The facts leading to the institution of this revision petition are: that a contract for construction of residential and non-residential buildings at Bhumb Grid Station was assigned to the respondents.
The contract agreement contains an arbitration clause empowering the Superintending Engineer Primary Grid Circle, Lahore, to appoint arbitrator, to decide the disputes arising between the parties touching the contract. Some disputes having arisen, in pursuance of arbitration clause, Mr. Ziaul Haq, the then Executive Engineer, Tubewell Electrification Division, Multan, on 17-10-1975, was appointed as the sole arbitrator who also embarked upon the reference. Since even after expiry of considerable period he did not make the award, the respondent applied to the civil Court under sections 5, 11 and 20 of the Arbitration Act for revocation of the authority of the arbitrator and in his place to appoint any other person as arbitrator.
2. The application was resisted by the petitioners but the learned Civil Judge accepted the respondent's contention that the arbitrator failed to procure the reply to their claim from the WAPDA within a reasonable time and also did not make the award within four months. He, therefore, by his order dated 3-1-1980, removed the arbitrator and directed the parties to suggest the names of six persons, to fill in the vacancy out of that panel.
This order has been called into question by the WAPDA, through invocation of revisional jurisdiction of this Court.
3. I have heard the learned counsel for the parties and examined the record.
The main contention of the petitioner's learned counsel was that the respondents themselves avoided to appear before the arbitrator, prolonged the proceedings by dilatory tactics and thus they could not be permitted to turn round and plead that the arbitrator failed to use reasonable despatch in proceeding with the reference or was guilty of misconduct in not making the award within the statutory period of four months.
4. The record of the proceedings before the arbitrator is available on the trial Court's file. It shows that the arbitrator embarked upon the reference on 28-11-1975, informed the parties of his appointment and fixed 28-11-1975, as the first date of hearing. On this date, the petitioner's counsel appeared before the arbitrator but the case was adjourned to 29-11-1975 as the Executive Engineer D. W. G. Division Sargodha who had to represent WAPDA was absent. It may be observed that the respondent filed his claim with the arbitrator before 24-11-1975. On 29-11-1975, when the case was taken up for hearing both the parties were present but except some preliminary discussion. The proceedings did not make any headway and case was adjourned to 10-12-1975. Later on, because of his inability to hold the proceedings at Lahore, this date of hearing was changed by the arbitrator. In the meanwhile the respondent's counsel informed the arbitrator that he was not in a position to appear before him at Sargodha. The latter how--ever, fixed the case for 22-1-1976, to be heard at Sargodha. The respondent's counsel again intimated to the arbitrator his inability to appear before him at Sargodha or Multan. The case was thus adjourned to 11-2-1976 to be heard at Lahore. This long adjournment was seemingly, given to accommodate the respondent's learned counsel. When the matter came up for hearing before the arbitrator on this date, both the parties were represented but the proceedings were confined only to preliminary hearing. It appears that uptil then the WAPDA did not file its reply to the respondent's claim and it was received in the office of the arbitrator on 15-7-1976. It is discernible from the noting on the file made by the arbitrator on 10-7-1976, that he was pre-occupied with his official assignments, due to flood emergency and fixed the case for 4-8-1976. Both the parties appeared before the arbitrator on that date, but as the time for making the award had already expired he did not conduct any proceedings. Thereafter, the parties, however, conveyed their "no objection" to the arbitrator to the extension of time up to 30-9-1976, and he fixed the case for 25-8-1975; as per his noting, again he could not hold any proceedings due to the flood emergency ; 4-1-1977 was thus the next date of hearing, but the respondent's counsel did not enter appearance on this date and the case was adjourned to 23-1- 1977, on which date the arbitrator did not have any sitting on account of his official engagements at Multan. However, when the case was taken up on 24-1-1977, the respondent's counsel declined to enter appearance, and in the meanwhile they moved the Court in the matter. The next noting appeared on the file on 26-6-1977, when the arbitrator was informed of the stay of the proceedings before him ordered by the Civil Court.
5. From the resume of the facts given above it is clear that the respondents submitted their claim to the arbitrator on or before 24-11-1975, to which the written statement was filed by the WAPDA on 15-7-1976. This eight months delay and the arbitrator's failure to initiate any action against WAPDA during this period, depicts the indifference with which he conducted the arbitrator proceedings.
Fur--thermore, no plausible explanation is forthcoming from the file for not holding any proceedings, by the arbitrator for a period of five months from 11-2-1976 to 10-7-1976. The parties had conveyed their consent to the arbitrator by 14-8-1976, for extension of time but this time limit was allowed to expire without hearing the case. Any proceedings after this date were meaningless.
It may be added that there is nothing in the arbitration clause that the time for making the award can be extended with the consent of the parties. Under section 28 of the Arbitr--ation Act, the power to enlarge time for making the award vested in the Court but no such reference was made to it for extension of time.
6. Misconduct means not only moral turpitude but also neglect o breach of duty on the part of an arbitrator. The proceedings recorded by the arbitrator amply smack of his lack of reasonable despatch in proceeding with the reference and making the awarn. Contravention of the provisions of the para. 3 of the 1st Schedule of the Arbitration Act, by the arbitrator is quite apparent on the face of the record. Equally serious is the irregularity in not obtaining the enlargement of time from the Court concerned in contemplation of section 28 of the Act. All this on the part of the arbitrator clearly amounts to misconduct, calling for his removal under section 11(2). ' The impugned order thus does not suffer from any illegality on this account.
7. The learned trial Court's direction calling upon the parties to submit the names of six persons. For appointment of an arbitrator out of them, was also assailed by the petitioner's learned counsel. In this respect his argument was that after removal of the arbitrator no power vested in the Court to appoint the arbitrator and it was bound to refer the matter to the authority named in clause 25-A of the agreement to fill in the vacancy. For his this submission he heavily relied on the unreported judgment dated 23-2-1980 of this Court in Civil Revision No. 717/73.
8. The stand taken by the learned- counsel is untenable. When the authority of an arbitrator has been revoked with the leave of the Court or he is otherwise removed, the Court has to proceed under sec--tion 12 of the Act and it may either supersede the arbitration agreement or appoint a sole arbitrator in place of the person displaced. There is no fetter on the powers of the Court to abide by the provisions of arbi--tration agreement and leave the appointment of an arbitrator to the authority named therein. Subsection (3) of section 12 further lays down that an arbitrator B appointed under subsection (2) has the same power as the arbitrator appointed under the arbitration agreement. This would also negative the contention of the petitioner's learned counsel.
It may be added that unless there is intention to the contrary the power conferred on a third person. To appoint an arbitrator cannot be exercised again and again. Once Mr. Ziaul Haq was appointed as the arbitrator under clause 25-A of the agreement, the power vesting in the departmental authority to appoint an arbitrator was exhausted. This view finds support from the judgment of Lord Ellen, C. J. In Oliver v. Collings (11 East 365).
The procedure adopted by the learned trial Court, after removal of the arbitrator, for filling in the vacancy, is not in conflict with any provision of law. I have gone through the unreported judgment of the learned Single Judge of this Court, cited by the petitioner's learned counsel. That was a case under section 8 of the Arbitration Act and interpretation of section 12, did not fall for consideration before the Court.
9. For all these reasons I do not find any merit in this petition which is hereby dismissed with costs.