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(b) the conciliator shall not be presented by the parties as a witness in any arbitral or judicial proceedings."

22. A plain reading of Section 80 makes it clear that the conciliator cannot act as an arbitrator or his representative or counsel of a party in any arbitral or judicial proceedings in respect of a dispute. It is thus evident that the MSEFC cannot act as conciliator as well as arbitrator, or it may choose to refer the dispute to any centre or institution providing alternate dispute resolution services for the parties to conciliation or arbitration. However, once the MSEFC acts as conciliator, in view of provisions of Section 80, it is prohibited from acting as arbitrator.

23. Admittedly, in the present case, respondent No. 1 conducted the conciliation proceedings between the petitioner and respondent No. 3 and by the impugned order, terminated the same as being unsuccessful. What is surprising is that respondent No. 1 - MSEFC, having conciliated the dispute between the parties and conciliation proceedings being unsuccessful and terminated, the MSEFC itself initiated to arbitrate the dispute between the same parties. In our view, respondent No. 1-MSEFC itself, could not have initiated arbitration proceedings between the petitioner and respondent No. 3. In terms of the provisions of sub-section (3) of Section 18 the MSMED Act, respondent No. 1-MSEFC ought to have referred the dispute between the petitioner and respondent No. 3 to any institution or centre providing alternate dispute resolution services for arbitration. The impugned order, so far as it relates to authorising respondent No. 1 - MSEFC to initiate arbitration proceedings/arbitral dispute cannot be sustained and the same deserves to be quashed and set- aside.

24. We, accordingly, dispose of the petition by passing the following order:

1. We hold that the despite independent arbitration agreement between the petitioner and respondent No. 3, respondent No. 1 - MSEFC has jurisdiction to entertain reference made by respondent No. 3 under Section 18 of the MSMED Act.

2. Clause 2 of the operative part of the impugned order i.e. "Arbitration proceeding be initiated U/s. 18(3) of MSMED Act 2006 and that this council shall act as an Arbitrator Tribunal" is quashed and set-aside and respondent No. 1 - MSEFC is directed to refer the dispute between the petitioner and respondent No. 3 to any institution or centre providing alternate dispute resolution services for arbitration.

Respondent No. 1 - MSEFC shall take necessary steps as expeditiously as possible and, in any case, within a period of four weeks from the date of receipt of this order.

3. Rule is, accordingly, made absolute in the above terms."

17. Per contra, learned counsel for the Respondent has relied upon the judgment of Patna High Court in LPA No. 1036 of 2018, dated 14th February 2019, Best Towers Pvt Ltd v. Reliance Communication Ltd, relevant portion of which reads as under: