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Showing contexts for: va tech in Mohammad Faruk Warasi vs State Of Chhattisgarh & Another on 8 July, 2016Matching Fragments
2. Aforesaid applications were dismissed by the learned Arbitration Tribunal on the following factual background: -
3. The petitioner(s) herein filed reference petitions under Section 7 of the Act of 1983 by raising dispute regarding non-payment and other connected matters of dues towards the work contract with the respondent State.
4. The above-stated applications were rejected by the learned Arbitration Tribunal by order dated 13-1-2012. The learned Arbitration Tribunal considered the said reference on the issue of maintainability / jurisdiction of the Tribunal and without entering into the merits of the claim reached to the conclusion that the agreement which was executed between the parties contains arbitration clause as clause 29 which provides for forum to the parties to place their disputes. It was further considered and held that as per the said arbitration clause, the dispute firstly was required to be referred to the Superintending Engineer in writing for his decision and the decision thereof is amenable to the Chief Engineer. The person aggrieved by the decision of the Chief Engineer can refer the dispute to the Arbitration Board to be constituted by the State Government consisting of three members and the constitution of the said Tribunal is different from constitution of the Tribunal as constituted under Section 3 of the Act of 1983 and as such, the disputes need to be referred to the final authority and thereafter to the Arbitration Tribunal as mentioned in the agreement, not to this Tribunal and thereafter placing reliance on the decision of the Supreme Court in the matter of VA Tech Escher Wyass Flovel Limited v. Madhya Pradesh State Electricity Board and another 1 and further 1 (2011) 13 SCC 261 and other connected matters placing reliance on the decision of Ravikant Bansal v. Madhya Pradesh Rural Road Development Authority and another2 the Arbitration Tribunal dismissed the reference petitions holding that in view of the decision of the Supreme Court, the matter is beyond the jurisdiction of this Tribunal. Thereafter, on 17-5-2012, the petitioners herein filed an application under Section 17-A of the Act of 1983 for recalling of orders and restoration of reference petition stating inter alia that the judgments of the Supreme Court in VA Tech (supra) and Ravikant Bansal (supra) have been rendered per incuriam by the Supreme Court in the matter of Madhya Pradesh Rural Road Development Authority and another v. L.G. Chaudhary Engineers and Contractors 3 decided on 24-1-2012, therefore, the order dismissing the reference petition for want of jurisdiction / non-maintainability be recalled and the reference petition be restored to its original file for hearing and disposal in accordance with law. Learned Arbitration Tribunal by its impugned order rejected the said application holding that in view of the second proviso to Section 17-A of the Act of 1983, the Tribunal has no power to review its own award and further held that the reference petition filed by the petitioner was rejected on 13-1-2012 relying upon the decision of the Supreme Court in VA Tech 2 (2012) 3 SCC 513 3 (2012) 3 SCC 495 and other connected matters (supra), as the law operative on the date of decision by this Tribunal and further held that the subsequent decision rendered by the Supreme Court in L.G. Chaudhary's case (supra) on 24-1-2012 will not give ground to the petitioner to seek recall or review of its order passed by the Tribunal on 13- 1-2012 and the petitioner is free to file a revision under Section 19 of the Act of 1983 challenging the order of the Tribunal dismissing the reference petition on the ground of want of jurisdiction. Feeling aggrieved against the order rejecting his application for recalling the earlier order and restoration of reference petition, these revision petitions have been filed by the petitioners under Section 19 of the Act of 1983.
24. In this case, as noticed earlier, the Tribunal has dismissed the reference petitions only on the ground of availability of arbitration clause and resting its decision on the judgment of the Supreme Court in VA Tech (supra) which was further explained by Ravikant Bansal (supra).
25. In order to consider the dispute raised at the Bar, it would be appropriate to notice the judgment of the Supreme Court in VA Tech (supra) paragraph 3 of which reads as follows: -
"3. Subsequently, Parliament enacted the 1996 Act. The 1996 Act only applies where there is an arbitration clause but it does not apply where there is none. The 1996 Act covers all kinds of disputes including the dispute relating to work contracts. In our opinion, the 1983 Act and the 1996 Act can be harmonised by holding that the 1983 Act only applies where there is no arbitration clause but it stands impliedly repealed by the 1996 Act where there is an arbitration clause. We hold accordingly. Hence, the impugned judgment cannot be sustained and we hold that the application under Section 9 of the 1996 Act was maintainable."
27. Thereafter, the Supreme Court in L.G. Chaudhary's case (supra) decided on 24-1-2012 relying upon its earlier decision in the matter of State of M.P. v. Anshuman Shukla20 held that the decision of the Supreme Court in VA Tech (supra) was rendered per incuriam and it has held in paragraphs 26, 41 and 42 as under: -
"26. It is clear, therefore, that in view of the aforesaid finding of a coordinate Bench of this Court on the distinct features of an Arbitral Tribunal under the said M.P. Act in Ashuman Shukla case (supra) the provisions of the M.P. Act are saved under Section 2(4) of AC Act, 1996. This Court while rendering the decision in Va Tech (supra) has not either noticed the previous decision of the coordinate Bench of this Court in Anshuman Shukla (supra) or the provisions of Section 2(4) of AC Act, 1996. Therefore, we are constrained to hold that the decision of this Court in Va Tech (supra) was rendered per incuriam.
42. Therefore, the appeal is allowed and the judgment of the High Court which is based on the reasoning of Va Tech (supra) is set aside. This Court holds that the decision in Va Tech (supra) has been rendered in per incuriam. In that view of the matter the arbitration proceeding may proceed under the M.P. Act of 1983 and not under AC Act, 1996."
28. The petitioners after having come to the knowledge of the decision rendered by the Supreme Court in L.G. Chaudhary (supra), made an application before the Arbitration Tribunal for recalling its earlier order dismissing the reference petitions and restoration of the reference petitions on the basis of L.G. Chaudhary (supra) which came to be rejected by the impugned order by holding availability of arbitration clause to be determined by the Arbitration Tribunal constituted by the Government and not by the Arbitration Tribunal constituted under the Act of 1983 and it would amount to review its own order. The fact remains that the earlier reference petitions were dismissed for want of jurisdiction. Distinction between "recall of order" and "review of order" has earlier been considered and it has been held that recall of order is different from review of order and as such, review of order is expressly barred by the proviso to Section 17-A of the Act of 1983.