exist which give rise to justifiable doubts as to the independence or impartiality of an arbitrator. The first entry to the Fifth Schedule reads as under: “Arbitrator's relationship with the parties or counsel 1. The arbitrator is an employee, consultant, advisor or has any other past or present business relationship with a party.” (emphasis supplied) Entry 1 of the Fifth Schedule and the Seventh Schedule are identical. The first entry to the Fifth Schedule reads as under: “Arbitrator's relationship with the parties or counsel 1. The arbitrator is an employee, consultant, advisor or has any other past or present business relationship with a party.” (emphasis supplied) Entry 1 of the Fifth Schedule and the Seventh Schedule are identical. The entry indicates that a person, who is related to a party as an employee, consultant, or an advisor, is disqualified to act as an arbitrator. The words “is an” indicate that the person so nominated is only disqualified if he/she is a present/current employee, consultant, or advisor of one of the parties. 23. An arbitrator who has “any other” past or present “business relationship” with the party is also disqualified. The word “other” used in Entry 1, would indicate a relationship other than an employee, consultant or an advisor. The word “other” cannot be used to widen the scope of the entry to include past/former employees. 24. ICA made only a bald assertion that the nominee arbitrator Mr M.K. Aggarwal would not be independent and impartial. The objection of reasonable apprehension of bias raised was wholly unjustified and unsubstantiated, particularly since the nominee arbitrator was a former employee of the State over 10 years ago. This would not disqualify him from acting as an arbitrator. Mere allegations of bias are not a ground for removal of an arbitrator. It is also relevant to state that the appointment had been made prior to the 2015 Amendment Act when the Fifth Schedule was not inserted. Hence, the objection raised by ICA was untenable on that ground also. 25. In this view of the matter, the impugned judgment dated 1-3-2018 passed by the Punjab and Haryana High Court in State of Haryana v. G.F. Toll Road (P) Ltd., 2018 SCC OnLine P&H 2587 is set aside. 6.3. Though various other citations have been produced along with a memo of citations, Shri M N Kumar does not rely upon the same. 6.4. By relying on the decision in GF Toll Road case (supra) he submits that A&C Act, 1996 does not disqualify a former employee from acting as an arbitrator. Here, the former employee having been appointed, the same cannot be found fault with. 6.4. By relying on the decision in GF Toll Road case (supra) he submits that A&C Act, 1996 does not disqualify a former employee from acting as an arbitrator. Here, the former employee having been appointed, the same cannot be found fault with. If at all the petitioner is aggrieved by the same, the petitioner has a redressal mechanism in terms of Section 13 of the A&C Act and as such, the petitioner cannot approach this Court under Section 11 of the A&C Act once the arbitrator has been appointed. 6.5. On these grounds he submits that the petition requires to be dismissed. 7. Heard Sri. Harischandra Reddy. P, learned counsel for the petitioner and Sri.M.N.Kumar, learned CGC for the respondents No.1 and 2. Perused papers. 8. A short point that would arise for determination is: “Whether the bar under Section 12(5) of the A&C Act would apply to a former employee or not?” 9. Section 12 and Section 13 of the A&C Act are reproduced hereunder for easy reference: 12. Grounds for challenge.- [(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances,- (a) such as the existence either direct or indirect, of any past or present relationship with or interest in any of the parties or in relation to the subject-matter in dispute, whether financial, business, professional or other kind, which is likely to give rise to justifiable doubts as to his independence or impartiality; and (b) which are likely to affect his ability to devote sufficient time to the arbitration and in particular his ability to complete the entire arbitration within a period of twelve months. Explanation 1.-The grounds stated in the Fifth Schedule shall guide in determining whether circumstances exist which give rise to justifiable doubts as to the independence or impartiality of an arbitrator. Explanation 2.-The disclosure shall be made by such person in the form specified in the Sixth Schedule.] (2) An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall, without delay, disclose to the parties in writing any circumstances referred to in sub-section (1) unless they have already been informed of them by him. Explanation 2.-The disclosure shall be made by such person in the form specified in the Sixth Schedule.] (2) An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall, without delay, disclose to the parties in writing any circumstances referred to in sub-section (1) unless they have already been informed of them by him. (3) An arbitrator may be challenged only if (a) circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or (b) he does not possess the qualifications agreed to by the parties. (4) A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made. [(5) Notwithstanding any prior agreement to the contrary, any person whose relationship, with the parties or counsel or the subject-matter of the dispute, falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator: Provided that parties may, subsequent to disputes having arisen between them, waive the applicability of this sub-section by an express agreement in writing.] 