Sreeprad Bhiwaniwala v. Grant Thornton Ud Knowledge And Capability Center India Pvt Ltd

OD 2 ORDER SHEET

IN THE HIGH COURT AT CALCUTTA

ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL SIDE AP No. 62 of 2025 SREEPRAD BHIWANIWALA VS GRANT THORNTON US KNOWLEDGE AND CAPABILITY CENTER INDIA PVT. LTD.

BEFORE:

The Hon'ble JUSTICE SHAMPA SARKAR Date 30th June, 2025 Appearance:- Mr. Satadeep Bhattacharyya, Adv.

Ms. Sriparna Mitra, Adv.

Mr. Sayan Banerjee, Adv.

Ms. Sayani Gupta, Adv.

... for petitioner Mr. Suhail Sehgal, Adv,(VC) ... for respondent The Court:- This is an application for appointment of a learned Arbitrator on the basis of the dispute resolution clause, being Clause 16 of the terms and conditions of Employment. The said terms and conditions of employment were set out in Annexure "A" of the appointment letter of the petitioner dated February 27, 2023. The respondent issued the letter. The dispute arose when the petitioner was terminated. The letter of termination was issued on November 22, 2024. The ground for termination was "business reasons".

The petitioner submits that he was appointed as a Senior Manager in Audit, at Grant Thornton. The terms and conditions under Annexure "A" was forwarded to the petitioner along with the appointment letter and the

petitioner was required to sign the same and submit the Annexure to the employer.

Accordingly, the terms and conditions became a binding contract between employer and employee. The terms and conditions provided for resolution of disputes through arbitration. The seat had been selected as Kolkata. The language was `English'.

The case as narrated by the petitioner is that on June 28, 2024, a show cause notice was issued on the basis of certain allegations levelled by another female employee. The petitioner filed a reply. Upon enquiry, a report was submitted on October 22, 2024. The notice of termination was issued on November 22, 2024. The petitioner's specific case is that although the allegation of sexual harassment had not been established, the petitioner has reason to believe that the termination was the outcome of the complaint lodged by another employee and not a simpliciter termination. The petitioner requested the respondent to recall the order of termination. The petitioner called upon the employer by a notice dated January 2, 2025, to refer the dispute to arbitration. The petitioner also nominated a learned Senior Advocate as an Arbitrator. Mr.

Bhattacharyya, learned Counsel for the petitioner submits that although the terms and conditions provided that an employee may be terminated without any notice and without assigning any reasons upon payment of 60 days gross salary, the termination in this case was a reaction or a counter-blast to the proceedings initiated by a co-employee. The termination had adversely affected the reputation of the petitioner and was wrongful.

a forum agreed to by the parties, under clause 16 of the terms and conditions of employment. The terms and conditions is in the nature of a contract between the employer and employee.

Mr. Sehgal, learned Counsel for the respondent, submits that the petitioner's employment is not statutorily protected. Neither Article 311 of the Constitution of India nor any other statute covers the employment. This is a case of private employment. The employer retains the right to terminate the petitioner with or without notice and the terms of employment has been followed. The law is well-settled that, the petitioner does not have any other claim towards the employer. As long as the 60 days gross salary is paid to the petitioner in lieu of the notice, the termination is valid. Reliance is placed on the decisions of:- Emaar India Ltd. Vs. Tarun Aggarwal Projects LLP and Ors., reported in AIR 2022 SC 4678; G4S Security Services (I) Pvt. Ltd. Vs. Dhiraj Negi, reported in Manu/DE/3030/2018; L.M. Khosla Vs.

Thai Airways International Public Company Limited and Ors., reported Manu/DE/3868/2012; SDU Travels Pvt. Ltd. Vs. Vipin Sharma, reported in Manu/De/1242/2017; Pearlite Liners Pvt. Ltd. Vs. Manorama Sirsi, reported in AIR 2004 SC 1373, Hitachi Plant Technologies India Pvt. Ltd. Vs. Sanjib Kumar Jena and Ors., reported in (2019) 194 PLR 94; GE Capital Transportation Finance Services Ltd. Vs. Tarun Bhargava, reported in Manu/DE/1446/2012, decided on 20.3.2012; Vinod Pathak Vs. American Express Bank Ltd., reported in 2015(153) DRJ 172; Lekh Raj Khurana Vs. Union of India reported in AIR 1971 SC 2111; Ghaziabad Development Authority Vs. Union of India & Ors. reported in AIR 2000 SC 2003; Vidya Drolia & Ors. Vs. Durga Trading Corporation & Ors.

