G H CENTRAL ORGANISATION FOR RAILWAY ELECTRIFICATION versus M/S ECI-SPIC-SMO-MCML (JV)JOINT VENTURE COMPANY on 17 December 2019

SUPREME COURT REPORTS

[2019] 16 S.C.R.

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CENTRAL ORGANISATION FORRAILWAY ELECTRIFICATION

v.

M/S ECI-SPIC-SMO-MCML (JV)A JOINT VENTURE COMPANY

B

(Civil Appeal Nos. 9486-9487 of 2019)

DECEMBER 17, 2019

[R. BANUMATHI, A. S. BOPANNA ANDHRISHIKESH ROY, JJ.]

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Arbitration and Conciliation Act, 1996:

s.11(6) – Application under – Seeking appointment of solearbitrator – High Court appointed a sole Arbitrator – Appeal toSupreme Court – Held: High Court was not justified in appointingan independent sole arbitrator ignoring Clauses 64(3)(a)(ii) andD64(3)(b) of General Conditions of Contract whereby it wasspecifically provided that Arbitral Tribunal would consist of threearbitrators from out of the panel of serving or retired RailwayOfficers – The appointment of the Arbitrators should have beenin terms of the agreement between the parties.

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Allowing the appeals, the Court

HELD: 1.1 Clause 64 of the General Conditions ofContract (GCC) deals with the procedure for resolution of thedisputes and provides for “Demand for arbitration” andappointment of the arbitrators. After coming into force ofFArbitration and Conciliation (Amendment) Act, 2015, theGovernment of India, Ministry of Railways made a modificationto Clause 64 of the General Conditions of Contract and theRailway Board issued a notification dated 16.11.2016 in thisregard. The modified Clause 64(3)(a)(i) (where applicability ofGSection 12(5) of the Arbitration and Conciliation Act, 1996 hasbeen waived off inter alia provided that in case where the totalvalue of all claims in question added together does not exceedrupees one crore, the arbitral tribunal shall consist of a solearbitrator who shall be a Gazetted Officer of Railways not belowJA Grade nominated by the General Manager. In terms of Clause H

64(3)(a)(i), the sole arbitrator shall be appointed within sixty daysfrom the day when a written and valid demand for arbitration isreceived by the General Manager. In the present case, sincethe value of the work contract is worth more than Rs.165 crores,Clause 64(3)(a)(i) is not applicable. Clause 64(3)(a)(ii) of GCCdeals with cases not covered by Clause 64(3)(a)(i) whereapplicability of Section 12(5) of the Act has been waived off.[Paras 15-17] [1245-A-G-H; 1246-A-B]

1.2 Clause 64(3)(b) of GCC deals with appointment ofarbitrator where applicability of Section 12(5) of the Act has notbeen waived off. The modified Clause 64(3)(b) inter alia providedthat the arbitral tribunal shall consist of a panel of three retiredrailway officers not below the rank of SAO officer as arbitrator.For this purpose, the Railway will send a panel of at least fournames of retired railway officer(s) empanelled. The contractorwill be asked to suggest to the General Manager at least twonames out of the panel for appointment as the contractor’snominee and the General Manager shall appoint at least one outof them as the contractor’s nominee. The General Manager willalso simultaneously appoint the balance number of arbitratorsfrom the panel or from outside the panel. [Para 18] [1246-F-H]

1.3 After coming into force of the Arbitration andConciliation (Amendment) Act, 2015, when Clause 64 of theGeneral Conditions of Contract was modified inter alia providingfor constitution of Arbitral Tribunal consisting of three arbitratorseither serving or retired railway officers, the High Court is notjustified in appointing an independent sole arbitrator withoutresorting to the procedure for appointment of the arbitrator asprescribed under Clause 64(3)(b) of the General Conditions ofContract. [Para 19] [1247-E-F]

1.4 Even in the application filed under Section 11(6) of theArbitration and Conciliation Act, 1996, the respondent prayedfor appointment of a sole arbitrator in terms of Clause 1.2.54(b)(i)of the Tender Agreement/Clause 64 of the General Conditionsof Contract for adjudicating the disputes which have arisenbetween the parties. The respondent itself sought forappointment of arbitrator in terms of Clause 64 of the GeneralConditions of Contract. As the value of the work contract was AB

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Aworth more than Rs.165 crores, the dispute can be resolved onlyby a panel of three arbitrators in terms of Clause 64(3)(b) of theGeneral Conditions of Contract. The respondent was not rightin seeking for appointment of a sole arbitrator in terms of Clause1.2.54(b)(i) of the Tender Agreement/Clause 64 of the GeneralConditions of Contract. [Para 20] [1247-G-H; 1248-A]B

Union of India v. Parmar Construction Company(2019) SCC Online SC 442 ; Union of India v.Pradeep Vinod Construction Company (2019) SCCOnline SC 1467 ; Government of Haryana PWDHaryana (B and R) Branch v. G.F. Toll Road PrivateCLimited and Others (2019) 3 SCC 505 : [2019] 1 SCR270 – relied on.

Voestalpine Schienen Gmbh v. Delhi Metro RailCorporation Limited (2017) 4 SCC 665 ; BharatBroadband Network Limited v. United Telecoms LimitedD(2019) 5 SCC 755 – referred to.

2. The appellant has forwarded a list of four retired railwayofficers on its panel thereby giving a wide choice to therespondent to suggest any two names to be nominated asarbitrators out of which, one will be nominated as the arbitratorErepresenting the respondent-Contractor. The very reason forempanelling the retired railway officers is to ensure that thetechnical aspects of the dispute are suitably resolved by utilisingtheir expertise when they act as arbitrators. Merely because thepanel of the arbitrators are the retired employees who haveFworked in the Railways, it does not make them ineligible to actas the arbitrators. [Para 27] [1251-A-B]

Voestalpine Schienen Gmbh v. Delhi Metro RailCorporation Limited (2017) 4 SCC 665; BharatBroadband Network Limited v. United Telecoms LimitedG(2019) 5 SCC 755 – relied on.

