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Dr Vipul Mishra vs M/S Nayati Healthcare And Research Pvt ... on 28 July, 2022

Author: Neena Bansal Krishna

Bench: Neena Bansal Krishna

                          $~43
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +      ARB.P. 492/2022
                                 DR VIPUL MISHRA                                          ..... Petitioner
                                                    Through:     Mr. Sandeep Kapoor, Advocate.

                                                    versus

                                 M/S NAYATI HEALTHCARE AND RESEARCH PVT LTD.
                                                                                     ..... Respondent
                                                    Through:     Mr. Sumant De, Advocate.

                                 CORAM:
                                 HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
                                                    ORDER

% 28.07.2022

1. The present petition has been filed under Section 11(6) read with Section 11(8) of the Arbitration and Conciliation Act, 1996 on behalf of the petitioner seeking appointment of an Arbitrator to adjudicate the disputes between the parties.

2. It is submitted in the petition that the petitioner has worked in respondent's Organization from 07th January, 2016 to 31st March, 2021 in the Retainership position of Senior Consultant and HoD, Department of Critical Care, Pulmonology and Sleep Medicine at Nayati Medicity, Mathura within the terms of the Medical Services Agreement (hereinafter referred to as the "MSA") dated 07th January, 2016. Though, the petitioner was appointed for his services only at Mathura, but he did not hesitate in extending his professional services at hospitals at Agra and Delhi.

3. An Offer Letter dated 16th December, 2015 was given with the Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:04.08.2022 16:55:11 consideration of Rs. 5,00, 000/- per month with entitlement of accommodation and other amenities. The petitioner was also assured monthly payments on or before the 10th of the next calendar month.

4. The petitioner joined his duties on 07th January, 2016 and discharged his duties with diligence, dedication and hard work and developed the Department of Critical Care and Pulmonology and Sleep Medicine from the scratch to high standards. The petitioner was very proactive in the academic programmes of hospital.

5. In recognition of petitioner's devotion to duty and significant contribution to the growth of respondent's hospitals, the monthly retainership amount was increased thrice to Rs. 6,00,000/- per month w.e.f. 01st May, 2017, to Rs. 7,25,000/- w.e.f. 01st October, 2017 and lastly to Rs. 9,25,000/- w.e.f. 01st July, 2019. Simultaneously, the Designation of the petitioner was also elevated to Director, Department of Critical Care, Pulmonlogy and Sleep Medicine from Senior Consultant and HoD, Department of Critical Care, Pulmonology and Sleep Medicine w.e.f. 01st December, 2020.

6. The petitioner has asserted that there was a trend of delayed disbursement of salaries of the doctors and staff, which made it difficult for him to keep up the motivation levels of his team members.

7. The respondent stopped paying the salaries despite repeated requests. Because of the unbearable working conditions with no sign of improvement, the petitioner tendered his formal Resignation Notice dated 22nd February, 2021. The petitioner also made a request for release of his outstanding salaries and dues. He also sought TDS Certificate or Form 16A for his tenure engagement.

8. The Resignation was accepted by the respondent and the Relieving Letter was issued on 31st March, 2021. The petitioner was assured that his full and final payment of outstanding salaries would be paid in the next few days. However, the petitioner's outstanding dues and salaries have not been released despite request.

9. The petitioner sent a Demand Legal Notice dated 21st October, 2021 to the respondent for release of his salaries and dues, amounting to Rs. 1,04,90,000/- or else to pay 18% interest on account of delay.

10. The petitioner then issued a Legal Notice dated 30th November, 2021 invoking Clause 8 of MSA for Arbitration. However, the Arbitrator has not been appointed.

11. A prayer has, therefore, been made that an Arbitrator may be appointed.

12. Issue notice.

13. Learned counsel for the respondents accepts notice.

14. Learned counsel for the respondent has submitted that without prejudice to their claims and defences, the matter may be referred to arbitration and an Arbitrator be appointed to adjudicate the disputes between the parties.

15. Submissions heard.

16. The existence of arbitration Clause No. 8 in MSA has not been disputed by both the parties, which reads as under:

"8. DISPUTE RESOLUTON PROCESS:-

8.1 Disputes Generally - Subject to clause 8.2, any disputes between the parties or in connection with this Agreement may be dealt with under this Clause 8.

8.2 Clinical Matters - Any disputes in connection with a clinical Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:04.08.2022 16:55:11 conduct cannot be dealt with under this Clause 8, but will be subject and dealt with in accordance with the procedures in respect to clinical privileges, conduct and governance under the applicable laws and Hospital Policy, rules and regulations, etc. 8.3 Notification of Dispute - Either party may notify a dispute by written notice to the other party adequately identifying the issue the subject of the dispute.

8.4 Reasonable Efforts - The Consultant and the Company agree to use their reasonable efforts to negotiate in good faith in order to resolve any dispute.

8.5 Convening of Meeting - If the parties are unable to resolve their disputes within fourteen (14) days from the issue of a dispute notice or as such time agreed by the parties in writing, a director of the Company shall as soon as practicable convene a meeting with the Consultant to resolve the disputes.

8.6 Arbitration - If seven (7) days from the convening of the meeting under Clause 8.5, the disputes remains unresolved, the disputes shall be decided in accordance with the arbitration provisions contained in clause 14.3 hereto."

17. In view of the submissions made, the petition is allowed and Mr. O.P. Gupta, District Judge (Retd.), Mobile No. 9910384645, is hereby appointed as the Arbitrator to adjudicate the disputes between the parties.

18. The parties are directed to appear before the learned Arbitrator as and when notified. This is subject to the Arbitrator making necessary disclosure(s) under Section 12(1) of the A&C Act, 1996 and not being ineligible under Section 12(5) of the A&C Act, 1996.

19. Both the parties shall be free to raise their claims/counter-claims before the learned Arbitrator in accordance with law.

20. Both the parties have submitted that there a mediation possibility of settlement between the parties. The Order of Appointment of the Arbitrator is kept in abeyance for a period of six weeks. In the meantime, if the parties Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:04.08.2022 16:55:11 resolve their disputes, an intimation to that effect shall be sent to the learned Arbitrator, failing which the arbitration proceedings shall commence.

21. The petition is disposed of in the above terms.

NEENA BANSAL KRISHNA, J JULY 28, 2022 S.Sharma Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:04.08.2022 16:55:11