13. Challenge procedure.- (1) Subject to sub-section (4), the parties are free to agree on a procedure for challenging an arbitrator. (2) Failing any agreement referred to in sub-section (1), a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstances referred to in sub-section(3) of section 12, send a written statement of the reasons for the challenge to the arbitral tribunal. (3) Unless the arbitrator challenged under sub-section (2) withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge. (4) If a challenge under any procedure agreed upon by the parties or under the procedure under sub-section (2) is not successful, the arbitral tribunal shall continue the arbitral proceedings and make an arbitral award. (5) Where an arbitral award is made under sub-section (4), the party challenging the arbitrator may make an application for setting aside such an arbitral award in accordance with section 34. (6) Where an arbitral award is set aside on an application made under sub-section (5), the Court may decide as to whether the arbitrator who is challenged is entitled to any fees. 10. (6) Where an arbitral award is set aside on an application made under sub-section (5), the Court may decide as to whether the arbitrator who is challenged is entitled to any fees. 10. Section 12(5) refers to the categories mentioned in Seventh Schedule making the persons named in the said Seventh schedule to be ineligible to be appointed as an arbitrator. The Seventh schedule is reproduced hereunder for easy reference: THE SEVENTH SCHEDULE Arbitrator’s relationship with the parties or counsel 1. The arbitrator is an employee, consultant, advisor or has any other past or present business relationship with a party. 2. The arbitrator currently represents or advises one of the parties or an affiliate of one of the parties. 3. The arbitrator currently represents the lawyer or law firm acting as counsel for one of the parties. 4. The arbitrator is a lawyer in the same law firm which is representing one of the parties. 5. The arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an affiliate of one of the parties if the affiliate is directly involved in the matters in dispute in the arbitration. 6. The arbitrator’s law firm had a previous but terminated involvement in the case without the arbitrator being involved himself or herself. 7. The arbitrator’s law firm currently has a significant commercial relationship with one of the parties or an affiliate of one of the parties. 8. The arbitrator regularly advises the appointing party or an affiliate of the appointing party even though neither the arbitrator nor his or her firm derives a significant financial income therefrom. 9. The arbitrator has a close family relationship with one of the parties and in the case of companies with the persons in the management and controlling the company. 10. A close family member of the arbitrator has a significant financial interest in one of the parties or an affiliate of one of the parties. 11. The arbitrator is a legal representative of an entity that is a party in the arbitration. 12. The arbitrator is a manager, director or part of the management, or has a similar controlling influence in one of the parties. 13. The arbitrator has a significant financial interest in one of the parties or the outcome of the case. 14. 11. The arbitrator is a legal representative of an entity that is a party in the arbitration. 12. The arbitrator is a manager, director or part of the management, or has a similar controlling influence in one of the parties. 13. The arbitrator has a significant financial interest in one of the parties or the outcome of the case. 14. The arbitrator regularly advises the appointing party or an affiliate of the appointing party, and the arbitrator or his or her firm derives a significant financial income therefrom. Relationship of the arbitrator to the dispute 15. The arbitrator has given legal advice or provided an expert opinion on the dispute to a party or an affiliate of one of the parties. 16. The arbitrator has previous involvement in the case. Arbitrator’s direct or indirect interest in the dispute 17. The arbitrator holds shares, either directly or indirectly, in one of the parties or an affiliate of one of the parties that is privately held. 18. A close family member of the arbitrator has a significant financial interest in the outcome of the dispute. 19. The arbitrator or a close family member of the arbitrator has a close relationship with a third party who may be liable to recourse on the part of the unsuccessful party in the dispute. Explanation 1: The term “close family member” refers to a spouse, sibling, child, parent or life partner. Explanation 2: The term “affiliate” encompasses all companies in one group of companies including the parent company. Explanation 3: For the removal of doubts, it is clarified that it may be the practice in certain specific kinds of arbitration, such as maritime or commodities arbitration, to draw arbitrators from a small, specialised pool. If in such fields it is the custom and practice for parties frequently to appoint the same arbitrator in different cases, this is a relevant fact to be taken into account while applying the rules set out above.] 