3. By the letter dated 26.09.2018, the respondentconveyed their disagreement in waiving the applicability ofSection 12(5) of the Amendment Act, 2015. By the letter dated25.10.2018, in terms of Clause 64(3)(b) of GCC (whereHapplicability of Section 12(5) has not been waived off) the appellant has nominated a panel of four retired railway officersto act as arbitrators and requested the respondent to select anytwo from the list and communicate to the appellant within thirtydays from the date of the letter for formation of ArbitrationTribunal. The respondent has neither sent its reply nor selectedtwo names from the list and replied to the appellant. Withoutresponding to the appellant, the respondent has filed petitionunder Section 11(6) of the Arbitration and Conciliation Act beforethe High Court on 17.12.2018. When the respondent has notsent any reply to the communication dated 25.10.2018, therespondent is not justified in contending that the appointmentof Arbitral Tribunal has not been made before filing of theapplication under Section 11 of the Act and that the right of theappellant to constitute Arbitral Tribunal is extinguished on filingof the application under Section 11(6) of the Act. [Para 30] [1253-B-E]

Punj Lloyd Ltd. v. Petronet MHB Ltd. (2006) 2 SCC638 ; Union of India v. Bharat Battery Manufacturing–Co. (P) Ltd. (2007) 7 SCC 684 : [2007] 8 SCR 993 referred to.

4. In the present matter, after the respondent had sent theletter dated 27.07.2018 calling upon the appellant to constituteArbitral Tribunal, the appellant sent the communication dated24.09.2018 nominating the panel of serving officers of JuniorAdministrative Grade to act as arbitrators and asked therespondent to select any two from the list and communicate tothe office of the General Manager. By the letter dated26.09.2018, the respondent conveyed their disagreement inwaiving the applicability of Section 12(5) of the Amendment Act,2015. In response to the respondent’s letter dated 26.09.2018,the appellant has sent a panel of four retired Railway Officersto act as arbitrators giving the details of those retired officersand requesting the respondent to select any two from the listand communicate to the office of the General Manager. Sincethe respondent has been given the power to select two namesfrom out of the four names of the panel, the power of theappellant nominating its arbitrator gets counter-balanced by thepower of choice given to the respondent. Thus, the power of theGeneral Manager to nominate the arbitrator is counter-balanced A

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Aby the power of the respondent to select any of the twonominees from out of the four names suggested from the panelof the retired officers. In view of the modified Clauses 64(3)(a)(ii)and 64(3) (b) of GCC, it cannot therefore be said that the GeneralManager has become ineligible to act as the arbitrator. [Para 37][1257-C-F]B

TRF Limited v. Energo Engineering Projects Limited(2017) 8 SCC 377 : [2017] 7 SCR 409 – heldinapplicable.

TRF Limited, in Perkins Eastman Architects DPC andCanother v. HSCC (India) Limited (2019) SCC OnlineSC 1517 – referred to.

5. There is an express provision in the modified clausesof General Conditions of Contract, as per Clauses 64(3)(a)(ii)and 64(3)(b), the Arbitral Tribunal shall consist of a panel of threeGazetted Railway Officers [Clause 64(3)(a)(ii)] and three retiredDRailway Officers retired not below the rank of SeniorAdministrative Grade Officers [Clause 64(3)(b)]. When theagreement specifically provides for appointment of ArbitralTribunal consisting of three arbitrators from out of the panelserving or retired Railway Officers, the appointment of theEarbitrators should be in terms of the agreement as agreed bythe parties. That being the conditions in the agreement betweenthe parties and the General Conditions of the Contract, the HighCourt was not justified in appointing an independent solearbitrator ignoring Clauses 64(3)(a)(ii) and 64(3)(b) of theGeneral Conditions of Contract. [Para 38] [1257-G-H; 1258-A-FB]

Union of India and Another v. M.P. Gupta (2004) 10SCC 504 ; Union of India and Another v. V.S.Engineering (P) Ltd. (2006) 13 SCC 240 : [2006] 9Suppl. SCR 125 – relied on.

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CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 9486-9487 of 2019.

From the Judgment and Order dated 03.01.2019 & 29.03.2019of the High Court of Court of Judicature at Allahabad in ArbitrationApplication No. 151 of 2018

C

A.N.S. Nadkarni, ASG, Ms. Rashmi Malhotra, Jitin Singhal,S.S. Rebello, Ms. Priyanka Dass, Ms. Arzu Paul, Neeleshwar Pavani,Ms. Shivikka Agarwal, Ms. Riya Soni, Sumit Upadhyay, Raj BahadurYadav, Advs. for the Appellant.

D

Sridhar Potaraju, Ms. Shweta Parihar, Ms. G. Usha Sri, VishnuThulasi Menon, Advs. for the Respondent.

The Judgment of the Court was delivered by

R. BANUMATHI, J.

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1. Leave granted.

2. These appeals have been preferred against the impugnedorders dated 03.01.2019 and 29.03.2019 passed by the High Court ofJudicature at Allahabad in Arbitration Application No.151 of 2018 inand by which the High Court rejected the contention of the appellantthat the arbitrator is to be appointed as per General Conditions 64(3)(a)(ii) and 64 (3)(b) of the Contract and appointed Shri Justice RajeshDayal Khare as the sole arbitrator for resolving the dispute betweenthe parties.

F

3. The appellant awarded work contract of Rs.165,67,98,570/-to the respondent-Company by an agreement dated 20.09.2010 whichcontains the arbitration clause. Subsequently, after coming into forceof Arbitration and Conciliation (Amendment) Act, 2015 (w.e.f.23.10.2015), the Government of India, Ministry of Railways made amodification to Clause 64 of the General Conditions of Contract andissued a notification dated 16.11.2016 for implementation of modification.

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AThe modified Clause 64(3)(a)(ii) (where applicability of Section 12(5)has been waived off) inter alia provided that in cases where the totalvalue of all claims exceeds Rs. 1 crore, the Arbitral Tribunal shall consistof a panel of three gazetted Railway Officers not below JA (JuniorAdministrative) Grade or two Railway Gazetted Officers not below JAGrade and a retired Railway Officer, retired not below the rank of SeniorBAdministrative (SA) Grade officer as arbitrators. The procedure forconstitution of the Arbitral Tribunal is provided thereon. Clause 64(3)(b)deals with the appointment of arbitrator where applicability of Section12(5) of the Arbitration and Conciliation Act has not been waived off.

Clause 64(3)(b) stipulates that the Arbitral Tribunal shall consist of aCpanel of three retired railway officers not below the rank of SeniorAdministrative Officer as the arbitrators as per the procedure indicatedthereon.

