Bombay High Court
Ajay Vijay VishwakarmaversusHalliburton India Operations Pvt Ltd
- Decided
- Disposal
- DISPOSED OFF
Holding
The Court held that a prima facie arbitration agreement exists between the parties, justifying the appointment of a sole arbitrator.
Summary
The applicant, a former employee of Halliburton Offshore Services Inc., was transferred to Halliburton India Operations Pvt. Ltd. (HIOPL) and later terminated. He invoked the arbitration clause in his 18 March 2019 appointment letter, alleging wrongful termination. The respondent argued that the appointment letter was with a foreign entity and that no arbitration agreement existed with HIOPL. The court examined the transfer letter, the respondent’s own statement that the employment was governed by the 18 March 2019 appointment letter, and the Supreme Court’s Glencore decision on inferred arbitration agreements. It held that, on a prima facie basis, the arbitration clause was incorporated into the employment relationship with HIOPL despite the original employer being a foreign entity. Consequently, the court appointed a sole arbitrator to adjudicate the dispute.
Issues considered
- Whether a prima facie arbitration agreement exists between the applicant and Halliburton India Operations Pvt. Ltd. despite the original appointment letter being issued by Halliburton Offshore Services Inc.
- Whether the transfer of employment and the respondent’s statement that the employment is governed by the 18 March 2019 appointment letter bind the respondent to the arbitration clause.
- Whether the mistake in the date of the appointment letter defeats the existence of an arbitration agreement.
- Whether the arbitration clause is enforceable under the Arbitration and Conciliation Act, 1996.
Legislation cited
- Arbitration and Conciliation Act, 1996 — s. 11, 11(6), 11(8), 12(1), 7(4)(b), 7(4)(c), 7(5)
Subjects
- Arbitration agreement
- Transfer of employment
- Appointment letter
- Section 11 Arbitration Act
- Prima facie
- Halliburton
- Wrongful termination
- Arbitration clause
Judgment
arbap348-2026-J.doc
Sayali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION APPLICATION NO.348 OF 2026
Ajay Vijay Vishwakarma … Applicant
Vs.
Hallinurton India Operations Pvt. Ltd. … Respondent
SAYALI Mr. Vikram Garewal with Mr. Kiran Mohite, and Ms.
DEEPAK
UPASANI Deepika Mule for the Applicant.
Digitally signed by
SAYALI DEEPAK
UPASANI Mr. Ativ Patel with Mr. Harshad R. Vyas i/by AVP
Date: 2026.09.21
11:39:31 +0530 Partners, for the Respondent.
CORAM : AMIT BORKAR, J.
RESERVED ON : SEPTEMBER 17, 2026.
PRONOUNCED ON : SEPTEMBER 21, 2026
JUDGMENT:
1. This Application is filed by the Applicants seeking
appointment of an Arbitrator for deciding the disputes and
differences which have arisen under the Arbitration Agreement
dated 18 March 2019. The Application is filed under Section 11(6)
of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”).
The Applicants seek appointment of a Sole Arbitrator by this Court
on the ground that the Respondent has failed to take the required
steps and has refused to agree for appointment of a Sole Arbitrator
in the manner stated hereafter.
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2. The Applicant was working as an employee with the
Respondent company. The Applicant had joined the Respondent’s
group company, Halliburton Offshore Services Inc. (“HOSI”), on 11
April 2011. Thereafter, his services were transferred from HOSI to
the Respondent company, Halliburton India Operations Pvt. Ltd.
(“HIOPL”), with effect from 1 February 2020. According to the
Applicant, the Transfer Letter and the email dated 5 March 2020
clearly stated that the terms and conditions of his employment
would be governed by the Appointment Letter dated 18 March
2019. The said Appointment Letter contains an arbitration clause.
In April 2025, the Applicant was required to approach the Human
Resources Department in relation to disciplinary action against his
subordinate, Ms. Nikshita Neelakshi Barthakur, on account of
alleged performance issues and misconduct.
