JUDGMENT :

SHEKHAR B. SARAF, J.

1. The petitioner, Mr. Subir Kumar Mukhopadhyay, resides at Flat nos. 1 and 2, second floor, 28/2 Onkarmal Jetia Road, near Nabanna bus stand, P.S. Shibpur, Howrah-711103.

2. The respondent is a public limited company, Kesoram Industries Limited, having its office at 9/1 R.N. Mukherjee Road, P.S. Hare Street, Kolkata-700001.

Relevant facts

3. The petitioner entered into a written contract of service with Kesoram Industries initially for a period of 1 year for a remuneration of Rs. 5,00,000 (Rupees five lakhs) per month from June 1, 2015 to May 31, 2016. Such time period was later extended from time to time but the terms and condition for the contract remain unchanged, except for the remuneration.

4. The last such extension was granted by Kesoram Industries on April 1, 2019 for the Financial Year 2019-2020 with a consolidated pay of Rs. 7,37,500 (Rupees seven lakhs thirty-seven thousand five hundred) per month. The petitioner concluded his service on July 12, 2019 upon acceptance of his proposal to release him by Kesoram Industries. The release formalities were consequently completed with a promise to remit all the dues including a month’s notice pay separately.

5. The petitioner received his remuneration from 1st June 2015 to 20th April 2019 but the remuneration for the months of May, June and July 2019 has fallen in arrears. Kesoram Industries has deducted TDS on the amount payable to the petitioner as reflected in the Form 26AS. The petitioner also had to deposit a sum of Rs. 2,70,000 in total out of his own funds to deposit a sum of Rs. 2,70,000 for GST.

6. For the months for which the petitioner is yet to receive his pay, the petitioner sent several verbal and written requests through e-mail. Ultimately, the petitioner issued a demand notice on 27th August 2021. The respondent’s representative replied to such letter on 6th August 2021 stating that the respondent company has undergone demerger and the unit in which he was assigned, that is Birla Tyres, has been demerged.

7. Thereafter on 4th February 2022 another letter was sent to the respondent asking for payment for the arrears due under the contract with the intent to initiate arbitral proceedings if the demand is not met. The respondents’ representatives replied on 10th March 2022 denying their liability but did not mention anything about the arbitration clause.

8. Thereafter when the petitioner sought to invoke the arbitration clause, the petitioner found that the sole arbitrator named in the agreement of service was one Mr. Prasun Ghosh who is acting as a legal retainer for Kesoram Industries and also acts as an Advocate on Record in many suits and litigations for Kesoram Industries. With all these facts and circumstances the petitioner again on 24th May 2022 wrote to the respondents’ legal representatives with the proposed name of Mr. Anindya Halder as the arbitrator to which they faced opposition and objection vide letter dated 7th June 2022 and it was communicated to the petitioner that since the companies are now demerged his claims has now shifted to the demerged unit i.e. Birla Tyres.

9. Thereafter, the petitioner has preferred the instant application under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’) for appointment of an arbitrator.

Rival Submissions

10. Mr. Gopal Chandra Ghosh, counsel appearing on behalf of the petitioner has made the following submissions:

(a) The petitioner received his remuneration from June 1, 2015 to April 20, 2019 but the remuneration for the months of May, June and July 2019 has fallen in arrears. Kesoram Industries has deducted TDS on the amount payable to the petitioner as reflected in the Form 26AS.

(b) The petitioner concluded his service on July 12, 2019 upon acceptance of the proposal to be released from Kesoram Industries which was communicated by Mr. Goutam Ganguli. The petitioner hereby completed all the formalities for conclusion of his contract for retaine