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1. The appellant/Hindustan Steelworks Constructions Limited (in short, 'the appellant/HSCL'), a Public Sector Company, has filed the present appeal under Section 37 of the Arbitration & Conciliation Act, 1996 (in short, 'the A&C Act') against the judgment and order dated 7.2.2016 passed by the learned Single Judge in OMP (COMM) No.411/2016, dismissing its petition under Section 34 of the A&C Act, praying inter alia for setting aside an order dated 11.2.2015 passed by the Appellate Authority in an appeal preferred by the respondent/NTPC against Awards dated 10.4.2012 and 10.5.2012 made by the learned Arbitrator appointed under the Permanent Machinery for Arbitration (in short 'the PMA'), an alternate dispute redressal mechanism devised by the Government.

12. Aggrieved by the impugned order dated 7.12.2016 and the stand taken by the respondent/NTPC in its communication dated 3.1.2017, the appellant/HSCL has filed the present appeal.

13. Mr. Patwalia, learned Senior Advocate appearing for the appellant/ HSCL canvassed that the learned Single Judge ought to have followed the decision of the Supreme Court in the case of M/s. Northern Coldfield Ltd. (supra) and taken the view expressed therein to its logical conclusion by directing the respondent/NTPC to agree for the appointment of a Sole Arbitrator instead of leaving the matter to the whims of the respondent/NTPC who has now declined its consent for being referred to arbitration under the A&C Act. It was argued that the position taken by the respondent/NTPC in its communication dated 3.11.2017, has virtually left the appellant/HSCL without a legal remedy. Learned counsel contended that in any event, the stand of the respondent/NTPC that the disputes between the parties ought to be referred to the Cabinet Secretariat under the PMA, runs contrary to the judgment of the Supreme Court in the captioned case, wherein it has been held that arbitration proceedings conducted by an Arbitrator appointed under the PMA, is outside the statutory framework and any award made in terms of the PMA, is neither amenable for being set aside under the statute (earlier the Arbitration Act, 1940 and subsequently replaced by the A&C Act) and nor could the same be made rule of the court, for being enforceable as a decree.

14. Per contra, Mr. Alag, learned Senior Advocate appearing for the respondent/NTPC opposed the present appeal and referred to OM dated 7.12.2015 issued by the Department of Public Enterprises, Government of India on the aspect of settlement of commercial disputes inter se Public Sector Enterprises through the PMA, calling upon all the Administrative Ministries/Departments of the Government of India to desist from litigating in any court of law directly or through public sector undertakings under them and instead, approach the PMA for arbitration and the Appellate Authority, i.e., Secretary, Law in appeal and if the dispute remains unresolved, to refer the same to the Cabinet Secretariat for advice. He thus argued that the present appeal is not maintainable as the appellant/ HSCL has failed to exhaust the remedy of approaching the Cabinet Secretariat for advice, which is open to it and even otherwise, the appellant/HSCL cannot invoke the A&C Act, since it has a remedy before the civil court, as observed in the case of M/s. Northern Coldfield Ltd. (supra).

23. The OM dated 07.12.2015 issued by the Department of Public Enterprises, Government of India adverts to the earlier OM dated 12.06.2013 with regard to the nature of cases that are covered under the PMA and refers to instances where CPSEs have sought to take legal recourse through courts of law to settle inter-se disputes. The said OM concludes by calling upon all CPSEs to approach the PMA for arbitration and the Appellate Authority, i.e., the Secretary (Law) for instituting an appeal and in the event the dispute remains unresolved, to approach the Cabinet Secretariat for advice.