3. Thereafter, on 10 June 2025, the Applicant again reported to
the Human Resources Department regarding the alleged unhealthy
atmosphere at the workplace and threats which, according to him,
were being given by the said subordinate. In response to the
disciplinary action, Ms. Nikshita Neelakshi Barthakur resigned by
email dated 18 June 2025. Her resignation was accepted by the
Applicant. According to the Applicant, instead of considering his
complaints, the Respondent took a retaliatory step and started an
investigation against him on the basis of a complaint allegedly
made by the said subordinate and her associates. By email dated
30 June 2025, the Respondent placed the Applicant on leave by
describing the same as a “neutral administrative procedure” and
“not a disciplinary action”.
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4. The Applicant states that, to his shock, he was informed
about his termination with immediate effect during a WhatsApp
conference call held on 28 July 2025. The reason stated for such
termination was “violation of Company Policy/Ruler (COBC &
including Harassment)”. Thereafter, by letter dated 14 August
2025, the Applicant requested the Respondent to reconsider its
decision and to correct the alleged injustice caused to him by his
wrongful termination. He requested the Respondent to resolve the
dispute amicably. However, by the Advocate’s letter dated 11
September 2025, the Respondent refused to reconsider the
termination decision and refused the claims made by the Applicant
in his earlier letter.
5. The Applicant, by his letter dated 22 September 2025,
denied each and every allegation, statement, submission and
contention made by the Respondent in its letter. According to the
Applicant, considering the circumstances, the alleged illegal
termination and the refusal of the Respondent to settle the dispute,
he had no other option but to invoke the arbitration clause stated
to be Clause 34 of the Appointment Letter dated 4 April 2022. The
Applicant sent various emails requesting the Respondent to
provide the arbitration agreement and other relevant documents.
However, according to the Applicant, the Respondent has not
supplied those documents till date.
6. Thereafter, through his Advocate, the Applicant issued a
corrigendum dated 21 November 2025 correcting the mistake
committed by him. According to the Applicant, except for the
mistake regarding the date of the appointment agreement, the
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contents of the earlier letters were not withdrawn. The Respondent
has not replied to those letters till date. The Applicant had earlier
filed Arbitration Application No. 8 of 2026, which was
subsequently withdrawn with liberty to file a fresh application. It is
in these circumstances that the present Arbitration Application has
been filed.
7. Mr. Garewal, learned Advocate appearing for the Applicant,
submitted that the Applicant’s services were transferred from HOSI
to the Respondent company, Halliburton India Operations Pvt. Ltd.
(“HIOPL”), with effect from 1 February 2020. He submitted that
the Transfer Letter dated 1 February 2020 and the email dated 5
March 2020 clearly stated that the terms and conditions of the
Applicant’s employment would be governed by the Appointment
Letter dated 18 March 2019, which contains an arbitration clause.
He submitted that even in the reply dated 11 September 2025, the
Respondent, through its Advocate, had stated that the Applicant’s
employment with the Respondent was “governed strictly in
accordance with the terms of the appointment letter dated 18
March 2019”. According to the Applicant the Appointment Letter
dated 18 March 2019 is a valid, existing and binding contract
between the parties. The Applicant submitted that after his
transfer, his salary was being paid by the Respondent company and
he had no concern with HOSI. According to him, only the terms
and conditions of his employment were governed by the
Appointment Letter dated 18 March 2019.
8. He drew my attention to the notice issued by the Respondent
to the Advocate for the Applicant. He submitted that paragraph 3
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of the said notice states that the service conditions of the Applicant
are governed by the terms of the appointment letter dated 18
March 2019. He pointed out that, in the last paragraph of the
notice, it is stated that if the Applicant chooses to invoke the
arbitration clause, the Respondent would take the necessary action
before the Arbitral Tribunal. He submitted that although the initial
notice invoking arbitration mentioned Clause 34 of the
appointment agreement dated 24 April 2022, the Applicant
subsequently realised the mistake and issued a corrigendum. By
the corrigendum, it was clarified that the appointment agreement
had been wrongly mentioned as being dated 4 April 2022, whereas
the correct appointment agreement governing the Applicant’s
employment and containing the arbitration clause was dated 18
March 2019. He therefore submitted that the Applicant has made
out a case for appointment of an Arbitrator.