11. If in such fields it is the custom and practice for parties frequently to appoint the same arbitrator in different cases, this is a relevant fact to be taken into account while applying the rules set out above.] 11. In terms of Section 12(1)(a), a person when approached in connection with his possible appointment, is required to disclose, in writing, any circumstances either direct or indirect of any past or present relationship which would give rise to justifiable doubts as to his independence or impartiality Explanation (1) to Section 12 of the A&C Act provides that the grounds stated in the Fifth Schedule shall guide in determining the circumstances whether gives rise to independence or impartiality of an arbitrator. Fifth Schedule is reproduced hereunder for easy reference: THE FIFTH SCHEDULE The following grounds give rise to justifiable doubts as to the independence or impartiality of arbitrators: Arbitrator’s relationship with the parties or counsel 1. The arbitrator is an employee, consultant, advisor or has any other past or present business relationship with a party. 2. The arbitrator currently represents or advises one of the parties or an affiliate of one of the parties. 3. The arbitrator currently represents the lawyer or law firm acting as counsel for one of the parties. 4. The arbitrator is a lawyer in the same law firm which is representing one of the parties. 5. The arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an affiliate of one of the parties if the affiliate is directly involved in the matters in dispute in the arbitration. 6. The arbitrator’s law firm had a previous but terminated involvement in the case without the arbitrator being involved himself or herself. 7. The arbitrator’s law firm currently has a significant commercial relationship with one of the parties or an affiliate of one of the parties. 8. The arbitrator regularly advises the appointing party or an affiliate of the appointing party even though neither the arbitrator nor his or her firm derives a significant financial income therefrom. 9. The arbitrator has a close family relationship with one of the parties and in the case of companies with the persons in the management and controlling the company. 10. A close family member of the arbitrator has a significant financial interest in one of the parties or an affiliate of one of the parties. 9. The arbitrator has a close family relationship with one of the parties and in the case of companies with the persons in the management and controlling the company. 10. A close family member of the arbitrator has a significant financial interest in one of the parties or an affiliate of one of the parties. 11. The arbitrator is a legal representative of an entity that is a party in the arbitration. 12. The arbitrator is a manager, director or part of the management, or has a similar controlling influence in one of the parties. 13. The arbitrator has a significant financial interest in one of the parties or the outcome of the case. 14. The arbitrator regularly advises the appointing party or an affiliate of the appointing party, and the arbitrator or his or her firm derives a significant financial income therefrom. Relationship of the arbitrator to the dispute 15. The arbitrator has given legal advice or provided an expert opinion on the dispute to a party or an affiliate of one of the parties. 16. The arbitrator has previous involvement in the case. Arbitrator’s direct or indirect interest in the dispute 17. The arbitrator holds shares, either directly or indirectly, in one of the parties or an affiliate of one of the parties that is privately held. 18. A close family member of the arbitrator has a significant financial interest in the outcome of the dispute. 19. The arbitrator or a close family member of the arbitrator has a close relationship with a third party who may be liable to recourse on the part of the unsuccessful party in the dispute. Previous services for one of the parties or other involvement in the case 20. The arbitrator has within the past three years served as counsel for one of the parties or an affiliate of one of the parties or has previously advised or been consulted by the party or an affiliate of the party making the appointment in an unrelated matter, but the arbitrator and the party or the affiliate of the party have no ongoing relationship. 21. The arbitrator has within the past three years served as counsel against one of the parties or an affiliate of one of the parties in an unrelated matter. 22. 21. The arbitrator has within the past three years served as counsel against one of the parties or an affiliate of one of the parties in an unrelated matter. 22. The arbitrator has within the past three years been appointed as arbitrator on two or more occasions by one of the parties or an affiliate of one of the parties. 