4. Since the respondent did not complete the work under thecontract within the prescribed period, on 18.10.2017, the appellant issuedD“Seven days” notice under Clause 62 of the General Conditions ofContract to the respondent. Thereafter on 27.10.2017, the appellantissued a “48 hours’ notice” to the respondent calling upon the respondentto make good the progress of work, failing which the contract will standterminated. Since the respondent did not make adequate progress in Ethe work, on 01.11.2017, the contract was terminated as per Clause62 of the General Conditions of the Contract. The respondent wasalso informed that their security deposit has been forfeited and theperformance guarantee submitted by it shall also be encashed.

5. The respondent filed a Petition No.760 of 2017 before the HighFCourt challenging the termination of the contract which came to bedismissed by the High Court vide order dated 28.11.2017 and the HighCourt directed the respondent to avail the alternative remedy by invokingarbitration clause. The respondent vide its letter dated 27.07.2018requested the appellant for appointment of an Arbitral Tribunal forresolving the disputes between the parties and settle the claims valueGof Rs.73.35 crores. In reply dated 24.09.2018, the appellant sent a listof four serving Railway Electrification Officers of JA Grade to act asarbitrators. The respondent was asked to select any two andcommunicate to the appellant for formation of the arbitration tribunalpanel. Vide letter dated 25.10.2018, the respondent was sent a list ofHanother panel comprising four retired Railway officers. In terms of

Clause 63(3)(b) of Railway’s General Conditions of Contract, therespondent was asked to select any two from this list and communicatethem to the appellant within thirty days for constitution of the arbitrationtribunal.

6. The respondent did not send a reply to the above letters ofthe appellant; but filed Arbitration Petition No. 151 of 2018 before HighCourt under Section 11(6) of the Arbitration and Conciliation Act seekingappointment of a sole arbitrator for resolution of differences. In itspetition, the respondent suggested the name of one Shri Ashwani KumarKapoor, retired member Electrical from Railway Board to be appointedas an arbitrator in the matter. According to the respondent, there existsa valid and binding arbitration clause between the parties being clause1.2.54 of Part I of Chapter 2 and also 64 of the General Conditions ofContract; but since no neutral arbitrator is contemplated to be appointedin the General Conditions of Contract, the respondent has no otherrecourse except by filing the petition under Section 11(6) of theArbitration and Conciliation Act, 1996.

7. The High Court vide the impugned order dated 03.01.2019rejected the argument of the appellant that the arbitrator ought to beappointed only from the panel of arbitrators in terms of GeneralConditions of Contract. The High Court observed that the powers ofthe Court to appoint arbitrator are independent of the contract betweenthe parties and no fetters could be attached to the powers of the court.With those findings, the High Court appointed Shri Rajesh Dayal Khare,a retired judge of the Allahabad High Court as the sole arbitrator subjectto his consent, under Section 11(8) of the Arbitration and ConciliationAct. Subsequently, vide order dated 29.03.2019, the High Court notedthe consent of the arbitrator appointed by the court and directed theArbitrator to proceed with the arbitration proceedings. Being aggrieved,the appellant has preferred these appeals.

8. Mr. A.N.S. Nadkarni, learned Additional Solicitor General(ASG) appearing for the appellant submitted that in terms of Clause64(3)(a)(ii) of the General Conditions of Contract (where applicabilityof Section12(5) of the Amended Act has been waived off), the ArbitralTribunal shall consist of a panel of three Gazetted Railway Officersnot below Junior Administrative Grade or two Railway GazettedOfficers not below Junior Administrative Grade and a retired RailwayOfficer retired not below the rank of Senior Administrative Grade A

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AOfficer as the arbitrators. It was submitted that as per Clause 64(3)(b)of the General Conditions of Contract (where applicability of Section12(5) of the Act has not been waived off), the Arbitral Tribunal shallconsist of a panel of three retired Railway Officers retired not belowthe rank of Senior Administrative Grade Officers as the arbitrators aftercompliance of the procedure stipulated in Clause 64(3)(b). It wasBcontended that when the agreement and the General Conditions ofContract provided for appointment of Arbitral Tribunal consisting of threearbitrators from the Panel, the High Court erred in appointing the solearbitrator outside the panel of the arbitrators. The learned ASG furthersubmitted that the appointment of an independent arbitrator is inCcontravention of Clauses 64(3)(a)(i), 64(3)(a)(ii) and 64(3)(b) of theGeneral Conditions of Contract and the impugned judgment appointinga former Judge of the High Court of Allahabad is not sustainable. Insupport of the contention, the learned ASG inter alia placed relianceupon Union of India v. Parmar Construction Company (2019) SCC

Online SC 442 and Union of India v. Pradeep Vinod ConstructionDCompany (2019) SCC Online SC 1467 and other judgments.

9. Refuting the above contention, Mr. Sridhar Potaraju, learnedcounsel appearing for the respondent submitted that the Arbitration andConciliation Act, 1996 was amended with effect from 23.10.2015 andin the present case, the demand for arbitration for resolution of disputesEwas made by the respondent on 27.07.2018 and hence, the provisionsof the amended Act applies to the present case. It was submitted thatby virtue of the provisions of Section 12(5) read with Schedule VII tothe Arbitration and Conciliation Act, 1996, the panel of arbitratorsproposed by the appellant vide letter dated 24.09.2018 were statutorilymade ineligible to be appointed as arbitrators since they were eitherFserving or retired employees of the appellant. It was contended thatas per the provisions of the Amendment Act, 2015, all employees presentor past are statutorily made ineligibile for appointment as arbitrators.The learned counsel further submitted that when the General Managerhimself being ineligible to be appointed as an arbitrator under SectionG12(5) read with Schedule VII of the Act, the General Manager cannotnominate any of the persons to be arbitrator. The learned counsel forthe respondent inter alia placed reliance upon Voestalpine SchienenGmbh v. Delhi Metro Rail Corporation Limited (2017) 4 SCC 665,TRF Limited v. Energo Engineering Projects Limited (2017) 8 SCC377 and number of other judgments which would be referred to at theHappropriate place.

10. We have carefully considered the submissions and perusedthe impugned judgment and materials on record. The point falling forconsideration is whether the High Court was right in appointing anindependent arbitrator in contravention of the Clauses 64(3)(a)(ii) and64(3)(b) of the General Conditions of Contract.

Appointment of an independent arbitrator withoutreference to the Clauses of General Conditions ofContract (GCC) – Whether correct?

