JUDGMENT
V.K. Jhanji, J.
1. This order of mine will dispose of Civil Revisions No. 1260 as well as 1415 of 1992.
2. Petitioner, who is a contractor, submitted his tender in response to a tender notice, for the construction of M.I.G. house at Mohali. His tender was accepted-and the contract was awarded to him.
3. During the pendency of the construction of the houses, some dispute arose between the parties. Petitioner asked the department to refer the matter to the Arbitrator. His prayer was acceded to and the Superintending Engineer named Arbitrator as per arbitration clause in the agreement, was appointed to adjudicate upon the dispute some where in the year 1976. Petitioner filed his claim before the Arbitrator. Between 1976 and 27.11.1984, only three hearings took place before him i.e. one in 1979 and the last on 27.11.1984. On the last date of hearing X.E.N. appearing on behalf of the department, made a statement before the Arbitrator that the relevant record could not be made available despite his best efforts and without that record he would not be in a position to defend the department. To this, the contractor replied that the case is pending for more than eight years, therefore, department is not entitled to any adjournment and the case may be decided on merits. However, the Arbitrator adjourned the matter till the end of February, 1985. The Arbitrator did not have proceedings and that led to the issuance of a notice by the contractor to the department asking for removal of the Arbitrator and appointment of a new Arbitrator according to the arbitration agreement. The contractor did not get any reply from the department. Thereupon, the contractor made an application under Sections 8, 11, 12 and 20 of the Arbitration Act for the removal of the Arbitrator and for appointment of new Arbitrator. Trial Court dismissed the application and held that the Arbitrator cannot be removed. For arriving at this finding, trial Court took into consideration the correspondence brought on the file for showing that relevant documents were lying with the Vigilance Bureau. In these circumstances, it was held that proceedings were delayed due to non-availability of the record and not because of conduct of the Arbitrator. The order of the trial Court is being challenged here in this civil revision.
4. Having heard the learned counsel for the parties at length, I am of the view that the impugned order cannot be sustained. On the appointment of Arbitrator, dispute was referred to him on 26.11.1976. Only 2-3 hearings took place before him within a span of eight years. In eight years, the department could not produce the record before the Arbitrator. When the matter was adjourned to the end of February, 1985 neither record was produced nor proceedings were revived. Non-production of documents by the Department cannot be ground to adjourn the case sine die. As a matter of fact, proceedings before the Arbitrator clearly indicate that the Arbitrator failed to proceed in the matter in accordance with law. Thus, it is a fit case for his removal and for appointment of another Arbitrator.
5. Since sufficient time has elapsed between the reference and the dispute by the Contractor till this day, it is quite possible that there may be a different Superintending Engineer who may be holding the post in the circle or in the department. For that matter, a direction can be given to the department to appoint the Superintending Engineer, Construction Circle, P.W.D. (B & R), Sector. 17, Chandigarh (U.T).
6. Consequently, the civil revision is allowed, the impugned order is set aside and a direction is issued to the Superintending Engineer to enter into reference on the basis of the claim made by the petitioner. It is possible that the claim made to the Superintending Engineer then may not be available, therefore, the petitioner can file a copy of the claim which shall be treated to be claim. The Arbitrator shall decide the dispute within four months from the date of entering into reference which he would be deemed to have entered when the parties appear before the Arbitrator on a date to be fixed by this Court. It shall be the responsibility of the department to produce the relevant record and no adjournment shall be given on the ground that record is not available. If the record is not available, then duplicate record, if possible, can be produced. In case the Arbitrator fails to decide the dispute within the aforesaid period, then it shall be open to the petitioner to approach competent Court for his removal. On his application, new Arbitrator other than the Superintending Engineer shall be appointed as Arbitrator. No costs.
7. Parties through their counsel are directed to appear before the Arbitrator on August 16,1993.