23. The arbitrator’s law firm has within the past three years acted for one of the parties or an affiliate of one of the parties in an unrelated matter without the involvement of the arbitrator. 24. The arbitrator currently serves, or has served within the past three years, as arbitrator in another arbitration on a related issue involving one of the parties or an affiliate of one of the parties. Relationship between an arbitrator and another arbitrator or counsel 25. The arbitrator and another arbitrator are lawyers in the same law firm. 26. The arbitrator was within the past three years a partner of, or otherwise affiliated with, another arbitrator or any of the counsel in the same arbitration. 27. A lawyer in the arbitrator’s law firm is an arbitrator in another dispute involving the same party or parties or an affiliate of one of the parties. 28. A close family member of the arbitrator is a partner or employee of the law firm representing one of the parties, but is not assisting with the dispute. 29. The arbitrator has within the past three years received more than three appointments by the same counsel or the same law firm. Relationship between arbitrator and party and others involved in the arbitration 30. The arbitrator’s law firm is currently acting adverse to one of the parties or an affiliate of one of the parties. 31. The arbitrator had been associated within the past three years with a party or an affiliate of one of the parties in a professional capacity, such as a former employee or partner. Other circumstances 32. The arbitrator holds shares, either directly or indirectly, which by reason of number or denomination constitute a material holding in one of the parties or an affiliate of one of the parties that is publicly listed. 33. The arbitrator holds a position in an arbitration institution with appointing authority over the dispute. 34. Other circumstances 32. The arbitrator holds shares, either directly or indirectly, which by reason of number or denomination constitute a material holding in one of the parties or an affiliate of one of the parties that is publicly listed. 33. The arbitrator holds a position in an arbitration institution with appointing authority over the dispute. 34. The arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an affiliate of one of the parties, where the affiliate is not directly involved in the matters in dispute in the arbitration. Explanation 1: The term “close family member” refers to a spouse, sibling, child, parent or life partner. Explanation 2: The term “affiliate” encompasses all companies in one group of companies including the parent company. Explanation 3: For the removal of doubts, it is clarified that it may be the practice in certain specific kinds of arbitration, such as maritime or commodities arbitration, to draw arbitrators from a small, specialised pool. If in such fields it is the custom and practice for parties frequently to appoint the same arbitrator in different cases, this is a relevant fact to be taken into account while applying the rules set out above. 12. In terms of explanation (b) to Section 12(1), the form of disclosure is provided in terms of VI Schedule. Sixth Schedule is reproduced hereunder for easy reference: NAME: CONTACT DETAILS: PRIOR EXPERIENCE (INCLUDING EXPERIENCE WITH ARBITRATIONS): NUMBER OF ONGOING ARBITRATIONS: CIRCUMSTANCES DISCLOSING ANY PAST OR PRESENT RELATIONSHIP WITH ORINTEREST IN ANY OF THE PARTIES OR IN RELATION TO THE SUBJECT-MATTER INDISPUTE, WHETHER FINANCIAL, BUSINESS, PROFESSIONAL OR OTHER KIND,WHICH IS LIKELY TO GIVE RISE TO JUSTIFIABLE DOUBTS AS TO YOURINDEPENDENCE OR IMPARTIALITY (LIST OUT): CIRCUMSTANCES WHICH ARE LIKELY TO AFFECT YOUR ABILITY TO DEVOTE SUFFICIENT TIME TO THE ARBITRATION AND IN PARTICULAR YOUR ABILITY TO FINISH THE ENTIRE ARBITRATION WITHIN TWELVE MONTHS (LIST OUT): 13. Any of the Entries in the Seventh Schedule if attracted would make a person ineligible to be appointed as an Arbitrator. Any of the Entries in Fifth Schedule if attracted gives rise to justifiable doubt as to the independence or impartiality of a person to be appointed as an arbitrator. Any of the Entries in the Seventh Schedule if attracted would make a person ineligible to be appointed as an Arbitrator. Any of the Entries in Fifth Schedule if attracted gives rise to justifiable doubt as to the independence or impartiality of a person to be appointed as an arbitrator. It is therefore required that while issuing a disclosure in pursuance of Sixth Schedule, a disclosure is required to be made by the proposed Arbitrator adverting to all the entries in the Fifth and Seventh Schedule. 14. In the present case, Sri.B.N.Nagaraja, Chief Engineer (Retired) was appointed as an Arbitrator. Sri.B.N.Nagaraja had on 04.02.2021 submitted a disclosure statement to the respondent-Appointing Authority vide Annexure-R3 giving his details wherein he has declared that there are no circumstances which exist, which give rise to justifiable doubts as to his ability to act independently or impartially in the case, however such a disclosure does not refer to each and every entry in the Fifth and Seventh Schedule. 15. In the row entitled prior experience, he has stated “2 cases with PWD, Andaman and Nicobar Islands, 4 cases with CPWD-CE (SZ), 3 Bangalore”. 