Sole arbitrator appointed by the respondent

Querist : Anonymous (Querist) 22 May 2020 This query is : Resolved
Dear Experts,

I was an employee of company X, last year I leaved the company by proper resignation and serving full notice period.
But till date company have not did full and final settlement of my dues like Gratuity and may more, tentative amount of all would be 7 Lacs.
After repeated e-mail communication they are linger on the process.
There was arbitration clause in my service contact. So, I asked them to appoint an Arbitrator, now they have appointed one Sole Arbitrator and given me the address of that Arbitrator and told me to get in contact with Arbitrator further only as Arbitration started.
I have few questions in my mind.

1. How much fee Arbitrator charged from me, and what will be the mode of payment cheque etc., and when I have to pay arbitration fees , at start of hearing or after final judgment?
2. Do I need a Lawyer, or I can fight my case own?
3. Do I Need to sign terms with Arbitrator at start of hearing like oral hearing, written, time period etc.?
4. As I have only Arbitrator address with me, Shall I go to his address directly?
5. As I have a felling that Arbitrator shall me more inclined towards respondent as he appointed him, is there anything on which I can concentrate more while approaching Arbitrator.

Regards

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Guest (Expert) 22 May 2020
Seeking the Guidance of an Advocate Specialized in such matters would be an very good Pre Caution. Discuss with your Local Good Advocate in detail

Raj Kumar Makkad (Expert) 22 May 2020
If everything has to be done by the local Advocates then why to run this site and for what purpose we all devote time here?

This comment is not meant for the author please.

Querist : Anonymous (Querist) 22 May 2020
I will really appreciate if my questions will be answered on this good platform.

Raj Kumar Makkad (Expert) 22 May 2020
1. If there is no mention of the fee to be paid by you in the arbitration clause of your appointment letter or latest letter of your ex. employer intimating you the appointment of the arbitrator then you need not to pay any fee so further question do not arise how and when to pay such fee.

2. It depends upon you, however, permission of the arbitrator shall be required before you appoint any lawyer to represent you in the arbitration proceedings.

3. There is no need to obtain sign on the proposed mode of arbitration, however, arbitrator shall obtain your signautre on the proceedings.

4. Arbitrator is expected to summon you through a notice intimating to appear and take part in the proceeding on a definite day, time and place. Wait for this notice failing which approach him at the given address if you have no other mode of communication.

5. Making suspecion is not a solution. You should defend your case vigorously, effectively and wisely irrespective of thinking of its fate and even if the award is passed against you then also you have further remedy to submit objections against the same.

Querist : Anonymous (Querist) 22 May 2020
Dear Mr.Raj

This is the said clause mentioned in the contract also there is nothing mentioned regarding fee in the latest communication received.

15(a) All disputes and differences of any nature with regard to the XX Ltd. service manual and the interpretation & adjudication of causes and claims respectively shall be referred to the Sole Arbitrator appointed by the Company XX Ltd. The arbitration proceedings shall be conducted in accordance with the provisions of the Arbitration & Conciliation Act, 1996 and statutory modification thereof & rules made thereunder. The award of arbitrator shall be final binding on both the parities. The award of the arbitrator shall be final & binding on every matter arising hereunder. It is further agreed that in spite of the fact that the Sole Arbitrator may be known to any of the Directors or shareholders and that he may have been dealing with the Company or has occasion to deal with any matter of the agreement shall not disqualify him. Even if the Arbitrator may have expressed opinion in similar matter earlier shall not render him disqualified. The venue of the arbitration in shall be ----- place only.

Raj Kumar Makkad (Expert) 22 May 2020
If clause is mentioned in the contract to bear portion of arbitrator fee then there is no requirement to specifically intimate the same clause. Though the mount of the fee is required to be told to you which stands settled. The mode of payment depends upon arbitrator and you.

Querist : Anonymous (Querist) 22 May 2020
NO there is no any such clause mentioned throughout the contract to bear any fee or portion of fee,
It means if arbitrator ask for it , we can provide reference of the service contract

Guest (Expert) 22 May 2020
This Post is not related to the Query Or the Auuthor --- We provide only the Suggestion or guidance to the Querist here and only Local Good Advocate who could set the exact directions to the Querist precisely would be the Best Guide.. Here we could only advise basing on the query only.

Rajendra K Goyal (Expert) 22 May 2020
You said:

1. How much fee Arbitrator charged from me, and what will be the mode of payment cheque etc., and when I have to pay arbitration fees , at start of hearing or after final judgment?

Reply:

If the letter received from appointing authority / management / respondent does not mention the amount, mode of payment, who is to pay, wait for the letter from arbitrator. Arbitrator fee is based on schedule in Arbitration Act. High Court / arbitration tribunal can fix fees otherwise.
As per schedule IV fees chargeable for claim between 5 to 20 lacs is Rs, 45,000 plus 3.5 per cent of the claim amount over and above Rs. 5,00,000
Supreme Court recently in the matter of National Highways Authority of India and Ors. v. Gayatri Jhansi Roadways Limited and Ors. (MANU/SC/0958/2019, 2019 SCC OnLine SC 906) settled the position on the issue regarding arbitrator’s fee in cases where the parties had agreed to a schedule of fees in the arbitration agreement. It held that the Fourth Schedule of the Arbitration and Conciliation Act, 1996 (Act) is not mandatory in determining the fees where the fees has been fixed by agreement between the parties and overruled the judgment of the Delhi High Court.