11. Learned counsel for the respondent submitted that beingserving employees of the appellant, the panel of arbitrators proposedby the appellant vide letter dated 24.09.2018 were not eligible to beappointed as arbitrators in view of provisions of Section 12(5) read withSchedule VII of the Arbitration and Conciliation Act. Learned counselfurther submitted that the panel of arbitrators proposed by the appellantvide letter dated 25.10.2018 comprising of retired employees of theappellant were also not eligible to be appointed as arbitrators underSection 12(5) read with Schedule VII of the Act as the employees ofthe appellant are expressly made ineligible.

12. In support of the above contention, learned counsel for therespondent has placed reliance upon Voestalpine Schienen Gmbh v.Delhi Metro Rail Corporation Limited (2017) 4 SCC 665 wherein,the Supreme Court held as under:- “24. …….The amended provision puts an embargo on a personto act as an arbitrator, who is the employee of the party to thedispute. It also deprives a person to act as an arbitrator if hehad been the consultant or the advisor or had any past or presentbusiness relationship with DMRC…….”.

13. On behalf of the respondent, reliance was also placed uponBharat Broadband Network Limited v. United Telecoms Limited(2019) 5 SCC 755 wherein, the Supreme Court held as under:- “15. Section 12(5), on the other hand, is a new provision whichrelates to the de jure inability of an arbitrator to act as such.Under this provision, any prior agreement to the contrary is wipedout by the non obstante clause in Section 12(5) the moment anyperson whose relationship with the parties or the counsel or thesubject-matter of the dispute falls under the Seventh Schedule.The sub-section then declares that such person shall be A

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1244SUPREME COURT REPORTS

A“ineligible” to be appointed as arbitrator. The only way in whichthis ineligibility can be removed is by the proviso, which again isa special provision which states that parties may, subsequent todisputes having arisen between them, waive the applicability ofSection 12(5) by an express agreement in writing. What is clear,therefore, is that where, under any agreement between theBparties, a person falls within any of the categories set out in theSeventh Schedule, he is, as a matter of law, ineligible to beappointed as an arbitrator. The only way in which this ineligibilitycan be removed, again, in law, is that parties may after disputeshave arisen between them, waive the applicability of this sub-Csection by an “express agreement in writing”. Obviously, the“express agreement in writing” has reference to a person whois interdicted by the Seventh Schedule, but who is stated byparties (after the disputes have arisen between them) to be aperson in whom they have faith notwithstanding the fact that suchperson is interdicted by the Seventh Schedule.”D

14. Per contra, on behalf of the appellant, Mr. A.N.S. Nadkarni,learned ASG has submitted that the appointment of arbitrator isgoverned as per Clauses 64(3)(a)(i) and 64(3)(a)(ii) of the GeneralConditions of Contract (GCC) where applicability of Section 12(5) ofEthe Arbitration and Conciliation Act has been waived off and the ArbitralTribunal shall consist of a panel of three serving Railway Officers ortwo serving officers and one retired officer. Learned ASG submittedthat Clause 64(3)(b) of GCC deals with appointment of arbitrator whereapplicability of Section 12(5) of the Act has not been waived off. Itwas further submitted that Clause 64(3)(b) of GCC stipulates that theFArbitral Tribunal shall consist of a panel of three retired railway officersnot below the rank of Senior Administrative Officer and the ArbitralTribunal to be constituted as per the procedure indicated thereon.Placing reliance upon Union of India v. Parmar ConstructionCompany (2019) SCC Online SC 442 and Union of India v.GPradeep Vinod Construction Company (2019) SCC Online SC1467, learned ASG has submitted that when the agreement specificallyprovides for appointment of panel of arbitrators, the appointment shouldbe in terms of the agreement and the appointment of independent solearbitrator is in contravention of the General Conditions of Contract whichHgovern the parties for appointment of arbitrators.

15. Clause 64 of the General Conditions of Contract deals withthe procedure for resolution of the disputes and provides for “Demandfor arbitration” and appointment of the arbitrators. Clause 64 of theGeneral Conditions of Contract (GCC) reads as under:- “64. (1): Demand for Arbitration:

64. (1) (i) In the event of any dispute or difference betweenthe parties hereto as to the construction or operation of thiscontract, or the respective rights and liabilities of the parties onany matter in question, dispute or difference on any account oras to the withholding by the Railway of any certificate to whichthe contractor may claim to be entitled to, or if the Railway failsto make a decision within 120 days, then and in any such case,but except in any of the “excepted matters” referred to in Clause63 of these Conditions, the contractor, after 120 days but within180 days of his presenting his final claim on disputed matters shalldemand in writing that the dispute or difference be referred toarbitration.

64. (1) (ii) (a) The demand for arbitration shall specify thematters which are in question, or subject of the dispute ordifference as also the amount of claim item-wise. Only suchdispute or difference, in respect of which the demand has beenmade, together with counter claims or set off, given by theRailway, shall be referred to arbitration and other matters shallnot be included in the reference.

64. (1) (ii) (b) The parties may waive of the applicability of sub-section 12(5) of Arbitration and Conciliation (Amendment) Act,2015. If they agree or such waiver in writing after having arisenbetween them in the formation under Annexure XII of theseconditions.”

16. After coming into force of Arbitration and Conciliation(Amendment) Act, 2015, the Government of India, Ministry of Railwaysmade a modification to Clause 64 of the General Conditions of Contractand the Railway Board issued a notification dated 16.11.2016 in thisregard. The modified Clause 64(3)(a)(i) (where applicability of Section12(5) of the Act has been waived off) inter alia provided that in casewhere the total value of all claims in question added together does notexceed rupees one crore, the arbitral tribunal shall consist of a sole A

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Aarbitrator who shall be a Gazetted Officer of Railways not below JAGrade nominated by the General Manager. In terms of Clause64(3)(a)(i), the sole arbitrator shall be appointed within sixty days fromthe day when a written and valid demand for arbitration is received bythe General Manager. In the present case, since the value of the workcontract is worth more than Rs.165 crores, Clause 64(3)(a)(i) is notBapplicable.