9. Per contra, Mr. Ativ Patel, learned Advocate appearing for the
Respondent, drew my attention to the agreement dated 18 March
2019 and submitted that the said agreement was admittedly
entered into with a foreign entity of the Respondent and not with
the Respondent. According to him, the Respondent is the Indian
entity and there is no agreement between the Applicant and the
Respondent containing an arbitration clause. He drew my
attention to paragraph 14 of the Petition and submitted that the
earlier invocation of arbitration was for appointment of an
Arbitrator in relation to the agreement dated 4 April 2022. He
submitted that thereafter the Applicant filed Arbitration
Application No. 8 of 2026. However, since the Applicant did not
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have the Transfer Letter, he relied upon a sample agreement
containing an arbitration clause. The Applicant thereafter
withdrew Arbitration Application No. 8 of 2026 with liberty to file
a fresh application. Mr. Patel therefore submitted that, in the
absence of any arbitration agreement between the Applicant and
the Respondent, no Arbitrator can be appointed, since there is no
arbitration clause binding the parties.
REASONS AND FINDINGS:
10. I have considered the submissions made by Mr. Garewal,
learned Advocate for the Applicant, and Mr. Ativ Patel, learned
Advocate for the Respondent.
11. The first question which is required to be considered is
whether, at least prima facie, there is an arbitration agreement
between the Applicant and the Respondent. The main submission
of the Respondent is that the Appointment Letter dated 18 March
2019 was issued by Halliburton Offshore Services Inc. and not by
the Respondent, namely Halliburton India Operations Pvt. Ltd.
According to the Respondent the arbitration clause contained in
that Appointment Letter cannot be made applicable against the
Respondent.
12. There is no dispute that the Appointment Letter dated 18
March 2019 was issued to the Applicant by Halliburton Offshore
Services Inc. The Applicant was appointed as Manager, Real Estate
Services under the said letter. The said Appointment Letter
contains various terms and conditions concerning the Applicant's
employment. Clause 37 of the Appointment Letter contains an
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arbitration agreement. It provides that disputes between the
parties arising out of or relating to the agreement or its breach
would be decided by arbitration. It provides that the arbitration
would be governed by the Arbitration and Conciliation Act, 1996
and the place of arbitration would be Mumbai, India. It provides
for appointment of three arbitrators.
13. Therefore, as far as the Appointment Letter dated 18 March
2019 is concerned, there is no difficulty in finding that it contains
an arbitration agreement. The question which is required to be
considered is whether, after the Applicant's employment was
transferred from Halliburton Offshore Services Inc. to the
Respondent, the Respondent became bound by the arbitration
agreement contained in the said Appointment Letter. In this
connection, the Transfer of Employment dated 1 February 2020
becomes important. The said document is issued on the letterhead
of Halliburton India Operations Private Limited. It records that the
Applicant's employment with HOSI was terminated with effect
from 31 January 2020 and, at the same time, HIOPL offered
employment to the Applicant with effect from 1 February 2020. It
records that there would be no period of unemployment and,
importantly, that the employment offered by HIOPL was “on terms
and conditions not less favorable to those applicable to you in your
employment with HOSI”. It is stated that the Applicant would
receive the “same salary and service related benefits”. The
Applicant has signed the said document.
14. Therefore, to this limited extent, the submission of the
Respondent that the original Appointment Letter dated 18 March
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2019 was between the Applicant and HOSI is correct. However,
that fact does not finish the matter. It is necessary to see whether
the terms of the said Appointment Letter were continued and
accepted by the Respondent when the Applicant joined the
Respondent from 1 February 2020.
15. On this issue, there is material placed by the Respondent
which is important. The reply dated 11 September 2025 issued
through the Respondent's Advocate states in paragraph 3:
“Your Client was originally employed by Halliburton
Offshore Services Inc., a company within the Halliburton
group and was subsequently his services were transferred on
01.02.2020 to our Client and your Client's employment with
our Client is governed strictly in accordance with the terms
of the appointment letter dated 18.03.2019.”
16. This is not a statement made by the Applicant. It is a
statement made on behalf of the Respondent. The Respondent has
stated that after the transfer on 1 February 2020, the Applicant's
employment with the Respondent was “governed strictly in
accordance with the terms of the appointment letter dated
18.03.2019”. This reply is part of the material before the Court.
The words used by the Respondent in its own letter are therefore
important. The Respondent has not stated that only the salary or
only the service benefits under the Appointment Letter were
continued. What it has stated is that the Applicant's employment
with the Respondent was governed “strictly in accordance with the
terms of the appointment letter dated 18.03.2019”. The
Appointment Letter contains various conditions of employment. It
contains Clause 37 relating to arbitration.
