Madras High Court
V.Krishnaveni vs M/S.William Hare (India) Pvt.Limited on 19 July, 2018
Author: Abdul Quddhose
Bench: Abdul Quddhose
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.07.2018
CORAM
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
O.P.No.134 of 2010
1.V.Krishnaveni
2.R.Venkataraman
.. Petitioners
Vs
1.M/s.William Hare (India) pvt.Limited
4th Floor, Sreela Terrace,
105 1st Main Road,
Gandhi Nagar,Adayar,
Chennai 600 020.
2.Mr.S.Jayaraman,
Sole Arbitrator,
"V" Block No.107,
Near Tower,
Anna Nagar,
Chennai-600 040. .. Respondents
Petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 praying to set aside the Award dated 01.03.2007 passed in Arbitration case No.SJ/HARE/2/2006.
For Petitioner : Mr.L.Mouli
For Respondents : Mr.C. Ravi for R1
: R2-Arbitrator
O R D E R
The instant petition has been filed under section 34 of the Arbitration and Conciliation Act challenging the arbitral Award dated 01.03.2007 passed against the petitioner.
2. The brief facts leading to the filing of the instant petition are as follows;
2.1. The 1st petitioner was employed with the 1st respondent as a Technician from 12.11.2003 drawing a monthly salary of Rs.8000/-. After she joined employment, the 1st respondent confirmed her service on 12.6.2004. Thereafter a specialised training was given to the petitioner by the 1st respondent under a Scholarship agreement dated 2.9.2004. The 2nd respondent stood as a guarantor for the due performance of the agreement by the 1st respondent.
2.2. According to the 1st respondent suddenly from 10.3.2005, the 1st petitioner remained absent and then sought one week leave on the ground of illness and thereafter the 1st petitioner sent an undated resignation letter expressing some problems and ill treatment meted out by her colleagues.
2.3 Under the Scholarship agreement dated 2.9.2004, there is a penalty clause that if the petitioner during the first 36 months of the scholarship agreement, terminates her contract, she shall be liable to pay penalty as stipulated under the said penalty clause. Since the petitioner terminated her service by submitting her resignation even prior to the 36 months period, there arose disputes between the parties and the said dispute was referred to arbitration in accordance with the arbitration clause contained under the scholarship agreement dated 2.9.2004.
2.4 The 1st respondent appointed Mr. S. Jayraman, former Additional Registrar of this Court as arbitrator to decide the dispute between the parties on merits.
2.5 The sole arbitrator acted upon the reference and after issuing notice to the parties to dispute, passed an Arbitral Award dated 1.3.2007 directing the petitioner to pay a sum of Rs.1,05,000/- together with interest and costs to the 1st respondent.
2.6 Aggrieved by the Arbitral Award dated 1.3.2007, the instant petition has been filed.
3. Heard Mr.L.Mouli, learned counsel for the petitioner and Mr.S.Ravi learned counsel for the 1st respondent.
4. Learned counsel for the petitioner submitted that the 1st petitioner had to quit employment with the 1st respondent on account of her ill health. Thus according to him, this fact was not considered by the learned Arbitrator under the impugned Award.
5. Learned counsel for the 1st respondent submitted that the petitioner was given specialised training and he drew the attention of this court to the nature of the specialised training. He drew the attention of this Court to clause 1.8 of the scholarship Agreement, which reads as follows;
'1.8. Scholarship Members will enjoy the benefits of further advanced training as herein described:
English Language training for improvement of spoken and written English communications skills. These skills are essential in the modern world and will not only benefit you in the working environment, but in your everyday life also.
Further X-Steel training will be provided for Detailers. We will again arrange for Tekla, the software manufacturers, to fly over one of their trainers from Dubai for a session of group and intensive one to one training in Chennai. X-Steel is the leading package worldwide for 3-D modelling of structures and other components and additional training will enable you to further explore the potential of this demanding and highly complex system.'
6. Then he drew the attention of this Court to the findings of the Arbitrator regarding the specialised training given to the 1st petitioner. He referred to paragraph 13 of the Arbitral Award;
(13) The claimant has specifically pleaded in para 3 of the claim statement that WHIL Scholarship programme was introduced in terms of which the claimant offered to those persons who enrolled as members advanced training in English language spoken and written, X Steel training of Tekla, the software manufacturers based in Dubai, Autocad, Quickcad, management training, enhancement of skills in using any software such as MS Word, Excel and outlook Express exposure in understanding of simple design programme such as WHIL developed joint and design facility within X-Steel and understanding basic connection approached/philosphies etc.etc. The claimant further stated that the scholarship training programme was introduced to the existing employees of the company who wanted to further enhance their technical skills in the working and development of specialized areas of operation. As part of the package, the employees will have to enroll into the programme to receive the said advanced training and the claimant also offered several incentives and benefits and pay related awards to those who enrolled in the said scholarship programme. There is a specific covenant that those employees who enroll will receive loyalty bonus in return for continued uninterrupted service. It is specifically alleged in para 5 of the claim statement that the first respondent agreed to make herself available for further advanced training and also to provide the company with the minimum length of service of 60 months. The first respondent executed WHIL Scholarship agreement dated 2.9.2004 and the second respondent stood as a guarantor. The first respondent started receiving advanced training as per the agreement and she also started receiving several benefits including the incentives, Mr.M.R.Vasudevan, an Associate Director of the claimant company as C.W.1, filed the proof affidavit, wherein similar contentions were reproduced. Though, the first respondent has categorically denied the factum of training in her counter, yet, she has not gone into the witness box to substantiate her contention. The mere fact that the WHIL Scholarship agreement, which contains the details of various training spheres and schedules has been signed by the 1st respondent with her eyes wide open thereby endorsing the factum of training and the fact that the first respondent received the loyalty bonus of 10,276/- for the month of February 2005, as seen from Exhibit C4, all pursuant to and in terms of the WHIL Scholarship agreement in Exhibit C3, ipso facto proves the factum of training and there is absolutely no need for a separate document besides the WHIL Scholarship agreement in Exhibit C.3 to substantiate the factum of training. In other words, the undergoing of training and the consequent payment of loyalty bonus and incentives are all reflected in the WHIL Scholarship agreement itself viz., Exhibit C3 and once the WHIL Scholarship agreement is proved to have been validly executed by the respondents and found to be legal and enforceable, the parties are bound by the terms and conditions enumerated therein. Further CW1 has specifically stated in his cross examination that the company will provide training and the first respondent was given training for a period of 6 months. CW1 further stated that the types of training are language training, technical training and personality development training. In his re-examination, CW1 has specifically stated that the first respondent was given training in a software called X Steel which is one of the rare softwares which is not available in India elsewhere and it is a costly training.'
