IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 25TH JULY 2011 / 3RD SRAVANA 1933 WP(C).No. 13237 of 2011(D) -------------------------- PETITIONER: --------------- NIMESH M.K., S/O.KANNAN, AGED 35 YEARS, RESIDING AT MANAKKALKAROT HOUSE, AMBALAMEDU, CLINT ROAD, ERNAKULAM-682303. BY ADV. SRI.C.K.PAVITHRAN SRI.M.VIVEK RESPONDENTS: --------------- 1. THE CHIEF OPERATIONS MANAGER, INDIAN OIL CORPORATION LTD., PANAMPILLY NAGAR P.O. KOCHI-682036. 2. THE CHIEF TERMINAL MANAGER, COCHIN TERMINAL, INDIAN OIL CORPORATION LTD., IRUMPANAM, KOCHI-682309. ADV. SRI.E.K.NANDAKUMAR FOR R1 SRI.A.K.JAYASANKAR NAMBIAR FOR R1 SRI.K.JOHN MATHAI FOR R1 SRI.P.BENNY THOMAS FOR R1 SRI.P.GOPINATH FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 13237/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE WORK ORDER DATED 21.6.2010 EXT.P2 : COPY OF THE NOTICE DATED 7.4.2011 EXT.P3 : COPY OF THE REPLY DATED 19.4.2011 EXT.P4 : COPY OF THE LETTER DATED 25.4.2011 EXT.P5 : COPY OF THE TENDER NO.KESO/OPS/POL/PT-1/2010-2013 ALONG WITH INDUSTRY TRANSPORT DISCIPLINE GUIDELINES. EXT.P6 : COPY OF THE WORK ORDER DATED 21.6.2010 ISSUED TO SRI.BRAINY C.VARGHESE EXT.P7 : COPY OF THE WORK ORDER DATED 21.6.2010 ISSUED BY THE RESPONDENT RESPONDENT'S EXHIBITS: EXT.R1(a) : COPY OF THE LETTER DATED 29.3.2011 FROM HINDUSTAN ORGANIC CHEMICALS LTD. TO THE RESPONDENT CONFIRMING USE OF TANK TRUCK BEARING NO.KL 17C 4145 EXT.R1(b) : COPY OF THE SAID REPORT DATED 6.4.2011 SUBMITTED BY THE COMMITTEE //TRUE COPY// P.A. TO JUDGE vps P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 13237 OF 2011 -------------------------- Dated this the 25th day of July, 2011 J U D G M E N T The petitioner is a transporting contractor who had entered into an agreement with the Indian Oil Corporation. On the allegation that one of the five tank trucks belonging to the petitioner, bearing registration No.KL 17 C 4145 was used to carry Phenol pursuant to a transporting contract entered into by him with the Hindustan Organic Chemicals Ltd, the transporting contract with the petitioner was cancelled and he and the five trucks belonging to him were black listed by Ext.P4 letter dated 25.4.2011. Before the said decision was taken, Ext.P2 notice was issued to the petitioner to which he submitted Ext.P3 reply virtually admitting his fault. Ext.P4 is under challenge on various grounds including the contention that in respect of others who had committed similar acts of malpractice/misconduct only the concerned truck was black listed and not all the trucks and therefore the petitioner has been discriminated against. 2. The respondents have filed a counter affidavit disputing the above facts. They have also inter alia contended that in terms of paragraph 16 of Ext.P5 agreement entered into between the petitioner and the Indian Oil Corporation, all questions, disputes and differences arising under or in relation to the contract shall be referred to the sole arbitration of the Director (Marketing) of the Indian Oil Corporation. Relying on the said provision, it is contended that the dispute raised by the WPC No.13237/2011 2 petitioner is an arbitrable dispute and the arbitrator can go into all the questions raised by the petitioner including his plea that he has been discriminated against. Paragraph 16 of Ext.P5 agreement reads as follows: “ All questions, disputes and differences arising under or in relation to this Agreement shall be referred to the sole arbitration of the Director (Marketing) of the Company. If such Director (Marketing) is unable or willing to act as the sole arbitrator, the matter shall be referred to the sole arbitration of some other officer of the Company by such Director (Marketing) in his place, who is willing to act as such sole arbitrator. It is known to the parties herein that the Arbitrator appointed hereunder is an employee of the Company and may be Shareholder of the Company. The arbitrator to whom the matter is originally referred, whether the Director (Marketing) or officer, as the case may be, on his being transferred or vacating his office or being unable to act, for any reason, the Director (Marketing) shall designate any other person to act as arbitrator in accordance with the terms of the Agreement and such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor. It is also the term of this Agreement that no person other than the Director (Marketing) or the person designated by the Director (Marketing) as aforesaid shall act as arbitrator. The award of the Arbitrator so appointed shall be final, conclusive and binding on all the parties to the Agreement and provisions of the Arbitration & Conciliation Act 1996 or any statutory modification or re-enactment thereof and the Rules made there under and for the time being in force shall apply to the arbitration proceedings under this clause. The venue of the arbitration shall be Patna.” 3. Though the learned counsel for the petitioner contended that WPC No.13237/2011 3 paragraph 16 should have been invoked by the Indian Oil Corporation and the Arbitrator should have been given the freedom to decide whether the contract should be terminated and the petitioner should be black listed, I am of the opinion that the purpose of incorporating paragraph 16 in the agreement is for the purpose of enabling the petitioner and the Indian Oil Corporation to have disputes and differences arising out of the contract resolved by arbitration. The petitioner has thus got an effective and meaningful remedy by way of arbitration. Such being the situation, I am of the opinion that he should exhaust that remedy instead of invoking the jurisdiction of this Court under Article 226 of the Constitution of India. I accordingly decline jurisdiction and dismiss the writ petition leaving open the contentions of both sides and without prejudice to the right of the petitioner to have the dispute resolved in terms of paragraph 16 of Ext.P5 agreement. P.N.RAVINDRAN, (JUDGE) vps