# M/S Passwan Gas Agency Distributor Bharat Gas v. Union of India and others

- **Citation:** (2011) 1 ILRA 186
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-02-18
- **Case number:** Misc. (Recall) Application No.20211 of 2010
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-passwan-gas-agency-distributor-bharat-gas-v-union-of-india-and-others-41832
- **Pages:** 3

## Headnote

Arbitration & Reconciliation Act-1996Section-17-appointment of arbitratioRreview application-on ground Hon'ble
Chief Justice rejected application on
consideration-during
pendency
of
application the parties have appointed
the arbitrator-held-wholly misconceivedif application moved for appointment of
arbitrator-it
does
not
mean
the
arbitrator can not be appointed n terms
of
arbitral
agreement-unless
statue
provides-power of review can not be
exercised.

Held: Para 6

Considering the above, as under the
Arbitration and Conciliation Act, 1996,
there is no power of review by the Chief
Justice or his delegate, considering the
question, therefore, exercise of powers
of substantive review would not arise.
Case law discussed:
(2005) 8 SCC 618; AIR 1981 SC 606
1 All] M/S Passwan Gas Agency Distributor Bharat Gas V. Union of India and others
187

## Text

186 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
during the course of enquiry to find out
whether these witnesses can be relied on to
hold
the
delinquent
guilty
in
the
departmental enquiry. But where incident
may be same, but otherwise the texture of
charges & the real allegation is different,
witnesses are different, different procedure
is followed in both the kinds of proceedings,
mere acquittal in criminal case will not
make
an
impact
on
departmental
proceedings particularly when same has
already been concluded and there is no
reason or occasion to review the same.

25. In this case, departmental enquiry
was not only concluded but the statutory
appeal and revision filed by petitioner also
stood rejected. Petitioner did not challenge
the same before any Court of law and
accepted it. It is only when in criminal
proceedings after few years he was
acquitted, then for the first time in 2004 he
approached revisional authority to review
its order. Petitioner did not point out any
error or irregularity in the departmental
enquiry held against him. The only
submission is that since he has been
acquitted in the criminal case, therefore
order of punishment passed in departmental
enquiry after condoning delay should be set
aside even though there is no legal infirmity
in said proceeding. To my mind, the
departmental inquiry have attained finality
on the basis of independent proceedings. In
my view, on the basis of acquittal in a
criminal case where the things were
different as discussed above, the authority
was not justified to review of the order of
punishment
passed
in
departmental
proceedings. Revisional Authority has
considered these aspects in the impugned
order and I do not find any legal infirmity in
the approach of revisional authority as also
in its reasoning & conclusion.

26. The writ petition is devoid of
merit. Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.02.2011

BEFORE
THE HON'BLE FERDINO INACIO REBELLO, C.J.

Misc. (Recall) Application No.20211 of 2010

M/S Passwan Gas Agency Distributor
Bharat Gas

 ...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri O.P.Srivastava
SriAmar Nath Singh

Counsel for the Respondents:
A.S.G.
Sri M.E. Khan

Arbitration & Reconciliation Act-1996Section-17-appointment of arbitratioRreview application-on ground Hon'ble
Chief Justice rejected application on
consideration-during
pendency
of
application the parties have appointed
the arbitrator-held-wholly misconceivedif application moved for appointment of
arbitrator-it
does
not
mean
the
arbitrator can not be appointed n terms
of
arbitral
agreement-unless
statue
provides-power of review can not be
exercised.

Held: Para 6

Considering the above, as under the
Arbitration and Conciliation Act, 1996,
there is no power of review by the Chief
Justice or his delegate, considering the
question, therefore, exercise of powers
of substantive review would not arise.
Case law discussed:
(2005) 8 SCC 618; AIR 1981 SC 606
1 All] M/S Passwan Gas Agency Distributor Bharat Gas V. Union of India and others
187
(Delivered by Hon'ble F.I.Rebello, C.J.)

1. This is an application for recall of
the order dated 22.01.2010. By that order,
the application was dismissed and the
learned Chief Justice exercising his
powers
under
Section
11
of
the
Arbitration & Conciliation Act, 1996
proceeded on the basis that during the
pendency
of
the
application,
the
respondents have appointed an Arbitrator.

2. By the present application, what
the petitioner contends is that the
arbitration proceedings have been started
after filing of the application. It is also
pointed out that if the parties to the
dispute failed to appoint an Arbitrator
within 30 days, on receipt of such request,
the
Chief
Justice
can
make
the
appointment of an independent and
impartial Arbitrator.