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17. It is true that the Respondent now submits that there was no
arbitration agreement between the Applicant and the Respondent.
But this submission has to be considered along with the
Respondent's own statement dated 11 September 2025. At this
stage, the statement made by the Respondent that the Applicant's
employment with it was governed strictly by the terms of the
Appointment Letter dated 18 March 2019 cannot simply be
ignored. At this stage, the Court is not required to decide whether
the Applicant will succeed in all his claims before the Arbitral
Tribunal. The present proceedings are under Section 11 of the
Arbitration and Conciliation Act. The question which is required to
be considered at this stage is whether there is, prima facie, an
arbitration agreement between the parties.
18. The judgment of the Supreme Court in Glencore
International AG v. Shree Ganesh Metals and Another, 2 025 SCC
OnLine SC 1815 is relevant for considering the principle which is
required to be applied. In paragraph 19, the Supreme Court
considered a case where one party had not signed the contract
containing the arbitration clause. The Supreme Court held:
“19. We are of the considered opinion that it was not
necessary for the appellant to fall back upon the contract of
2012 in the light of the admitted facts that demonstrated, in
no uncertain terms, that the parties duly accepted and acted
upon Contract No. 061-16-12115-S dated 11.03.2016. There
is no denying the legal proposition that an arbitration
agreement can be inferred even from an exchange of letters,
including communication through electronic means, which
provide a record of the agreement. The mere fact that
Contract No. 061-16-12115-S was not signed by respondent
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No. 1 would not obviate from this principle when the
conduct of the parties inance of the said contract, clearly
manifested respondent No. 1's acceptance of the terms and
conditions contained therein, which would include the
arbitration agreement in clause 32.2 thereof.”
19. From the above observation, the principle which appears is
that the Court has to look at the substance of the matter and the
documents and conduct of the parties. Merely because a particular
document containing the arbitration clause has not been signed, it
does not in every case mean that there is no arbitration agreement.
The existence of the agreement can be gathered from the
correspondence and conduct of the parties, where the material
shows that the concerned terms were accepted.
20. The facts which were considered by the Supreme Court in
Glencore International AG are useful for considering this issue. The
Supreme Court did not look at only one document separately. It
considered the dealings between the parties as a whole. The
contract was acted upon. Goods were supplied. Invoices were
raised referring to the contract. Letters of Credit were furnished
with reference to the same contract. On considering all these facts
together, the Supreme Court found that the contract, including the
arbitration clause contained in it, had been accepted by the
parties. In paragraph 21 of the said judgment, the Supreme Court
observed:
“21. The feeble plea of respondent No. 1 that this contract
number was referred to in the context of the earlier email
correspondence does not merit consideration as that contract
number came into existence only after the exchange of email
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correspondence on 10.03.2016 and 11.03.2016. It is
significant to note that even in the course of this email
correspondence, respondent No. 1 indicated its concurrence
with the terms and conditions proposed by the appellant in
its email dated 10.03.2016 by way of its reply email dated
11.03.2016, wherein it suggested only one modification, i.e.,
with regard to the provisional price being on the basis of the
average of the last 5 LME days instead of the last 10 LME
days, as proposed by the appellant. It was pursuant to such
confirmation by respondent No. 1 that the appellant thanked
it for the business confirmation and promised to revert with
the contract and proforma. Admittedly, Contract No. 061-16-
12115-S, signed by the appellant, reflected the modified
provisional pricing, as requested by respondent No. 1, and
stated that the provisional price would be the average of the
last 5 LME days., pursuant to the said contract, respondent
No. 1 furnished two Standby Letters of Credit and thereafter
lifted 2,000 Metric Tons of zinc metal. Such actions on its
part clearly demonstrated due and complete acceptance of
the said contract. Therefore, it cannot blithely bank upon its
own failure to sign the said contract to wriggle out of the
terms and conditions mentioned therein.”
21. The facts in Glencore International AG and the facts of the
present case are not exactly similar. In that case, the Supreme
Court considered the conduct of the parties after the
correspondence and the performance of the contract. In the
present case, the Applicant relies upon the actual Transfer of
Employment and, more importantly, upon the later written
statement made by the Respondent that the Applicant's
employment with the Respondent was governed by the
Appointment Letter dated 18 March 2019.