16. CPWD-CE (SZ), 3 Bangalore is none other than respondent No.1 herein. Subsequent thereto he has been appointed as an Arbitrator by the Chief Engineer of the respondent vide his letter dated 10.02.2021 and the Arbitrator vide his letter dated 12.02.2021 called upon the parties to provide their information, as also to submit their claims and counter claims. 17. Thereafter, the petitioner has raised his objection on 02.03.2021 contending that Sri.B.N.Nagaraja is not an independent Arbitrator since he was the former Chief Engineer of CPWD and as such, does not satisfy the requirement of amended A&C Act. 18. Respondent No.1 vide letter dated 08.03.2021 replied to the same stating that a disclosure statement had been provided by Sri.B.N.Nagaraja and since Sri.B.N.Nagaraja is no longer the employee/consultant/advisor of the department, he is an independent and impartial person qualified to act as an Arbitrator and as such rejected the contention of the petitioner. 19. From the above facts, it is clear that firstly there is a disclosure which has been made by Sri.B.N.Nagaraja in the format prescribed in Sixth schedule and in the said disclosure, he has stated that there is no justifiable reason to affect his impartiality, but however, he has stated that he at present is handling four arbitrations for CPWD. 19. From the above facts, it is clear that firstly there is a disclosure which has been made by Sri.B.N.Nagaraja in the format prescribed in Sixth schedule and in the said disclosure, he has stated that there is no justifiable reason to affect his impartiality, but however, he has stated that he at present is handling four arbitrations for CPWD. The said disclosure is not a complete disclosure in as much the Arbitrator when approached ought to have referred to each of the entries of the Fifth schedule and Seventh Schedule and answered each item in the affirmative or negative. It is not the subjective satisfaction or self certification of the Arbitrator but the justifiability of doubt which would have to be considered by the Section 11 court while appointing an Arbitrator. 20. The contention of Sri.M.N.Kumar, learned counsel for the respondents by relying on GF Toll Road case (supra) is that A&C Act, 1996 does not disqualify a former employee from acting as an Arbitrator. 21. There is no such categorical statement made by the Hon’ble Apex Court, the Hon’ble Apex Court being mindful of the fact that there cannot be a straight jacket formula prescribed in such cases has qualified the statement by stating that the same is provided there are no justifiable doubts as to his independence and impartiality. Thus, the Hon’ble Apex Court in the said decision did not categorically state that there is no bar for a former employee to act as an Arbitrator, but qualified it by stating that the same is so provided if there are no justifiable doubts as to his independence. 22. What this Court in the present matter would have to look into and decide is whether there are any justifiable doubts as to the independence or impartiality of the Arbitrator appointed or not in the light of the grievance raised by the petitioner and the petitioner not being acceptable to the said Arbitrator arbitrating the disputes between the parties. 23. Admittedly, the Arbitrator was a former employee of the respondent who is retired. As held by the Hon’ble Apex Court in GF Toll Road Private Limited case (supra), the same would not by itself disqualify the person from being appointed as an Arbitrator. 24. 23. Admittedly, the Arbitrator was a former employee of the respondent who is retired. As held by the Hon’ble Apex Court in GF Toll Road Private Limited case (supra), the same would not by itself disqualify the person from being appointed as an Arbitrator. 24. A perusal of the disclosure statement indicates that major work that the said arbitrator has done post his retirement is for the CPWD inasmuch as he has done two cases with PWD, Andaman and Nicobar, four case CPWD CE (SZ)-3, Bangalore. This being more relevant for the fact that the respondent is CPWD CE (SZ)-3, Bangalore. Thus, the only work done of significance by the arbitrator is that with the respondent. Though the same may not amount to business relationship, I cannot absolutely accept the independence of the said Arbitrator, since he has done four arbitrations for the respondent and his appointment for further matters would probably be on the basis of the award that he may pass in the matters that he has been appointed. Entry 22 and 29 of the Fifth Schedule to A&C Act read as under 22. The arbitrator has within the past three years been appointed as arbitrator on two or more occasions by one of the parties or an affiliate of one of the parties. 29. The arbitrator has within the past three years received more than three appointments by the same counsel or the same law firm. 25. Both the above entries get attracted in the present case since the Arbitrator appointed is already an arbitrator in 4 other Arbitrations involving the Respondent. 