Sanjib Banerjee, J.:— The Court: This is a request under Section 11 of the Arbitration and Conciliation Act, 1996 for the constitution of an arbitral tribunal to adjudicate upon the disputes said to have arisen between the parties.
The petitioner was awarded a contract relating to maintenance, repair and other work relating to the flexible power cables and control cables at the Haldia Dock Complex. It is the petitioner's case that the tender documents did not make the petitioner aware that there was an existing set of workmen already in the Haldia Dock Complex which would assert a right to be employed by any new contractor. The petitioner says that the petitioner had engaged the petitioner's own work-force but such work-force was not permitted to commence the work since the existing workers demanded that they be engaged for the work.
By a letter dated June 16, 2007 the petitioner wrote to the respondent informing it of the matter and pleading helplessness since the militant workers did not permit the petitioner to undertake the work contemplated by the contract. Subsequent correspondence was exchanged between the parties from which it appears that the respondent was completely insensitive to the problem that had been referred to by the petitioner. The stand of the respondent was that since it was the petitioner's obligation to discharge the work under the contract, the respondent was not concerned whether the respondent's dock complex was infested with militant workmen who did not allow the contractor to perform the work.
It is evident that substantial disputes arose between the parties. It also appears that following the failure on the part of the respondent to pay heed to the petitioner's entreaties, the petitioner could not undertake the work and the agreement has now been terminated.
The agreement contains a clause relating to settlement of disputes, a subsequent clause providing for amicable settlement and a further clause relating to arbitration. Clause 3.35.1 stipulates that if a dispute of any kind arises between the employer and the contractor in connection with or arising out of the contract or the execution of the work, the matter in dispute should, in the first place, be referred in writing to the Engineer within 30 days with a copy to the other party. The relevant clause is couched in the widest terms.
It is not in dispute that the engineer referred to in clause 3.35.1 is the Manager (P & E) of the Haldia Dock Complex, Operational Building. The letter of June 16, 2007 was issued by the petitioner to such official. No copy of the letter appears to have been marked to any person. The petitioner says that it is such letter of June 16, 2007 which was the reference in writing as contemplated by clause 3.35.1 of the agreement.
The petitioner's submission cannot be accepted. The concerned manager, in this case, wore two hats: one as the immediate representative of the employer qua the contractor; and, as the engineer who was responsible for resolution of the disputes at the first instance in accordance with clause 3.35.1 of the agreement. What the petitioner had done by issuance of the letter of June 16, 2007 was to raise a dispute with the employer. There was no reference in writing to the engineer within the meaning of clause 3.35.1 That the engineer and the employer's representative in dealing with the contractor were the one and the same entity may, possibly, have confused the petitioner.
The subsequent correspondence that the petitioner refers to includes letters of protest and the demands made by the petitioner, both prior and subsequent to the termination of the agreement. Again, such letters have been addressed to the manager invariably in every case as the representative of the employer and not in his position as the person who was responsible to resolve the disputes under clause 3.35.1 of the contract.
There is a subsequent demand for arbitration and the petitioner has carried this request to Court within reasonable time. However, clause 3.35.3 relating to arbitration mandates that the mechanism under 3.35.1 of the agreement should first have been exhausted.
In the present case, it does not appear that the petitioner here resorted to the mechanism contemplated by clause 3.35.1 of the agreement. As such, the petitioner could not have progressed to the stage of invoking clause 3.35.3 whether by making a demand in respect thereof to the employer or the appointing authority or by carrying a request in such regard to the Chief Justice or his delegate under Section 11 of the 1996 Act.
In essence, the petitioner has failed to comply with the precondition to invoking the arbitration clause.
The present request, in such circumstances, cannot be entertained and A.P No. 112 of 2008 is dismissed. This order may not be read to be an adjudication of the merits of the disputes between the parties and it will be open to the petitioner to comply with the distinct stages contemplated by the relevant agreement before invoking the arbitration clause or making a further request under Section 11 of the 1996 Act.
There will be no order as to costs.
Urgent certified photocopies of this order, if applied for, be given to the parties subject to compliance with all requisite formalities.
SANJIB BANERJEE, J.