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22. The Respondent has submitted that the Transfer Letter does
not contain any arbitration clause. This submission cannot decide
the issue. What is required to be seen is whether the Transfer
Letter, when read along with the Appointment Letter and the later
statement of the Respondent dated 11 September 2025, shows that
the earlier terms of the Appointment Letter were accepted or
continued by the Respondent.
23. The Transfer Letter records that the Applicant's employment
with HOSI was terminated on 31 January 2020 and that HIOPL at
the same time offered employment to him from 1 February 2020.
It states that the terms and conditions of the new employment
would be “not less favorable” than those applicable to the
Applicant in his employment with HOSI. It states that the
Applicant would receive the same salary and service related
benefits. Therefore, the Transfer Letter cannot be understood as if
the earlier employment and its terms had no connection with the
new employment. The Transfer Letter refers to the terms and
conditions of the earlier employment and states that the new
employment would be on terms and conditions not less favourable.
After this, the Respondent's letter dated 11 September 2025 states
that the Applicant's employment with HIOPL was “governed
strictly in accordance with the terms of the appointment letter
dated 18.03.2019”.
24. There is one more aspect which is required to be seen.
Clause 37 of the Appointment Letter is not a separate document
which the Applicant is now trying to introduce for the first time. It
forms part of the same Appointment Letter. According to the
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Respondent's own written statement, the terms of that
Appointment Letter governed the Applicant's employment with the
Respondent. The arbitration clause is one of those terms.
Therefore, when the Respondent states that the employment was
“governed strictly” by that Appointment Letter, prima facie this
would include the term contained in Clause 37.
25. The submission of Mr. Patel that the Appointment Letter was
with a foreign entity is therefore not sufficient, at this stage, to
reject the Application. The identity of the original employer is
relevant. It cannot be ignored. But the Court has to see what
happened thereafter. The Applicant was transferred to HIOPL.
HIOPL issued the Transfer of Employment. The Applicant accepted
the transfer. Thereafter, the Respondent stated that the Applicant's
employment was governed by the Appointment Letter dated 18
March 2019. These documents have come from the parties
themselves and therefore have to be considered.
26. The Respondent has relied upon the fact that, while invoking
arbitration earlier, the Applicant referred to an appointment
agreement dated 4 April 2022. According to the Respondent, this
shows that even the Applicant was not clear about the document
containing the arbitration clause. This submission has been
considered. There was a mistake in the earlier invocation. The
Applicant himself accepts that the date of the Appointment Letter
was wrongly mentioned. Thereafter, the Applicant issued a
corrigendum dated 21 November 2025. His case is that the
mistake was only regarding the date and that the substance of the
earlier letters was not withdrawn. Thereafter, Arbitration
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Application No. 8 of 2026 was withdrawn with liberty to file a
fresh application and the present Application was filed. This
mistake cannot be treated as irrelevant. It does show that the
Applicant had initially mentioned an incorrect date of the
appointment agreement. But the question is whether such mistake
in the date is sufficient to destroy the arbitration agreement which
is otherwise relied upon. On the material before the Court, I do not
find that the mistake has such effect.
27. The Applicant has produced the Appointment Letter dated
18 March 2019 containing Clause 37. He has produced the
Transfer of Employment dated 1 February 2020 and the
Respondent's own reply dated 11 September 2025, wherein it is
expressly stated that the Applicant's employment with the
Respondent was governed strictly by the Appointment Letter dated
18 March 2019. Therefore, the correct document is before the
Court. The earlier wrong date cannot remove the arbitration clause
contained in the Appointment Letter which the Respondent
subsequently referred to as governing the Applicant's employment.
28. The Supreme Court in Glencore International AG considered
the intention of the parties. In paragraph 27, after referring to
Govind Rubber Limited v. Louis Dreyfus Commodities Asia Private
Limited, the Supreme Court reproduced the following:
“16. On reading the provisions it can safely be concluded
that an arbitration agreement even though in writing need
not be signed by the parties if the record of agreement is
provided by exchange of letters, telex, telegrams or other
means of telecommunication. Section 7(4)(c) provides that
there can be an arbitration agreement in the exchange of
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statements of claims and defence in which the existence of
the agreement is alleged by one party and not denied by the
other. If it can be prima facie shown that the parties are at ad
idem, then the mere fact of one party not signing the
agreement cannot absolve him from the liability under the
agreement. In the present day of e-commerce, in cases of
internet purchases, tele purchases, ticket booking on internet
and in standard forms of contract, terms and conditions are
agreed upon. In such agreements, if the identity of the
parties is established, and there is a record of agreement it
becomes an arbitration agreement if there is an arbitration
clause showing ad idem between the parties. Therefore,
signature is not a formal requirement under Section 7(4)(b)
or 7(4)(c) or under Section 7(5) of the Act.