17. Clause 64(3)(a)(ii) of GCC deals with cases not covered byClause 64(3)(a)(i) where applicability of Section 12(5) of the Act hasbeen waived off. Clause 64(3)(a)(ii) of General Conditions of Contractreads as under:-C

“64. (3) Appointment of Arbitrator:

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64. (3) (a) (ii) In case not covered by the Clause 64(3)(a)(i),the Arbitral Tribunal shall consist of a Panel of three GazetteDRailway Officers not below JA Grade or two Railway GazetteOfficers not below JA Grade and a retired Railway Officer,retired not below the rank of SAG officer, as the arbitrators. Forthis purpose, the railway will send a panel of at least four (4)names of Gazette Railway Officers of one or more departmentsEof the Railway which may also include the name(s) of retiredRailway Officer(s) empanelled to work as railway Arbitrator tothe contractor within 60 days from the day when a written andvalid demand for arbitration is received by the GM………”.

18. Clause 64(3)(b) of GCC deals with appointment of arbitratorFwhere applicability of Section 12(5) of the Act has not been waivedoff. The modified Clause 64(3)(b) inter alia provided that the arbitraltribunal shall consist of a panel of three retired railway officers notbelow the rank of SAO officer as arbitrator. For this purpose, theRailway will send a panel of at least four names of retired railwayofficer(s) empanelled. The contractor will be asked to suggest to theGGeneral Manager at least two names out of the panel for appointmentas the contractor’s nominee and the General Manager shall appoint atleast one out of them as the contractor’s nominee. The GeneralManager will also simultaneously appoint the balance number ofarbitrators from the panel or from outside the panel. The modifiedHClause 64(3)(b) of the General Conditions of Contract reads as under:-

“64. (3)(b) Appointment of Arbitrator where applicabilityof Section 12(5) of A&C Act has not been waived off.

The Arbitrator Tribunal shall consist of a Panel of three retiredRailway Officer retired not below the rank of SAO officer, asthe arbitrator. For this purpose, the Railway will send a panel ofat least four names of retired Railway Officer(s) empanelled towork as Railway. Arbitrator indicating their retirement date tothe contractor within 60 days from the day when a written andvalid demand for arbitrators is received by the GM.

Contractor will be asked to suggest to General Manager at leasttwo names out of the panel for appointment as contractor’snominee within 30 days from the date of dispatch of the requestby Railway. The General Manager shall appoint at least one outof them as the contractor’s nominee and will, also simultaneouslyappoint the balance number of arbitrators other from the panelor from outside the panel, duly indicating the ‘presiding arbitrator’from amongst the three arbitrators so appointed CM shallcomplete tis exercise of appointing the Arbitral Tribunal within30 days from the receipt of the names of contract’s nominees.While nominating the arbitrators, it will be necessary to ensurethat one of them has served in the Accounts Department.”

19. After coming into force of the Arbitration and Conciliation(Amendment) Act, 2015, when Clause 64 of the General Conditions ofContract has been modified inter alia providing for constitution ofArbitral Tribunal consisting of three arbitrators either serving or retiredrailway officers, the High Court is not justified in appointing anindependent sole arbitrator without resorting to the procedure forappointment of the arbitrator as prescribed under Clause 64(3)(b) ofthe General Conditions of Contract.

20. It is pertinent to note that even in the application filed underSection 11(6) of the Arbitration and Conciliation Act, 1996, therespondent prayed for appointment of a sole arbitrator in terms of Clause1.2.54(b)(i) of the Tender Agreement/Clause 64 of the GeneralConditions of Contract for adjudicating the disputes which have arisenbetween the parties. In the petition filed under Section 11(6) of the Act,the respondent prayed for appointment of one Shri Ashwani KumarKapoor to act as the arbitrator. Thus, the respondent itself sought forappointment of arbitrator in terms of Clause 64 of the General A

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AConditions of Contract. The appointment of Shri Ashwani KumarKapoor as arbitrator, of course, was not agreeable to the appellant, sinceit was found that said Shri Ashwani Kumar Kapoor was not in the panelof arbitrators and therefore, could not be considered for appointmentas arbitrator. As the value of the work contract was worth more thanRs.165 crores, the dispute can be resolved only by a panel of threeBarbitrators in terms of Clause 64(3)(b) of the General Conditions ofContract. The respondent was not right in seeking for appointment ofa sole arbitrator in terms of Clause 1.2.54(b)(i) of the TenderAgreement/Clause 64 of the General Conditions of Contract.

21. Considering the various matters of railway contracts andCinterference with the appointment of independent arbitrators, afterreferring to Union of India and Another v. M.P. Gupta (2004) 10SCC 504 and Union of India and Another v. V.S. Engineering (P)Ltd. (2006) 13 SCC 240 and other judgments, in Union of India v.

Parmar Construction Company (2019) SCC Online SC 442, theDSupreme Court set aside the appointment of an independent arbitratorand directed the General Manager of Railways to appoint arbitrator interms of Clause 64(3) of the agreement. In Para (44) of ParmarConstruction Company, the Supreme Court held as under:-

“44. To conclude, in our considered view, the High Court wasEnot justified in appointing an independent arbitrator withoutresorting to the procedure for appointment of an arbitrator whichhas been prescribed under clause 64(3) of the contract underthe inbuilt mechanism as agreed by the parties.”

22. Applying ratio of the Parmar Construction Company, inFPradeep Vinod Construction Company (2019) SCC Online SC1467, the Supreme Court held that the appointment of arbitrator shouldbe in terms of the agreement and the High Court was not right inappointing an independent arbitrator ignoring Clause 64 of the GeneralConditions of Contract. As held in Parmar Construction CompanyGand Pradeep Vinod Construction Company, the High Court was notjustified in appointing an independent arbitrator without resorting to theprocedure for appointment of the arbitrators which has been prescribedunder the General Conditions of Contract.

RE: Contention:- Retired Railway Officers are not eligibleHto be appointed as arbitrators under Section 12(5) read

with Schedule VII of the Act and were statutorily madeineligible to be appointed as an arbitrator.

23. Vide letter dated 27.07.2018, the respondent made a requestfor appointment of arbitrator/constitution of Arbitral Tribunal. Inresponse to the same, the appellant sent a letter dated 24.09.2018nominating the names of four serving railway officers and the respondentwas asked to select any two names from the list of the four railwayofficers and communicate to the appellant. It is seen from the recordthat the respondent vide their letter dated 26.09.2018 expressed theirdisagreement in waiving off the applicability of Section 12(5) of theAmendment Act, 2015. Referring to its own earlier letter dated24.09.2018 and letter of the respondent dated 26.09.2018, the appellanthad sent a communication dated 25.10.2018 nominating the panel offour retired railway officers to act as arbitrators and requesting therespondent to select any two names from the list in terms of Clause64(3)(b) of GCC and communicate to the appellant within thirty daysfrom the date of the letter for formation of Arbitration Tribunal.According to the appellant, the respondent failed to select any of thenominee from the panel within the stipulated time of thirty days. Therespondent neither responded to the appellant’s letter dated 25.10.2018not suggested the names of two arbitrators from the panel sent by theappellant. Instead the respondent approached the High Court underSection 11(6) of the Act for appointment of an independent sole arbitratorby filing a petition on 17.12.2018.