3. The law as now settled is that
merely because Section 11 of the
Arbitration & Conciliation Act, 1996 is
invoked, that does not per se mean that an
arbitrator
in
terms
of
the
arbitral
agreement cannot be appointed. It is in the
discretion of the Chief Justice or his
delegate, who is hearing the matter to
decide whether to appoint an arbitrator in
terms of the agreement or to appoint an
independent arbitrator. In the instant case,
the learned Chief Justice noted the fact
that an Arbitrator had been appointed and
accordingly dismissed the application.
Therefore, the application as filed would
not be maintainable.

4. The proceedings are not ex parte.
This application at the highest would be
in the nature of a review application
considering the reasons disclosed in the
application by the petitioner herein.

5. It is now settled law as declared in
SBP & Co. Vs. Patel Engineering Ltd.
And Another, reported in (2005) 8 SCC
618 that the Chief Justice or his delegate
though not a Court but are exercising
judicial powers. The law further settled is
that insofar as review is concerned, the
power of review of substantive relief must
be specifically conferred. There is a
distinction between procedural review and
substantive review which has been
enunciated by the Supreme Court in the
case of Grindlays Bank Ltd. Versus
The Central Government Industrial
Tribunal and others, reported in AIR
1981 SC 606. I may gainfully refer to the
relevant portion of paragraph No.13 of the
said judgment, which reads as under :-

"13.
...
Furthermore,
different
considerations arise on review. The
expression 'review' is used in two distinct
senses, namely, (1) a procedural review
which is either inherent or implied in a
court or Tribunal to set aside a palpably
erroneous
order
passed
under
a
misapprehension by it, and (2) a review
on merits when the error sought to be
corrected is one of law and is apparent on
the face of the record. It is in the latter
sense that the Court in Narshi Thakershi's
case held that no review lies on merits
unless a statute specifically provides for
it, obviously when a review is sought due
to a procedural defect, the inadvertent
error committed by the Tribunal must be
corrected ex debito justitiae to prevent the
abuse of its process, and such power
inheres in every Court or Tribunal."

6. Considering the above, as under
the Arbitration and Conciliation Act,
1996, there is no power of review by the
Chief Justice or his delegate, considering
188 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
the question, therefore, exercise of powers
of substantive review would not arise.

7. For the reasons stated above, the
application is not maintainable. It is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.02.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 22315 of 2008

Abdul Kuddus Khan

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petititoner:
Sri Mirza Ali Zulfaquar
Sri Ikram Ahmad

Counsel for the Respondents:
Sri Ajay Singh
Sri Dhananjay Singh
C.S.C.

Constitution of India, Article 21-Delay in
payment
of
gratuity
and
pensionpetitioner
bearing
pensionable
post
retired on 31.07.2005-inspite of circular
dated 28.10.2006-No action taken-heldwithholding pension and other retiral
benefits for years together-not only
arbitrary and illegal but a sin if not
offence-considering
extraordinary-and
unexplained delay-exumpting cost of
two
Lacs
imposed-recoverable
from
personal benefits of erring officer-entire
amount be paid with 12% interest-detail
time schedule given.

Held: Para 36

Now, coming to another aspect of the
matter, if retiral benefits are paid with
extra ordinary delay, the Court should
award
suitable
interest
which
is
compensatory in nature so as to cause
some solace to the harassed employee.
No Government official should have the
liberty of harassing a hopeless employee
by withholding his/her lawful dues for a
long time and thereafter to escape from
any liability so as to boast that nobody
can touch him even if he commits an ex
facie illegal, unjust or arbitrary act.
Every authority howsoever high must
always keep in mind that nobody is
above law. The hands of justice are
meant not only to catch out such person
but it is also the constitutional duty of
Court of law to pass suitable orders in
such matters so that such illegal acts
may not be repeated, not only by
him/her but others also. This should be a
lesson to everyone committing such
unjust act.
Case law discussed:
OOS No. 4 of 1989 (Sunni Central Board of
Waqf, U.P. Lucknow & Ors. Vs. Gopal Singh
Visharad & Ors.); 1972 AC 1027; 1964 AC
1129; JT 1993 (6) SC 307; JT 2004 (5) SC 17;
(1996) 6 SCC 530; (1996) 6 SCC 558; AIR
1996 SC 715; (Writ Petition No. 34804 of
2004); 1985 (1) SLR-750

(Delivered by Hon'ble Sudhir Agarwal,J.)

1. Heard Sri Mirza Ali Zulfaquar,
Advocate for petitioner, learned Standing
Counsel for respondent No.1, Sri Ajay
Singh, Advocate for respondents No.2, 3
and 4 and Sri Dhananjay Awasthi,
Advocate for respondent No.5. With the
consent of learned counsel for the parties,
this writ petition is being decided finally
under the Rules of the Court at this stage.

2. The perennial complaint of
harassment of a retired employee on
account of non payment of his retiral dues
is again a cause of action in this writ
petition. Time and again, this Court has
expressed its concern and many a time
has taken serious view, imposing penal
interest and exemplary cost on the