………..
23. It is clear that for construing an arbitration agreement,
the intention of the parties must be looked into. The
materials on record which have been discussed hereinabove
make it very clear that the appellant was prima facie acting
pursuant to the sale contract issued by the respondent. So, it
is not very material whether it was signed by the second
respondent or not.”
29. The above principle has to be applied carefully. It does not
mean that merely because a person relies upon a document
containing an arbitration clause, an Arbitrator has to be appointed
against another person who had never accepted such document or
such clause. There has to be some material showing acceptance of
the arbitration agreement, either directly or from the surrounding
documents and conduct of the parties. The basic requirement of an
agreement cannot be dispensed with. In the present case, such
material is available. The Transfer Letter shows that the Applicant's
employment moved from HOSI to HIOPL. The Respondent
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accepted the Applicant in its employment from 1 February 2020.
The terms of the employment were stated to be no less favourable
than those applicable with HOSI. Most importantly, in its reply
dated 11 September 2025, the Respondent stated that the
Applicant's employment with it was governed strictly by the
Appointment Letter dated 18 March 2019.
30. The Respondent may, before the Arbitral Tribunal, contend
that the words “terms of the appointment letter” did not include
the arbitration clause. It may contend that the transfer created a
separate contract and that the arbitration clause from the HOSI
agreement did not continue with HIOPL. Such questions may arise
for consideration in the arbitration. But on the material available,
these submissions cannot result in a finding that there is no
arbitration agreement at all between the Applicant and the
Respondent.
31. This Court has considered the statement made by the
Respondent in the concluding part of its letter dated 11 September
2025. It states:
“In any case, we refrain from dealing with your notice para-
wise since, your Client has threatened to invoke the
arbitration clause. Please note that if your client chooses to
do so, our Client is prepared to take all necessary actions to
respond accordingly before the arbitral tribunal. All costs,
consequences, and liabilities arising therefrom shall be borne
solely by your Client.”
32. This portion of the letter is relevant. The Respondent was
informed about the Applicant's claim and his intention to invoke
arbitration. Even at that stage, the Respondent did not state that
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there was no arbitration agreement between the Applicant and the
Respondent. Instead, it stated that if the Applicant chose to invoke
the arbitration clause, the Respondent was prepared to take
necessary action before the Arbitral Tribunal.
33. I am conscious that this statement cannot create an
arbitration agreement if there was no such agreement. But the
statement is relevant for considering how the Respondent
understood the contractual position at that time. It has to be read
together with the earlier statement in paragraph 3 of the same
letter that the Applicant's employment with the Respondent was
governed strictly by the Appointment Letter dated 18 March 2019.
34. The case of the Respondent therefore has two separate
aspects which are required to be considered. First, the original
Appointment Letter was issued by HOSI and not by HIOPL. This
submission is factually correct. Second, according to the
Respondent, it never accepted the arbitration clause contained in
that Appointment Letter. On the material before the Court, this
second submission is not established even on a prima facie basis.
35. The Respondent's own document makes it difficult to accept
the second submission. If the Respondent intended to say that the
Applicant's employment with HIOPL was governed by a new and
independent contract having no connection with the Appointment
Letter dated 18 March 2019, it could have said so in its reply dated
11 September 2025. Instead, it stated that the employment with
the Respondent was governed strictly in accordance with the terms
of that Appointment Letter. This statement cannot simply be kept
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aside while deciding the present Application under Section 11.
36. I have considered whether the words “terms and conditions
not less favorable” in the Transfer Letter, by themselves, are
sufficient to bring the arbitration clause into the new employment.
