1 arbp510.10.doc ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 510 OF 2010 Proximus Knowledge & Tehnology Services Pvt.Ltd. .. Petitioner versus Mr. Mark Lewitt .. Respondent. Mr. B.A.Desai, Sr. Counsel with Mr. Avinash Avhad and Ms. Meena Kshirsagar, advocate for Petitioner. Mrs. Anjali Chandurkar i/b. Crawford Bayley & Co. for Respondent. CORAM: S.C.DHARMADHIKARI, J. DATED: 14TH FEBRUARY, 2011 P.C. 1 This Petition under section 34 of the Arbitration and Conciliation Act, 1996 was placed for dismissal today, because on 8.2.2011 it was stated that counsel is not available. 2 Today, when it was placed for dismissal Shri B.A. Desai, Learned Senior Counsel appears on behalf of the Petitioner and the Respondent was represented by Ms.Anjali Chandurkar. With their consent, the Petition is taken up for admission. 2 arbp510.10.doc 3. Mr. Desai, learned Counsel appearing on behalf of the Petitioner submits that the claim of the Respondent arose out of an employment agreement. The Respondent was a foreign national. The Respondent sought employment and was employed on terms and conditions of the employment agreement. The Respondent was a high level executive and was to set up a call centre for the Petitioner. The Petitioner pointed out to the Respondent that the employment agreement dated 1st May, 2003 has not been abided by him and he has committed several breaches thereof. By letter dated 24th January, 2004, the Petitioner called upon the Respondent to provide details and written explanation for the acts of omission and commission enlisted therein, failing which they stated that they would adopt legal proceedings. 4 The Arbitrators therefore, were only obliged to consider the statements made and the allegations levelled against the respondent in the correspondence, but not substitute their opinion with that of the Petitioner. Once the Petitioner has substantiated that the call center was not set up in terms of the agreement between the parties and that is why the termination was effected, then, the Arbitrators should not have questioned this judgment of the Petitioner. They were not considering a claim arising out of any 3 arbp510.10.doc public employment, which has constitutional and statutory protection. It was master servant relationship and once the master is not satisfied with the work of the servant, he has absolute authority to terminate him. In such circumstances, by sitting in judgment over the decision of the Petitioner the Arbitrators have committed grave misconduct. They ought to have confined themselves to the limits of the adjudication. 5 Even other wise, according to Shri Desai, when the Petitioner was called upon to prove the allegations, then, the Petitioner made a request to examine the signatories to the correspondence and two senior level officers. However, the request to examine these witnesses has been illegally and wrongfully rejected. This has caused serious prejudice to the Petitioner and violates the principles of natural justice. 6 For all these reasons and when the Award directs payment in Foreign currency to a Foreign national, all the implications ought to have been considered by the Arbitral Tribunal and the Award is therefore, contrary to public policy. 7 On the other hand, Ms.Anjali Chandurkar, learned Counsel appearing on behalf of the Respondent submits that the 4 arbp510.10.doc clause/agreement of arbitration between the parties has not been disputed. That the employment agreement has by clause 7 empowered termination of the agreement is also not in dispute. However, if the termination is effected in terms of clause 7(iii), then, cause for such termination should be provided. Moreso, when the term “cause” is understood by the parties as cases which are covered by various sub-clauses below clause 7(iii) of the agreement. In such circumstances, the interpretation placed by the Arbitrators on this clause cannot be termed as perverse or so unreasonable and contrary to public policy, as would require interference by this Court in its limited jurisdiction. This is not a court of first appeal where reappreciation of the oral and documentary evidence can be undertaken. In these circumstances, the Award be upheld and Petition be dismissed. More particularly, because the issues were framed on 4th October, 2007 and an affidavit of the Respondent in examination in chief was tendered. After the matter proceeded and statements were made on behalf of the Petitioner that they do not wish to lead any oral and documentary evidence, then, making of an application to summon witnesses in the month of April, 2009 and that too during the course of argument is a course rightly refused by the Arbitral Tribunal and they have not breached or violated the principles of natural justice in any manner. For all these reasons, the Award need not be 5 arbp510.10.doc interfered with and the Petition be dismissed. 