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2.6 In this clause the expression "CMD MTNL" includes any other officer who is for the time being the Administrative head of the organization whether in addition to other functions or otherwise."

3. A dispute arose between the parties and IEPCL filed a writ petition being WP No. 1778/1992 before this Court making several prayers. During the pendency of above writ petition, MTNL appointed Arbitrator in terms of arbitration agreement. The Arbitrator was a nominated Arbitrator in terms of the agreement and he started the process of arbitration. However, the said nominee could not continue the arbitration proceedings and in his place another nominee was appointed by the CMD, MTNL viz. Mrs. Santosh Duggal, a retired Judge of this Court, as sole Arbitrator. When Mrs. Santosh Duggal proceeded with the arbitration proceedings, IEPCL filed Writ Petitions before this Court making allegation of bias against Mrs. Santosh Duggal and made a prayer for terminating the proceedings before Mrs. Santosh Duggal and terminating her mandate. The proceedings before Mrs. Santosh Duggal were challenged by IEPCL in WP No. 1728/98 and 1729/98 wherein she was arrayed as a party for mis-conducting the proceedings. Notice of Writ Petitions was issued to her. It seems considering the allegations of bias made against her, she resigned as Arbitrator on 2.9.1998. Thereafter, CMD MTNL vide letter dated 21.6.1999 appointed Mr. Altaf Ahmed, the then Additional Solicitor General to enter upon and adjudicate the dispute. Shri Altaf Ahmed held some hearings and thereafter declined to act as an Arbitrator due to paucity of time and once again the matter went back to CMD, MTNL for appointment of fresh Arbitrator. The CMD MTNL vide letter dated 24.7.2004 appointed Shri A.K.Srivastava as Sole Arbitrator. After Shri A.K.Srivastava entered upon the reference and started arbitration proceedings, IEPCL raised preliminary objection of limitation and stated that since the period of four months had already expired, the Arbitrator had become functus Officio and could not continue the arbitration proceedings. The other preliminary objection raised by IEPCL was that the first invocation took place in 1995 hence, the arbitration proceedings could not be held under Arbitration and Conciliation Act, 1996 and the arbitration could not be conducted under the aegis of International Centre for Alternative Dispute Resolution (ICADR) and be governed by ICADR rules without the consent of respondent (IEPCL).

4. As far as application of Arbitration & Conciliation Act, 1996 Act was concerned, MTNL agreed to this objection and stated that the proceedings had to be under the Arbitration Act, 1940. But to that IEPCL took a stand that MTNL could not be allowed to take a stand contrary to its earlier stand that the proceedings should be continued under the Arbitration & Conciliation Act, 1996. The learned Arbitrator observed that there could be no estoppels against law. Since as per law, proceedings could continue only under 1940 Act the IEPCL's plea that MTNL could not be allowed to take the stand about 1940 Act was untenable. The Tribunal held that it had no jurisdiction to decide the question about the constitution of Tribunal since the Tribunal had been appointed as Sole Arbitrator by CMD MTNL in terms of the agreement therefore, the Tribunal could not rule against its own validity. Regarding taking services of ICADR, the learned Arbitrator observed that in view of clear provisions of rule 1 that the rules shall be applicable only with consent of parties, it was held that ICADR rules shall not be applicable in this case. ICADR was allowed to claim amount from MTNL for services rendered so far. The Arbitrator also enquired from IEPCL as if IEPCL was ready to give extension of time but IEPCL stated that they were not prepared to give extension of time. It was also argued that the Tribunal should not continue to proceed on the presumption that the Court would extend time limit. The Tribunal however, observed that the Arbitration can continue even though the period of four months had expired and fixed next date of hearing for fixing modalities for further proceedings and the proceedings were continued by the Tribunal. It is after this order while MTNL filed a petition for extension of time under Section 28, IEPCL filed petition seeking above stated reliefs.