24. The contention of the learned counsel for the respondent isthat the panel of arbitrators proposed by the appellant vide letter dated25.10.2018 comprising of retired employees of the appellant are noteligible to be appointed as arbitrators under Section 12(5) read withSchedule VII of the Act. Further contention of the learned counsel forthe respondent is that the panel of arbitrators drawn by the appellantconsist of those persons who were railway employees or Ex-railwayemployees and therefore, they are statutorily made ineligible to beappointed as arbitrators.

25. Contending that the appointment of retired employees asarbitrators cannot be assailed merely because an arbitrator is a retiredemployee of one of the parties, learned ASG has placed reliance uponVoestalpine Schienen Gmbh v. Delhi Metro Rail CorporationLimited (2017) 4 SCC 665. After referring to various judgments and A

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Aalso the scope of amended provision of Section 12 of the AmendmentAct, 2015 and the entries in the Seventh Schedule , the Supreme Courtobserved that merely because the panel of arbitrators drawn by therespondent-Delhi Metro Rail Corporation are the Governmentemployees or Ex-Government employees, that by itself may not makesuch persons ineligible to act as arbitrators of the respondent-DMRC.BIt was observed that the persons who have worked in the Railwaysunder the Central Government or the Central Public Works Departmentor Public Sector Undertakings cannot be treated as employee orconsultant or advisor of the respondent-DMRC. In para (26) ofVoestalpine Schienen Gmbh, the Supreme Court held as under:-C“26. It cannot be said that simply because the person is a retiredofficer who retired from the government or other statutorycorporation or public sector undertaking and had no connectionwith DMRC (the party in dispute), he would be treated asineligible to act as an arbitrator. Had this been the intention ofDthe legislature, the Seventh Schedule would have covered suchpersons as well. Bias or even real likelihood of bias cannot beattributed to such highly qualified and experienced persons, simplyon the ground that they served the Central Government or PSUs,even when they had no connection with DMRC. The very reasonfor empanelling these persons is to ensure that technical aspectsEof the dispute are suitably resolved by utilising their expertisewhen they act as arbitrators.It may also be mentioned hereinthat the Law Commission had proposed the incorporation of theSchedule which was drawn from the red and orange list of IBAguidelines on conflict of interest in international arbitration withFthe observation that the same would be treated as the guide “todetermine whether circumstances exist which give rise to suchjustifiable doubts”. Such persons do not get covered by red ororange list of IBA guidelines either.” [Underlining added]

26. The same view was reiterated in Government of HaryanaGPWD Haryana (B and R) Branch v. G.F. Toll Road Private Limitedand Others (2019) 3 SCC 505 wherein, the Supreme Court held thatthe appointment of a retired employee of a party to the agreementcannot be assailed on the ground that he is a retired/former employeeof one of the parties to the agreement. Absolutely, there is no bar underSection 12(5) of the Arbitration and Conciliation (Amendment) Act, 2015Hfor appointment of a retired employee to act as an arbitrator.

27. By the letter dated 25.10.2018, the appellant has forwardeda list of four retired railway officers on its panel thereby giving a widechoice to the respondent to suggest any two names to be nominatedas arbitrators out of which, one will be nominated as the arbitratorrepresenting the respondent-Contractor. As held in VoestalpineSchienen Gmbh (2017) 4 SCC 665, the very reason for empanellingthe retired railway officers is to ensure that the technical aspects ofthe dispute are suitably resolved by utilising their expertise when theyact as arbitrators. Merely because the panel of the arbitrators are theretired employees who have worked in the Railways, it does not makethem ineligible to act as the arbitrators.

RE: Contention:- Failure to act in terms of the Contractin not responding within thirty days from the date of therequest.

28. Learned counsel for the respondent has submitted that videletter dated 27.07.2018, the respondent requested for referring thedispute to arbitration but, no steps were taken by the appellant withinthirty days from the date of request dated 27.07.2018. It was submittedthat on 17.12.2018, respondent filed application under Section 11(6) ofthe Act before the High Court for appointment of a sole arbitrator, bywhich time, no steps were taken by the appellant under the Contract,except sending two lists of persons by letters dated 24.09.2018 and25.10.2018 who were de jure ineligible to be appointed as thearbitrators. In this regard, reliance was placed upon Punj Lloyd Ltd.v. Petronet MHB Ltd. (2006) 2 SCC 638. Considering the applicabilityof Section 11(6) of the Act, in Punj Lloyd Ltd., the Supreme Courtheld as under:- “5. Having heard the learned counsel for the parties, we aresatisfied that the appeal deserves to be allowed. The learnedcounsel for the appellant has placed reliance on the law laid downby this Court in the case of Datar Switchgears Ltd. v. TataFinance Ltd. (2000) 8 SCC 151, wherein this Court has held asunder:

“[S]o far as Section 11(6) is concerned, if one party demandsthe opposite party to appoint an arbitrator and the opposite partydoes not make an appointment within 30 days of the demand,the right to appointment does not get automatically forfeited afterexpiry of 30 days. If the opposite party makes an appointment A

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Aeven after 30 days of the demand, but before the first partyhas moved the court under Section 11, that would be sufficient.In other words, in cases arising under Section 11(6), if the oppositeparty has not made an appointment within 30 days of demand,the right to make appointment is not forfeited but continues, butan appointment has to be made before the former files applicationBunder Section 11 seeking appointment of an arbitrator. Only thenthe right of the opposite party ceases.”

As held in Punj Lloyd Ltd., if the opposite party has not madeany application for appointment of the arbitrator within thirty days ofdemand, the right to make appointment is not forfeited but continues;Cbut the appointment has to be made before the former files applicationunder Section 11 of the Act seeking appointment of an arbitrator. Onlythen the right of the opposite party ceases.