7. This Court after having perused the Scholarship Agreement as well as after hearing the submissions of the learned counsels appearing on both sides as well as after examining the findings of the arbitrator, is of the considered view that the Arbitrator has considered each and every defence raised by the petitioners with regard to the claim made by the 1st respondent. Having specially trained the 1st petitioner, the 1st respondent would have incurred enormous amount of expenditure which they are entitled to be reimbursed. They have also paid loyalty bonus to the 1st petitioner on account of the specialised training given to her. Further, sufficient opportunity was also given to the petitioner to defend the case before the Arbitrator.
8.For the forgoing reasons, this Court does not find any illegality in the Award passed by the arbitrator and there is also no perversity in the findings of the arbitrator.
9. The Hon'ble Supreme Court in a Catena of decisions starting from Renusagar Power Company Ltd vs. General Electric Company 1994 Supp (1) SCC 644 to the recent Associated Builders Vs DDA (2015) 3 SCC 49 has held only under the following grounds the Arbitrator Award can be challenged under Section 34 of the Arbitration and Conciliation Act:
(a) Procedure contemplated under Arbitration and Conciliation Act was not followed by the Arbitrator.
(b)The Arbitral Award is a non speaking Award.
(c)The Arbitrator has transgressed his jurisdiction.
(d)The Arbitral Award is in conflict with the public policy of India.
(iii)An award would be regarded as conflicting with the public policy of India if:-
(a) it is contrary to the fundamental policy of Indian law, or
(b) it is contrary to the interests of India,
(c) it is contrary to justice or morality,
(d) it is patently illegal, or
(e) it is so perverse, irrational, unfair or unreasonable that it shocks the conscience of the court.
(iv)An award would be liable to be regarded as contrary to the fundamental policy of Indian law, for example, if
(a) it disregards orders passed by superior courts, or the binding effect thereof, or
(b) it is patently violative of statutory provisions, or
(c) it is not in public interest, or
(d) the arbitrator has not adopted a judicial approach, i.e. has not acted in a fair, reasonable and objective approach, or has acted arbitrarily, capriciously or whimsically, or
(e) the arbitrator has failed to draw an inference which, on the face of the facts, ought to have been drawn, or
(f) the arbitrator has drawn an inference, from the facts, which, on the face of it, is unreasonable, or
(g) the principles of natural justice have been violated.
(v)Insofar the patent illegality has to go to the root of the matter. Trivial illegalities are inconsequential.
(vi) Additionally, an award could be set aside if
(a) either party was under some incapacity, or
(b) the arbitration agreement is invalid under the law, Or
(c) the applicant was not given proper notice of appointment of the arbitrator, or of the arbitral proceedings, or was otherwise unable to present his case, or
(d) the award deals with a dispute not submitted to arbitration, or decides issues outside the scope of the dispute submitted to arbitration, or
(e) the composition of the Arbitral Tribunal was not in accordance with the agreement of the parties, or in accordance with Part I of the Act, or
(f) the arbitral procedure was not in accordance with the agreement of the parties, or in accordance with Part I of the Act, or
(g) the award contravenes the Act, or
(h) the award is contrary to the contract between the parties.
(vii) Perversity, as a ground for setting aside an arbitral award,has to be examined on the touchstone of the Wednesburyprinciple of reasonableness. It would include a case in which
(a) the findings, in the award, are based on no evidence, or
(b) the Arbitral Tribunal takes into account something irrelevant to the decision arrived at, or
(c) the Arbitral Tribunal ignores vital evidence in arriving at its decision.
(viii) At the same time,
(a) a decision which is founded on some evidence, which could be relied upon, howsoever compendious, cannot be treated as perverse,
(b) if the view adopted by the arbitrator is a plausible view, it has to pass muster,
(c) neither quantity, nor quality, of evidence is open to re-assessment in judicial review over the award.
(ix)Morality would imply enforceability, of the agreement, given the prevailing mores of the day. Immorality, however, can constitute a ground for interfering with an arbitral award only if it shocks the judicial conscience.
10. The petitioner has not satisfied any of the grounds mentioned above to interfere with the Arbitral Award dated 01.03.2007. This court does not find any merits in the instant petition. Accordingly, the Original Petition is dismissed. No costs.
19.07.2018 msr Speaking Order/non-speaking order Index:yes/No ABDUL QUDDHOSE, J.
msr O.P.No.134 of 2010 19.07.2018