Arbitration

2 months ago

R/S/M,Good evening
kindly tell given below order CR 5221of 2019 DATE 28-05-2024 is in whose favor of petitioner or responent and if this order can submitted in other service matter in which same arbitration sec 8 Application dismiss by Educational Trbunal clause than this order can work vacate stay in other service matter
Thanks

Present: Mr. Sachin Mittal, Advocate for the petitioner.
Mr. Sandeep Kotla, Advocate for the respondent.
1.By way of instant revision petition filed under Article 227 of the Constitution of India, petitioner has moved this Court for setting aside order dated 08.07.2019, Annexure P-4, passed by the learned District Judge Gurugram, whereby petitioner's application for reference of dispute to an Arbitrator under Section 8 of the Arbitration and Conciliation Act 1996, (for short “the Arbitration Act”), was rejected.

2. Counsel for the petitioner submits that the respondent was appointed as a Primary Teacher (PRT) Music, for a few months in September 2005. He was confirmed and a contract of service dated 22.03.2007, Annexure P-2, was entered into between the parties. He submits that the respondent was promoted as TGT on 02.04.2007, and was confirmed a year later. However, the post was discontinued due to insufficient number of students and his service was terminated vide letterdated 25.01.2019 by paying him three months salary in lieu of the notice period. He submits that the respondent challenged the order before theDistrict Judge, Gurugram, who has been designated as an EducationTribunal in terms of notification dated 07.05.2013 issued under thedirections of the Supreme Court in TMA Pai Foundation and others versus
State of Karnataka and others (2002) 8 SCC 481. Counsel submits that as the contract of service contained an arbitration clause, an application under Section 8 of the Arbitration Act was filed, which after contest has been
dismissed vide order impugned herein. While making a reference to the judgment in Pravin Electricals Private Limited Versus Galaxy Infra andEngineering Private Limited (2021) 5 SCC 671, counsel has contended thatthe tribunal has to restrict itself to prima facie examination of the existenceof an arbitration agreement while considering the application under Section8, ibid, and the tribunal has gone wrong in coming to the conclusion that there was no mutual agreement between the parties. It is also his submissionthat the tribunal has erred in placing reliance upon the judgment in M/s SconContracts versus Neena Dhingra 2007 (30) RCR (Civil) 853, which dealtwith a matter where the parties had not entered into a written agreement.

3. Per Contra, learned counsel for the respondent has questioned the maintainability of the petition by inviting the attention of the Court to Section 37 (1) (a) of the Arbitration Act and submits that the instant revision petition is not maintainable. Referring to Section 8 of the Arbitration Act, he has urged that the Education Tribunal is not a “judicial authority” within the purview of the statutory provision as it does not act judicially or exercise a judicial power. Reference has also been made by him to Section 2 (3) of the
Arbitration Act, which provides that the provisions of the Arbitration Act shall not affect any law for the time being enforced by virtue of which certain disputes may not be submitted to arbitration.

4. I have considered the rival submissions of counsel for the parties.

5. It is apposite to notice Section 37 (1) of the Arbitration Act, which is reproduced hereunder:-

“37 (1) Notwithstanding anything contained in any other law for the time being in force, an appeal
shall lie from the following orders (and from no others) to the Court authorized by law to hear appeals from original decrees of the Court passing the order, namely:-
(a) refusing to refer the parties to
arbitration under section 8;
(b) granting or refusing to grant any
measure under section 9;
(c) setting aside or refusing to set aside an
arbitral award under section 34.”

6. Arbitration Act is a special statute. Appeals under the Act can only be entertained by the Courts against the orders specifically mentioned in Section 37, ibid, and from no others. Examining the scheme of the Act, Supreme Court in Chintels India Limited vs. Bhayana Builders Private Limited (2021) 4 SCC 602, has held that insofar as Section 37 (1) (a) is concerned, where a party is referred to arbitration under Section 8, ibid, no appeal lies. This is for the reason that the effect of such order is that the parties must go to arbitration. It being left to the Arbitrator to decide the preliminary points under Section 16 of the Arbitration Act, which will then become subject matter of appeal under Section 37 (2) (a) or the subject matter of grounds to set aside under Section 34 ibid an arbitral award ultimately made. Insofar as an order refusing the parties to arbitration under Section 8 ibid is concerned, it has to be passed on a prima facie examination of the arbitration agreement and such an order is appealable under Section
37 (1) (a) of the Arbitration Act. As the statute specifically provides for the remedy of an appeal against an order rejecting application under Section 8, ibid, instant revision petition is not maintainable.

7. Without examining the legality of the impugned order on merits, instant revision petition is dismissed as not maintainable. However, liberty is granted to the petitioner to take recourse to the remedy available to it in accordance with law.