26. It is this possibility of there being conflict of interest that necessitated the amendment to Section 12 A&C Act being brought about in the year 2015. The basis being "Uxorem Caesaris tam suspicione quam crimine carere oportet" (Caesar's wife should be free from suspicion, as well as from accusation). 27. It is also trite to state that Justice must not only be done but seen to be done. The basis being "Uxorem Caesaris tam suspicione quam crimine carere oportet" (Caesar's wife should be free from suspicion, as well as from accusation). 27. It is also trite to state that Justice must not only be done but seen to be done. An Arbitral Tribunal being a creature of contract between parties, it is required that the parties to the arbitration atleast commence the arbitration without any misgivings about the arbitrator’s independence, in the present case there is no dispute as regards the existence of the arbitration agreement or arbitrability of the dispute, the only issue is as regards the arbitrator, it is not that there is anything in particular which would establish that the arbitrator is not independent. The legislature in its wisdom has rightly used the words “justifiable doubts as to the independence or impartiality of arbitrators”. In the facts and circumstances I’am of the opinion that the doubts on part of the petitioner are justifiable. Statutory authorities and or governmental bodies cannot seek to appoint an Arbitrator whose independence is doubted justifiably by the contractor. 28. The requirement of A&C Act is for an independent Arbitrator to be appointed, so that he/she would be in a position to decide the matter impartially and as such, reducing the possibility of a challenge to an arbitral award being passed by such an Arbitrator. While considering the question of appointment of an Arbitrator or otherwise, it would be required of this Court to take into consideration the possibility of conflict of interest, so that time spent on the arbitration is not wasted and or is not set at nought. 29. It is required for the courts to appoint an Arbitrator expeditiously, this does not in my considered opinion negate the consideration of further wastage of time in the proceedings by challenge to the impartiality of an arbitrator. In the interest of speedy arbitration it is required of this court to appoint an Arbitrator acceptable to one and all so as avoid any delay in such challenge proceedings. 30. In the interest of speedy arbitration it is required of this court to appoint an Arbitrator acceptable to one and all so as avoid any delay in such challenge proceedings. 30. Though Sri.Harischandra Reddy, learned counsel for the petitioner relied upon Ellora Paper Mills’s case (supra), that was a case whether Arbitrators were already appointed and Arbitral Tribunal had been constituted prior to the amendment and it is on account of amendment that the Hon’ble Apex Court has held that the Tribunal constituted has lost its mandate on account of conflict of interest as per the principles enumerated in Section 12(5) A&C Act by way of the amendment. The said decision would not apply since the appointment of an Arbitrator is post the coming into force of the amendment. Be that as it may, the principles laid down therein would be relevant insofar as the mandate of arbitrator is concerned since the Hon’ble Apex Court has said that the person who comes within the mischief of Section 12(5) would not have a mandate to be an Arbitrator. 31. In the present case, I am of the considered opinion that there are justifiable grounds about the Arbitrator being independent or impartial and therefore, would come within the mischief of Section 12(5) of the A&C Act. Therefore, whether the appointment is made prior to amendment or post amendment, I am of the considered opinion that the disqualification on account of possible conflict of interest and justifiable grounds of impartiality and independence would apply to the Arbitrator appointed by the respondent. When such a disqualification is exfacie evident, I am of the considered opinion that there would be no purpose served by this Court permitting the petitioner to raise the issue by filing necessary challenge before the Arbitrator in terms of Section 13 of the A&C Act. 32. Having come to a conclusion that there being a justifiable doubt as to the independence or impartiality of the Arbitrator. As such, I am of the considered opinion that the above petition would be required to be allowed and an independent and impartial third party Arbitrator be appointed in the place of the Arbitrator already appointed by respondent. 33. Hence, I pass the following: ORDER i. Sri. As such, I am of the considered opinion that the above petition would be required to be allowed and an independent and impartial third party Arbitrator be appointed in the place of the Arbitrator already appointed by respondent. 33. Hence, I pass the following: ORDER i. Sri. H. M. Nanjundaswamy., a retired District Judge of the District Judiciary of the State of Karnataka is appointed as a sole arbitrator to arbitrate the dispute between the parties. ii. The arbitration to be carried out under the aegis of the Bangalore Arbitration Centre. CMP No. 168 of 2021 iii. Registry is directed to forward a copy of this order to the Director, Bangalore Arbitration Centre for doing needful. iv. All contentions are left open.