9911796707
TMI Blog2015 (7) TMI 1011X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision for arbitration contained in the "solutions programme" as a part of the terms of her employment with the respondent No.2 remains wholly unsubstantiated. Not only the employment contract signed by the petitioner does not contain any specific clause of arbitration or makes the provision for arbitration contained in the "solutions programme" applicable to her employment, the clause providing for exclusive jurisdiction of the courts in Bombay specifically negate the claim of the existence of an arbitration clause in the contract of employment of the petitioner. Under Section 7 of the 1996 Act the parties to an arbitration agreement must agree to submit their disputes to arbitration. What is contemplated under the "solutions programme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king the arbitration mechanism under the solutions programme and claiming compensation against harassment and gender discrimination that she claimed to have suffered during the course of her employment and even after her resignation. While it will not be necessary to go into the detailed facts and circumstances in which the grievances of the petitioner came to be resurrected after her resignation, suffice it will be to notice that an SMS message received around this time by the petitioner from one Mr. Adil Malia, Vice-President, Human Resources of the respondent No.2 company, apparently, had triggered off the aforesaid response of the petitioner. The demand for arbitration made by the petitioner was refused by the respondent on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport from time to time and it was in the 3rd annual report submitted on 01.12.2004 that of the various problem resolution methods, the following were also incorporated:- 4) Mediation- this involves a neutral third party outside the Company and is available only for resolution of legal disputes, such as discrimination or harassment. 5) Arbitration - If mediation fails to resolve the legal dispute to the employee's satisfaction, arbitration is available. This requires both parties to explain their sides to a trained arbitrator, usually an attorney or judge. 5. This, in essence is the solutions programme on which the petitioner has based her claim. According to the petitioner the solutions programme is applicable to all em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt agreement dated 20.09.1995. It is further contended that by an amendment of the petitioner's employment agreement made on 05.07.1996 a provision was inserted to the following effect:- In case of any dispute the jurisdiction to entertain and try such dispute shall vest exclusively in a court in Bombay . 7. The respondents have further contended that the solutions programme contemplated arbitration in the United States of America under the Federal Arbitration Act and incorporates the National Rules for the resolution of employment disputes of the American Arbitration Association (AAA). Therefore, according to the respondents, even assuming that the solutions programme is applicable to the petitioner, the specific reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction under Section 11(6) of the 1996 Act. The attempt of the petitioner to bring in the provision for arbitration contained in the solutions programme as a part of the terms of her employment with the respondent No.2 remains wholly unsubstantiated. Not only the employment contract signed by the petitioner does not contain any specific clause of arbitration or makes the provision for arbitration contained in the solutions programme applicable to her employment, the clause providing for exclusive jurisdiction of the courts in Bombay specifically negate the claim of the existence of an arbitration clause in the contract of employment of the petitioner. There is no specific incorporation of the provisions for arbitration contained in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of the arbitrator. The same is not to be found in the solutions programme which leaves the employee with an option to accept or reject the decision of the arbitrator. 9. For the aforesaid reasons, we are of the view that the petitioner is not entitled to invoke this Court's jurisdiction under Section 11(6) of the 1996 Act. In view of the aforesaid conclusion, it will not be necessary for this Court to go into certain other issues that have been raised by the contesting parties, namely, whether the petitioner's claim is time barred and whether the same has been instituted with oblique/collateral motives. 10. In view of the foregoing discussions, the application filed by the petitioner has to fail. It is accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