6. In OMP No. 594/2006, IEPCL has stated that successive references made by CMD MTNL to his own General Managers lastly to Shri R.C.Agarwal on 20.10.1995, disclosed chaotic state of affairs in the office of CMD MTNL. The Arbitrator was supposed to publish the award within four months from the date of entering reference however, the appointment of five officers of MTNL as Arbitrators was made without any mention in the ongoing Civil Writ Petition. IEPCL had indicated their claim against MTNL to the tune of Rs.240 lac. By suppressing the facts, the Counsel for MTNL informed the Court on 26.5.1997 that insofar as the petitioner's dispute with MTNL was concerned, an Arbitrator had been appointed. However, a copy of reference of disputes for arbitration by Mrs. Santosh Duggal, a retired Judge was withheld by MTNL with a malafide intent. MTNL termed itself as claimant before the Arbitrator, but failed to appear before the Arbitrator on 6.6.1997 and even the Arbitrator did not reach the venue of arbitration. IEPCL referred to a office memo of MTNL and pleaded that a plain reading of the office memo manifested scant regard to the process of law and the arbitral procedure. It is submitted that IEPCL participated in the proceedings under protest and without prejudice to its rights and lodged objections about the validity and maintainability of the reference by the MTNL vide letter dated 12.3.1997. It is further submitted that for reasons best known to her, Mrs. Santosh Duggal was showing undue indulgence towards MTNL. The reference was barred by limitation and the reference was invalid as much as MTNL was yet to collect data from the Area Offices to formulate its claim in terms of interoffice note. About Mr. Altaf Ahmed it is stated in the petition that after about 4 ½ months of asking him to act as an Arbitrator Mr. Altaf Ahmed entered upon reference on 6.11.1999. IEPCL filed objections before Mr. Altaf Ahmed on two grounds viz. applicability of Arbitration & Conciliation Act, 1996 and the proceedings being governed by rules of ICADR. Mr. Altaf Ahmed was also informed that he had become functus officio in terms of Schedule I Rule 3 under Section 3 of Arbitration Act, 1940. Thereafter, the matter was listed for arguments. It is stated that on 12.2.2000 Mr. Altaf Ahmed did not turn up at the venue of the arbitration, neither representative of MTNL came and it was presumed by IEPCL that Mr. Altaf Ahmed, being a member of the Governing Counsel of ICADR, since had become functuous officio because of expiry of four months, he did not come to the venue of the arbitration. However, Mr. Altaf Ahmed withdrew from the arbitration on 29.3.2004 and thereafter dispute was referred to Shri A.K.Srivastava. Again same objections were raised before Mr. A.K.Srivastava. It is alleged that respondent no.3 ICADR became collusive with MTNL at the back of IEPCL and by a letter dated 3.12.2004, ICADR raised a bill upon IEPCL requiring IEPCL to make a payment of Rs.56,000/- on ad hoc basis as share of the fees, which was computed at Rs.61,449/- + Rs.15,000/- as overhead costs. It is further stated that the ICADR surreptitiously got the number of the Arbitration case changed from 1103/2001 - ICADR to Arbitration Case No. 1004/97-ICADR, it was repeatedly clarified by IEPCL that the proceedings under the aegis of respondent no.3 ICADR were without jurisdiction and non-est.

7. It is not disputed that the learned Arbitrator upheld the two preliminary objections raised by the petitioner about non-applicability of Arbitration & Conciliation Act, 1996 and non-applicability of ICADR rules and observed that the reference would be governed by the Arbitration Act, 1940, however, the contention of IEPCL is that the Arbitrator consciously became collusive with MTNL and ICADR and misconducted himself by clinging to an invalid reference by holding that even though he had become functus officio as per Schedule I Rule 3 of the Arbitration Act, 1940 but he could conduct the arbitration proceedings further in anticipation of extension of time by this Court under Section 28 of the Arbitration Act, 1940. The Arbitrator was acting under an invalid reference. His changing case number of arbitration case, on the face of it, showed that the learned Arbitrator misconducted himself in the proceedings and his misconduct verges on fabrication of record with a malafide intention. It is further stated that the learned Arbitrator on 9.3.2005 fixed his fees as Rs.10,000/- per hearing to be shared equally by the parties and wanted both the parties to deposit 50% share of five hearings held by him till then, after deduction of tax at source as per law. In this order the Arbitrator recorded that he had received Rs.10,000/- from ICADR out of the money paid by MTNL, therefore, MTNL should send cheque of balance amount of Rs.15,000/-. This shows that there was collusion of Arbitrator with MTNL not only in the matter of fees but in the subject matter of the reference. It is pleaded that the appointments of Mrs. Santosh Duggal, Mr. Altaf Ahmed and Shri A.K.Srivastava were made in terms of ICADR Rules and Arbitration & Conciliation Act, 1996. The authority of Mr. A.K.Srivastava had become non-est and deserved to be revoked under Section 5 of the Arbitration Act, 1940. It is also argued that CMD, MTNL being a party raising disputes about MTNL could not have appointed Arbitrators. CMD MTNL had been acting arbitrarily in appointing different Arbitrators without any authority. It is submitted that the arbitration agreement was silent in respect of supplying the vacancy when first appointed Arbitrator did not proceed with the reference. Thereafter, CMD MTNL had no right to appoint another Arbitrator in terms of the Arbitration Agreement. Even otherwise the reference made by CMD, MTNL was invalid since it was a reference under 1996 Act and under ICADR Rules which were not envisaged under the agreement.