697, in support of the contentions that courts had refused to award damages for hurt feelings and anxiety to a wrongfully dismissed employee and confirmed that damages for anguish and vexations caused by breach of contract, could not be awarded in an ordinary commercial contract. Learned Counsel further submits that if the contract of employment expressly provides a termination clause and the said clause is followed by the employer, the employee is not entitled to any other relief, apart from what the terms and conditions in the termination clause provide. Argument is advanced on the principle that the contract of private employment is not similar to public employment and in such case of private employment there is no scope for the applicability of the principles governing administrative law or public law.

The notice invoking arbitration is referred to by Mr. Sehgal in support of the contention that the claim for reinstatement and/or continuation in service and other consequential benefits are not available to the petitioner as he is not governed by any of the statutes which protect the services of either workmen or public servants. Presuming there was a breach by the employer, at best the salary or the pay can be granted to the aggrieved employee. In this case, 60 days gross salary was paid to the petitioner in terms of the termination clause. Thus there is no breach on the part of the employer. Mr. Sehgal further submits that any order referring such nonarbitrable dispute to arbitration, would be forcing a contract of personal wages which is not permissible in law. Dragging the respondent to an unnecessary prolonged litigation which will ultimately result in the dismissal

of petitioner's claim, cannot be the ethos of Section 11 of the Arbitration and Conciliation Act, 1996.

Reliance was placed on another decision of the Hon'ble Apex Court in the matter of Dushyant Janbandhu vs. Hyundai Autoever India Pvt. Ltd. reported in (2024) 12 SCR 492 in support of the contention that the referral Court is well within its jurisdiction to enquire as to whether an arbitration clause can be invoked by a party in a situation of like nature. Mr. Sehgal also relies on the decisions of the Delhi High Court in support of his claim that the referral Court is not a mere post office but can make a preliminary enquiry to satisfy itself that the disputes are ex facie arbitrable. Having considered the rival contentions of the parties, this Court, prima facie, finds that this is a case governed by the terms and conditions of employment, which contains a Dispute Resolution Clause. Parties bound themselves by the said clause.

Adjudication of any dispute shall be done by a learned arbitrator. The petitioner has made out a case that, the termination was a fall out of the enquiry in respect of a complaint of sexual harassment. The recommendation of the enquiry committee also suggests that the employer was given the option to take steps. The ground showed for termination is other "business reasons". This is not in my prima facie, view a termination simpliciter as urged by the Sehgal. The letter of termination contains a lot of compliances to be maintained by the petitioner for a considerable period, even after the termination. Thus in my view, the judgments which have been relied on by Mr. Sehgal will not be applicable at this stage. The learned arbitrator can rule on his own jurisdiction, which includes the arbitrability of the claim made by the petitioner.

Court, the, prima facie, existence of the arbitration clause is sufficient to appoint an Arbitrator. The dispute is alive. The decision of the Delhi High Court will not squarely apply, in this case. In BCC-Monalisha (JV) vs. Container Corporation of India Limited reported in 2023 DHC 6189, the Court came to the finding that the arbitration clause did not cover the dispute raised. In Blue City Indane vs. Indian Oil Corporation Ltd. reported in 2024 RJJD 20076, also a similar finding was arrived at. In Dushyant Janbandhu (supra) the Hon'ble Apex Court set aside the order of the referral Court on the ground that the Payment of Wages Act and the Industrial Dispute Act would bar any further adjudication by an arbitrator. In the other decisions relied on by Mr.

Sehgal, the Apex Court had laid down the law that apart from salary in lieu of notice period, damages for mental agony etc. could not be claimed by the employee. The judgments were delivered by the Apex Court and the stage of the appeal and after the adjudication was complete before the Trial Court and the First Appellate Court. Thus, in view of the existence of an arbitration clause, this Court holds that the dispute should be referred to a sole arbitrator, leaving it open to the respondent to challenge the jurisdiction of the learned Arbitration and/or arbitrability of the dispute at the appropriate stage and if such issues are raised, the same shall be disposed of as preliminary issues.

The observations made hereinabove are only in support of the role of the referral Court to refer the dispute, by giving supremacy to party autonomy and the doctrine of competence-competence. This Court has not gone into the merits.

arbitrator, who shall decide all the issues upon evidence and pass necessary orders.

Under such circumstances, the application is disposed of by appointing Mr. Aritra Basu, learned Advocate (M-9903176497) as the sole arbitrator, to arbitrate upon dispute between the parties. The learned Arbitrator shall comply with the provisions of Section 12 of the Arbitration and Conciliation Act, 1996. The learned Arbitrator shall be at liberty to fix his remuneration as per the Schedule of Arbitration and Conciliation Act, 1996.

Learned Arbitrator is requested to allow virtual hearing to Ms. Sehgal, learned Counsel, who appears from Delhi. (SHAMPA SARKAR, J.) SN/JM/TR