Rajendra K Goyal (Expert) 22 May 2020
You said:

2. Do I need a Lawyer, or I can fight my case own?

Reply:

If you wish you may proceed to present your case. It is better to take help of lawyer after permission from Arbitrator.

You said:

3. Do I Need to sign terms with Arbitrator at start of hearing like oral hearing, written, time period etc.?

Reply:

Proceedings are as per arbitration act, Arbitrator may ask you to sign the proceedings.

Rajendra K Goyal (Expert) 22 May 2020
You said:

4. As I have only Arbitrator address with me, Shall I go to his address directly?

Reply:

You may after permission or wait for the letter from arbitrator.

You said:

5. As I have a felling that Arbitrator shall me more inclined towards respondent as he appointed him, is there anything on which I can concentrate more while approaching Arbitrator.

Reply:

Arbitrator appointed on your request, believe in him till there exist solid reasons to believe otherwise. Bring on record all documents / pleadings favoring you.

Guest (Expert) 22 May 2020
March 30th --2016 Times of India had elaborately Published about the Corruptions, Cheating and Fraud activities of this makkad boy and Now the " Devil is Chanting Vedas " here.

Raj Kumar Makkad (Expert) 22 May 2020
Obviously, you can refer to your contract if arbitration demands the fee from you, however, it shall be better to bear this small amount for the sake of your big issue pending before him.

Rajendra K Goyal (Expert) 23 May 2020
You should send clear e-mail to your Company that they should bear the expenses of arbitration proceedings. If they do not agree, pray arbitrator to include his fees in the award amount.

P. Venu (Expert) 24 May 2020
In my understanding, it was unwise on your part to seek arbitration. The better option would have been to seek statutory remedies.

Raj Kumar Makkad (Expert) 24 May 2020
@ P. Venu Sir

The clause of the arbitration was part of the service contract so there was no option with the author to deny the appointment at this stage but to abide by the terms agreed upon.

Rajendra K Goyal (Expert) 24 May 2020
At this stage Arbitrator has been appointed, present your case effectively for favorable award.

P. Venu (Expert) 24 May 2020
The arbitrator in such matters regarding employment conditions act more or like kangaroo court. This is confirmed by the condition in the arbitration clause itself which enables the company to appoint their own man. It is impossible that such persons could be beyond bias,

Moreover, the arbitration clause only takes care of disputes related service manual of the employer.. However, major issue , as per the facts posted, is gratuity. This aspect is governed by statutory provisions which is beyond the reach of the arbitration proceedings.

Raj Kumar Makkad (Expert) 24 May 2020
I do agree with the expereinced advice of expert P. Venu. Generally arbitrators serve the purpose of their appointers but even then you have no other option but to put your case effectively and vigorously.

P. Venu (Expert) 25 May 2020
Perhaps, it would have been better had you sought suggestion before succumbing to arbitration. Yes, the employer could have relied on the arbitration clause. But the question is, whether such unilateral and arbitrary conditions as to appointment of the arbitrator is permissible? Does not such a condition make the arbitration clause void? It is high time that someone took up the issue and got the legal position ascertained from the Court.

Anyhow, it is my considered opinion that the dispute as to gratuity is not within the jurisdiction of the arbitrator.

Querist : Anonymous (Querist) 25 May 2020
Dear P.Venu Sir ,

Not only Gratuity , there are 3 more components company need to pay after serving full notice period and leaving company as per the contract conditions.That amount is near about 5 Lac + Gratuity .

P. Venu (Expert) 25 May 2020
But the question is , whether all those issues are within the jurisdiction of the arbitrator? To my knowledge, gratuity is not.

Guest (Expert) 25 May 2020
Under S.34 of the Arbitration Act 1996 the Learned Counsel / Advocate could represent in Arbitrary Proceedings. You could seek the Services of a Learned Advocate at your place to represent you or accompany you and represent in the Arbitration so that it would add an merit and there would be no One Sided decisions ( Note : This decision is up to you to decide )

Raj Kumar Makkad (Expert) 25 May 2020
As the arbitration clause has already been inserted in the Service Agreement hence arbitrator can take every dispute arising out of the said agreement may it be gratuity or any other component of the service/dues etc.

Rajendra K Goyal (Expert) 26 May 2020
As advised the author should try his best to present his claim before the arbitrator with full particulars and proofs.Advice of some expert lawyer may be of use.

Raj Kumar Makkad (Expert) 26 May 2020
Arbitration award is required to be made a court verdict so even if the same is passed in favour of the employer then you shall have you a right to file your objections against said award after receipt of the court notice.

Querist : Anonymous (Querist) 16 July 2020
Dear Experts ,

Thanks for answering my questions.
I consulted to local Lawyer , He also suggested that I shall demand Gratuity using issuing of Form I , So I send application to my employer using form I .

For other things like Deff. Salary + other Funds I shall file Statement of claim in front of Arbitrator.

My questing :
If company refuses to pay my Gratuity the where to file case , My company Headquarter is in Delhi and I was posted in their Mohali Branch.