29. In Union of India v. Bharat Battery Manufacturing Co.(P) Ltd. (2007) 7 SCC 684, on 30.03.2006, the respondentDthereon filed petition under Section 11(6) seeking appointment ofan arbitrator. Union of India-the appellant thereon appointed Dr.Gita Rawat on 15.05.2006 as a sole arbitrator in terms of Clause24 of the agreement. In such facts and circumstances of the case,considering the decision in Punj Lloyd Ltd., the Supreme CourtEheld that “once a party files an application under Section11(6) of the Act, the other party extinguishes its right toappoint an arbitrator in terms of the clause of the agreementthereafter. The right to appoint arbitrator under the clauseof agreement ceases after Section 11(6) petition has beenfiled by the other party before the Court seeking appointmentFof an arbitrator…..”.

30. As discussed earlier, as per the modified Clause 64(3)(b) ofGCC, when a written and valid demand for arbitration is received bythe General Manager, the Railway will send a panel of at least fournames of retired railway officers empanelled to work as arbitrators.GThe contractor will be asked to suggest to the General Manager at leasttwo names out of the panel for appointment as contractor’s nomineewithin thirty days from the date of dispatch of the request by theRailway. Vide letter dated 27.07.2018, the respondent has sought forappointment of an arbitrator for resolving the disputes. The appellantHby its letter dated 24.09.2018 (which is well within the period of sixty

days) in terms of Clause 64(3)(a)(ii) (where applicability of Section 12(5)of the Act has been waived off) sent a panel of four serving railwayofficers of JA Grade to act as arbitrators and requested the respondentto select any two from the list and communicate to the office at theearliest for formation of Arbitration Tribunal. By the letter dated26.09.2018, the respondent conveyed their disagreement in waiving theapplicability of Section 12(5) of the Amendment Act, 2015. By the letterdated 25.10.2018, in terms of Clause 64(3)(b) of GCC (whereapplicability of Section 12(5) has not been waived off) the appellanthas nominated a panel of four retired railway officers to act asarbitrators and requested the respondent to select any two from thelist and communicate to the appellant within thirty days from the dateof the letter for formation of Arbitration Tribunal. The respondent hasneither sent its reply nor selected two names from the list and repliedto the appellant. Without responding to the appellant, the respondenthas filed petition under Section 11(6) of the Arbitration and ConciliationAct before the High Court on 17.12.2018. When the respondent hasnot sent any reply to the communication dated 25.10.2018, therespondent is not justified in contending that the appointment of ArbitralTribunal has not been made before filing of the application under Section11 of the Act and that the right of the appellant to constitute ArbitralTribunal is extinguished on filing of the application under Section 11(6)of the Act.

RE: Contention:- General Manager himself becomingineligible by operation of law to be appointed as arbitrator,is not eligible to nominate the arbitrator.

31. Stand of the learned counsel for the respondent is that byvirtue of Section 12(5) read with Schedule VII of the Act, GeneralManager himself is made ineligible to be appointed as an arbitrator andhence, he cannot nominate any other person to be an arbitrator. Theessence of the submission is “that which cannot be done directly, maynot be done indirectly”. In support of his contention, the learned counselfor the respondent placed reliance upon TRF Limited v. EnergoEngineering Projects Limited (2017) 8 SCC 377 wherein theSupreme Court held as under:- “54. In such a context, the fulcrum of the controversy wouldbe, can an ineligible arbitrator, like the Managing Director,nominate an arbitrator, who may be otherwise eligible and a A

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Arespectable person. As stated earlier, we are neither concernedwith the objectivity nor the individual respectability. We are onlyconcerned with the authority or the power of the ManagingDirector. By our analysis, we are obligated to arrive at theconclusion that once the arbitrator has become ineligible byoperation of law, he cannot nominate another as an arbitrator.BThe arbitrator becomes ineligible as per prescription containedin Section 12(5) of the Act. It is inconceivable in law that personwho is statutorily ineligible can nominate a person. Needless tosay, once the infrastructure collapses, the superstructure is boundto collapse. One cannot have a building without the plinth. Or toCput it differently, once the identity of the Managing Director asthe sole arbitrator is lost, the power to nominate someone elseas an arbitrator is obliterated. Therefore, the view expressed bythe High Court is not sustainable and we say so.”

32. In TRF Limited, though the court observed that once theDarbitrator has become ineligible by operation of law, he cannot nominateanother as an arbitrator, in para (50), the Court has discussed aboutanother situation where both the parties could nominate respectivearbitrators of their choice and that it would get counter-balanced byequal power with the other party. In para (50) of TRF Limited, theSupreme court held as under:-E

“50. …..We are singularly concerned with the issue, whether theManaging Director, after becoming ineligible by operation of law,is he still eligible to nominate an arbitrator. At the cost ofrepetition, we may state that when there are two parties, onemay nominate an arbitrator and the other may appoint another.FThat is altogether a different situation. If there is a clauserequiring the parties to nominate their respective arbitrator, theirauthority to nominate cannot be questioned. What really in thatcircumstance can be called in question is the proceduralcompliance and the eligibility of their arbitrator depending uponGthe norms provided under the Act and the Schedules appendedthereto….” [Underlining added]

33. Considering the decision in TRF Limited, in Perkins EastmanArchitects DPC and another v. HSCC (India) Limited (2019) SCCOnline SC 1517, the Supreme Court observed that there are twoHcategories of cases. The first, similar to the one dealt with in TRF

Limited where the Managing Director himself is named as an arbitratorwith an additional power to appoint any other person as an arbitrator.In the second category, the Managing Director is not to act as anarbitrator himself; but is authorized to appoint any other person of hischoice or discretion as an arbitrator. Observing that if in the first category,the Managing Director was found incompetent similar invalidity willalways arise even in the second category of cases, in para (20) inPerkins Eastman, the Supreme Court held as under:- “20. ….If, in the first category of cases, the Managing Directorwas found incompetent, it was because of the interest that hewould be said to be having in the outcome or result of the dispute.The element of invalidity would thus be directly relatable to andarise from the interest that he would be having in such outcomeor decision. If that be the test, similar invalidity would alwaysarise and spring even in the second category of cases. If theinterest that he has in the outcome of the dispute, is taken to bethe basis for the possibility of bias, it will always be presentirrespective of whether the matter stands under the first orsecond category of cases. We are conscious that if suchdeduction is drawn from the decision of this Court in TRF Limited,all cases having clauses similar to that with which we arepresently concerned, a party to the agreement would bedisentitled to make any appointment of an Arbitrator on its ownand it would always be available to argue that a party or anofficial or an authority having interest in the dispute would bedisentitled to make appointment of an Arbitrator.”

