1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR MISC.CIVIL APPLICATION NO.1427 OF 2009. Bishop D.K.Sahu, General Secretary, National Council of Churches of India .vs. The National Council of Churches of India and anr. =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- C ORAM : C.L.PANGARKAR, J. DATED : 18th December, 2009. 1. Heard Mr.Masood Shareef, learned counsel for the applicant and Mr.A.S.Jaiswal, learned counsel for the respondents. 2. This application has been filed under Section 11 of the Arbitration and Conciliation Act, 1996. 3. The petitioner is presently working as General Secretary of respondent no.1 – A society known as the National Council Of Churches of India (NCCI). The petitioner was selected by respondent no.2 – Executive Committee of NCCI as a General Secretary of the NCCI and he was so appointed w.e.f. 2 4/01/2005. His initial appointment was for a period of five years. There was a clause of renewal of such appointment for further period of five years at the time the petitioner was appointed. The first term of five yeas is supposed to come to an end on 03/01/2010. The petitioner apprehends that his services may not be continued by the respondent. The petitioner was informed by letter dated 13th June, 2009 that his services are not likely to be continued any further after the reappraisal and assessment of his work. Apprehending that his services may come to an end by 03/01/2010, he approached the Board of Arbitrators and asked them to arbitrate on the dispute between the petitioner and the respondent with regard to the proposed termination of the services of the petitioner. It is the contention of the petitioner that for a long time there was no response on behalf of the respondent with regard to the arbitration proceedings. The petitioner then approached the District Judge on 9th September, 2009 for an interim relief under Section 9 of the Arbitration and Conciliation Act. The said application came to be rejected. An appeal was preferred before the High Court. The High Court had disposed of the appeal because it was assured by the respondent that in any case the services of the petitioner will not be terminated before the expiry of 3 the period for which he was appointed initially. Later, this application has been filed. 4. The application is opposed by the respondent. Learned counsel for the petitioner brings to my notice the constitution of the NCCI and particularly brings to my notice the clause with regard to the General Meeting of the said NCCI. My attention was then invited clause (xv) of the said constitution reads as follows - “to Constitute a Board of Arbitration with terms and conditions as may be required to serve as a mechanism of Alternate Dispute Settlement to deal with dispute settlement, reconciliation and peace promotion. To encourage member bodies to include in their constitution a reference this Board of arbitration. If clause (xv) is read as it is, it is obvious that the constitution mandates that the NCCI, which is a Society registered under the Societies Registration Act, should constitute a Board of Arbitration with terms and conditions as may be required to serve as a mechanism of Alternate Dispute Settlement. The said constitution further mandates that the said Society should try to promote the Alternate Dispute Resolution System. The constitution nowhere mandates that such dispute must be referred to the 4 Arbitrators. Later, my attention was invited by the learned counsel to the Annexure 'E', which is a Memorandum of Association of a Company known as Christan Service Agency. My attention was then invited to particularly clause No.61 of the said Memorandum of Association. Clause No.61 of the said Memorandum of association reads as follows - 61. Any dispute of difference arising or existing between the Company and any other company, association, society, firm or person including staff and other employees or members past, present and future, relating to the working or the discipline of the company or other affairs shall be referred to under the Indian Arbitration Act of 1940 to the person or persons appointed by the President of the Company whose decision in the matter so referred to shall be accepted as final and binding. 5. Relying on this clause, learned counsel for the petitioner submits that any dispute between a staff and the company is required to be referred to the Arbitrators. The clause 61 no doubt mandates so. However, it has to be borne in mind that this is a Memorandum of Association (MoA) of Company known as Christan Service Agency. Christan Service Agency – the company is not a party to this petition and this agreement relates to the disputes between the employees of the said Company and the Company. It 5 does not make a reference to a dispute between the NCCI and its employees. Therefore, a clause in the Memorandum of Association of a Company which is not respondent in this petition has no relevance and cannot be taken to be a clause directing the matter to be referred to the Arbitrator. The argument, therefore, has no force. 6. The third and the last ground for which the application cannot be said to be maintainable is that the petitioner has not given any notice under Section 11 of the Arbitration and Conciliation Act. Such a notice is absolutely mandatory. Learned counsel for the petitioner submits that the petitioner was left with no time to serve such a notice and therefore non-service of notice should not come in the way of court for appointing a arbitrator. The submission cannot be accepted. The law mandates any party, who wants the arbitrator to be appointed and approach the court for that purpose, to serve notice on the party. The notice having not been served, the application is not itself maintainable. In the circumstances, the application is rejected. No order as to costs. JUDGE. chute 6