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Q: I had a dispute regarding my employment dues with the railways and had filed a declaratory suit before the city civil court.
During the course of hearing, a petition was filed on my behalf proposing appointment of an arbitrator to resolve the dispute. The Railways advocate initially raised several objections to this, but eventually after hearing the parties, the court passed an order appointing an advocate of the said court as arbitrator. The Railways then appeared before the arbitrator contested the proceeding. Eventually, the arbitrator passed an award in my favour in 1997. The Railways did not challenge the said award. Now after several years when I put the award into execution and obtained an order for attachment of the Railways bank account, the Railways have filed a petition before the high court challenging the jurisdiction of the city civil court to appoint the arbitrator in our case. What are my options?
N. Choudhary,
West Bengal
A:The Arbitration and Conciliation Act of 1996 provides that a plea that the arbitral tribunal does not have jurisdiction to act as arbitrators has to be raised before the said tribunal itself and that too not later than the submission of the statement of defence. In your case it appears that not only have the Railways not done so but on the contrary has proceeded to participate in the proceedings and contest the same on merits. Since the plea was not taken then, it cannot usually be raised subsequently unless good reason is shown.
Moreover, it appears that the Railways have not even initiated proceedings under Section 34 of the Act for setting aside the award within the prescribed time of three months. The courts can permit this period to be extended only for a further maximum period of 30 days more but not thereafter.
Thus, the Railways cannot make any application for setting aside the award under the said Act. They have also not even challenged the city civil court order appointing the arbitrator for more than 10 years. Unless it can prove that orders were obtained by practicing fraud on court, it appears that the Railways have no right to challenge the award and are clearly bound by the principles of acquiescence, waiver and “estoppel” from raising such disputes and your chances of success are reasonably high.
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