34. After referring to para (50) of the decision in TRF Limited,in Perkins Eastman, the Supreme Court referred to a different situationwhere both parties have the advantage of nominating an arbitrator oftheir choice and observed that the advantage of one party in appointingan arbitrator would get counter-balanced by equal power with the otherparty. In para (21), it was held as under:- “21. ….The next sentences in the paragraph, further show thatcases where both the parties could nominate respective arbitratorsof their choice were found to be completely a different situation.The reason is clear that whatever advantage a party may deriveby nominating an arbitrator of its choice would get counterbalanced by equal power with the other party…..”

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A35. As discussed earlier, after Arbitration and Conciliation(Amendment) Act, 2015, the Railway Board vide notification dated16.11.2016 has amended and notified Clause 64 of the GeneralConditions of Contract. As per Clause 64(3)(a)(ii) [where applicabilityof Section 12(5) of the Act has been waived off], in a case not coveredby Clause 64(3)(a)(i), the Arbitral Tribunal shall consist of a panel ofBthree Gazetted Railway Officers not below the rank of JuniorAdministrative Grade or two Railway Gazetted Officers not below therank of Junior Administrative Grade and a retired Railway Officerretired not below the rank of Senior Administrative Grade Officer, asthe arbitrators. For this purpose, the General Manager, Railway willCsend a panel of at least four names of Gazetted Railway Officers ofone or more departments of the Railway within sixty days from thedate when a written and valid demand for arbitration is received bythe General Manager. The contractor will be asked to suggest toGeneral Manager at least two names out of the panel for appointment as contractor’s nominees within thirty days from the date of dispatchDof the request from the Railway. The General Manager shall appointat least one out of them as the contractor’s nominee and will alsosimultaneously appoint balance number of arbitrators from the panelor from outside the panel duly indicating the “Presiding Officer” fromamongst the three arbitrators so appointed. The General Manager shallEcomplete the exercise of appointing the Arbitral Tribunal within thirtydays from the date of the receipt of the names of contractor’s nominees.

36. Clause 64(3)(b) of GCC deals with appointment of arbitratorwhere applicability of Section 12(5) of the Act has not been waivedoff. In terms of Clause 64(3)(b) of GCC, the Arbitral Tribunal shallFconsist of a panel of three retired Railway Officers retired not belowthe rank of Senior Administrative Grade Officers as the arbitrators. Forthis purpose, the Railway will send a panel of at least four names ofretired Railway Officers empanelled to work as arbitrators indicatingtheir retirement date to the contractor within sixty days from the date when a written and valid demand for arbitration is received by theGGeneral Manager. The contractor will be asked to suggest the GeneralManger at least two names out of the panel for appointment ofcontractor’s nominees within thirty days from the date of dispatch ofthe request of the Railway. The General Manager shall appoint at leastone out of them as the contractor’s nominee and will simultaneouslyHappoint the remaining arbitrators from the panel or from outside the panel, duly indicating the “Presiding Officer” from amongst the threearbitrators. The exercise of appointing Arbitral Tribunal shall becompleted within thirty days from the receipt of names of contractor’snominees. Thus, the right of the General Manager in formation ofArbitral Tribunal is counter-balanced by respondent’s power to chooseany two from out of the four names and the General Manager shallappoint at least one out of them as the contractor’s nominee.

37. In the present matter, after the respondent had sent the letterdated 27.07.2018 calling upon the appellant to constitute Arbitral Tribunal,the appellant sent the communication dated 24.09.2018 nominating thepanel of serving officers of Junior Administrative Grade to act asarbitrators and asked the respondent to select any two from the listand communicate to the office of the General Manager. By the letterdated 26.09.2018, the respondent conveyed their disagreement inwaiving the applicability of Section 12(5) of the Amendment Act, 2015.In response to the respondent’s letter dated 26.09.2018, the appellanthas sent a panel of four retired Railway Officers to act as arbitratorsgiving the details of those retired officers and requesting the respondentto select any two from the list and communicate to the office of theGeneral Manager. Since the respondent has been given the power toselect two names from out of the four names of the panel, the powerof the appellant nominating its arbitrator gets counter-balanced by thepower of choice given to the respondent. Thus, the power of the GeneralManager to nominate the arbitrator is counter-balanced by the powerof the respondent to select any of the two nominees from out of thefour names suggested from the panel of the retired officers. In viewof the modified Clauses 64(3)(a)(ii) and 64(3)(b) of GCC, it cannottherefore be said that the General Manager has become ineligible toact as the arbitrator. We do not find any merit in the contrary contentionof the respondent. The decision in TRF Limited is not applicable to thepresent case.

38. There is an express provision in the modified clauses ofGeneral Conditions of Contract, as per Clauses 64(3)(a)(ii) and 64(3)(b),the Arbitral Tribunal shall consist of a panel of three Gazetted RailwayOfficers [Clause 64(3)(a)(ii)] and three retired Railway Officers retirednot below the rank of Senior Administrative Grade Officers [Clause64(3)(b)]. When the agreement specifically provides for appointmentof Arbitral Tribunal consisting of three arbitrators from out of the panelserving or retired Railway Officers, the appointment of the arbitrators AB

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Ashould be in terms of the agreement as agreed by the parties. Thatbeing the conditions in the agreement between the parties and theGeneral Conditions of the Contract, the High Court was not justified inappointing an independent sole arbitrator ignoring Clauses 64(3)(a)(ii)and 64(3)(b) of the General Conditions of Contract and the impugnedorders cannot be sustained.

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39. In the result, the impugned orders dated 03.01.2019 and29.03.2019 passed by the High Court of Judicature at Allahabad inArbitration Application No.151 of 2018 are set aside and these appealsare allowed. The appellant is directed to send a fresh panel of fourretired officers in terms of Clause 64(3)(b) of the General ConditionsCof Contract within a period of thirty days from today under intimationto the respondent-contractor. The respondent-contractor shall selecttwo from the four suggested names and communicate to the appellantwithin thirty days from the date of receipt of the names of the nominees.Upon receipt of the communication from the respondent, the appellantDshall constitute the Arbitral Tribunal in terms of Clause 64(3)(b) of theGeneral Conditions of Contract within thirty days from the date of thereceipt of the communication from the respondent. Parties to bear theirrespective costs.

EKalpana K. Tripathy

Appeals allowed.

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