8 With the assistance of learned Counsel appearing for the parties, I have perused the Petition and all Annexures thereto and the Award. 9 In my view, the terms of reference were clear. The arbitration agreement postulates any dispute or controversy arising under or in connection with this Agreement, which shall be settled exclusively by arbitration. The jurisdiction of the arbitrators has not been questioned. The exercise of the said jurisdiction is what is put in issue. The arbitrators had before them the statement of claim filed by the Respondent alleging that the termination of the Employment Agreement is wrongful and illegal. The Petitioner on the other hand, justified their acts by alleging that there were breaches committed of the terms and conditions of the employment agreement. The same have been listed in details. To my mind, when the termination itself is questioned by the Respondent and he seeks declaration as that being illegal and not binding on him, the burden to prove it is on him. In this case, in the statement of claim, he has pointed out as to how the agreement did not contemplate that he would work at an office to be made available by the Petitioner. He has to set up a call center, which he did, 6 arbp510.10.doc from the premises made available to him. Further, he has enlisted the steps taken by him in making the call center functional. He faults the Petitioner for not being cooperative and responsive to the requirements which were placed before by the Respondent. Thus, the correspondence proceeds on the basis that the respondent has complied with his part of the obligations but the Petitioner are at fault. The Petitioner on the other hand stated that breaches have been committed as enlisted in letter dated 24th February, 2004. Once that is the stand taken by the Petitioner and they desire to justify terminating the agreement so also the breaches committed by the Respondent, the Arbitrators were right in proceeding on the foundation that the Petitioner must prove their allegation. At more places than one, the Arbitrators have observed that the Petitioners have failed to prove their allegations despite reasonable opportunity to do so. In the award detailed reasons have been given as to why the application seeking leave to lead oral evidence made at a belated stage by the Petitioner, has been rejected. It is not unreasonable and improper for the arbitrators to assume that if the matter is pending before them from 2007, the termination is of 2004, then the opportunity sought to lead evidence by producing some officers at the fag end of the proceedings and that too while oral arguments have commenced, deserves to be rejected. This rejection cannot be said to be so 7 arbp510.10.doc unreasonable or perverse as would require interference in the limited jurisdiction. 10 Even the interpretation placed by the arbitrators on Clause 7 of the agreement and particularly, clause (iii) thereof is not unreasonable. I am in agreement with Ms. Chandurkar that the clause sets out as to what could be termed as a “cause” for termination. Now, if the said clause is perused in its entirety, then, if the executive has not properly performed his obligation under the agreement and followed any direction of the Board consistent with the agreement and even that breach is not remedied despite written notice and the directions are not unreasonable, lacking in good faith, then, the Respondent is obliged to comply with the same. Gross negligence and any other breach of material provision of the agreement, which remained uncured or each or any of these causes therefore if alleged and made foundation of the termination, then, it is reasonable to presume that the Petitioner must prove their allegations or breaches or else the termination is not justified. Therefore, even if the agreement in question is an employment agreement and the master has absolute power and discretion insofar as the work and performance thereof, yet, when the parties have worded the agreement in such a manner, then the insistence of the Tribunal cannot be said to be illegal or perverse. 8 arbp510.10.doc The Petitioner did not prove any of the allegations. The Award has analysed the statement of claim, the defence and oral and documentary evidence and it has been held that the Respondent- claimant’s version has gone uncontroverted throughout. That is a finding recorded from paragraph-15 and 17 to 19 of the Award. In these circumstances, I am of the opinion that the award cannot be termed as contrary to public policy. 11 As a result of the above discussion, the Petition fails and it is accordingly dismissed but without any order as to costs. (S.C.DHARMADHIKARI, J.)