In my view, if these words alone are considered, some examination
may be necessary. An arbitration clause is a specific contractual
term. Its application cannot be assumed merely because another
employment agreement provides for generally similar service
conditions. However, the present case does not depend upon these
words alone. The later and specific statement made by the
Respondent that the Applicant's employment was “governed
strictly in accordance with the terms of the appointment letter
dated 18.03.2019” makes a material difference.
37. I therefore find that the Applicant has placed sufficient
material to show, prima facie, that the Respondent accepted the
Appointment Letter dated 18 March 2019 as governing the terms
of the Applicant's employment with HIOPL. Clause 37 of that
Appointment Letter contains the arbitration agreement. If the
Respondent continues to dispute the existence or scope of the
arbitration agreement, that question can be considered by the
Arbitral Tribunal in accordance with law. At this stage, the material
before the Court is sufficient for appointment of an Arbitrator.
38. The Supreme Court in Glencore International AG observed in
paragraph 29:
“29. In the light of the aforestated settled legal position and
given the admitted facts, which unequivocally demonstrate
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that respondent No. 1 signified its consent to the terms spelt
out in the appellant's email dated 10.03.2016 that found
place in Contract No. 061-16-12115-S which, in turn, was
accepted and acted upon by respondent No. 1, we are of the
considered opinion that the arbitration agreement in clause
32.2 thereof was very much available to the appellant and
invocation thereof under Section 45 of the Act of 1996, by
way of I.A. No. 4550 of 2017 in CS (Comm) No. 154 of
2017, was fully justified and required to be accepted and
acted upon by the referral Court.”
39. The facts of the present case are not exactly the same as
those before the Supreme Court. However, the principle stated by
the Supreme Court has relevance to the present case. Here, the
Court is not proceeding only on the statement of the Applicant.
There is documentary material coming from the Respondent. The
Respondent has expressly stated that the Applicant's employment
with it was governed by the Appointment Letter dated 18 March
2019. The said Appointment Letter contains Clause 37 providing
for arbitration. The Respondent has not placed before the Court
any later appointment agreement which excludes Clause 37 or
states that the arbitration clause contained in the Appointment
Letter dated 18 March 2019 would no longer apply after the
transfer.
40. I have considered the submission that the Applicant's earlier
invocation referred to an appointment agreement dated 4 April
2022 and that the present Application therefore seeks to make out
a different case after withdrawal of the earlier Application. The
mistake is relevant while considering the conduct of the Applicant.
However, the corrigendum and the documents now placed on
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record identify the Appointment Letter relied upon. The existence
of the Appointment Letter dated 18 March 2019 is not disputed.
The Respondent referred to that Appointment Letter in its reply
dated 11 September 2025. Therefore, the mistake in mentioning
the date of the agreement in the earlier notice cannot,, defeat the
prima facie arbitration agreement otherwise supported by the
documents. I therefore do not accept the submission of Mr. Patel
that the present Application must fail merely because the original
Appointment Letter was issued by HOSI. The subsequent transfer
to HIOPL and the Respondent's own written statement regarding
the terms governing the employment have to be considered
together. The material on record establishes, prima facie, the
necessary connection between the Applicant's employment with
the Respondent and the Appointment Letter dated 18 March 2019.
41. There is no dispute that Clause 37 contains the provision for
arbitration and provides the manner in which the Arbitral Tribunal
is to be constituted. It states that if an amicable settlement is not
possible within 30 days after notice, either party may demand in
writing that the dispute be decided by arbitration by three
arbitrators. It provides that each party would appoint one
arbitrator and the two arbitrators so appointed would appoint the
third arbitrator. The clause states that the arbitration shall be
governed by the Arbitration and Conciliation Act, 1996 and that
the place of arbitration shall be Mumbai, India.
42. I therefore find that the Applicant has established, on a
prima facie basis, the existence of an arbitration agreement. The
objection of the Respondent regarding the identity of the original
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employer does not defeat this conclusion. The Respondent's own
subsequent document connects the Applicant's employment with
HIOPL to the Appointment Letter dated 18 March 2019. The
arbitration clause is a part of that Appointment Letter.
43. The disputes raised by the Applicant arise out of his
termination and the circumstances in which his employment came
to an end. The Respondent, in its reply dated 11 September 2025,
has dealt with the complaints and allegations relating to the
Applicant and has stated that his services were terminated after
complaints were received and after the matter was investigated. It
has stated that there was no question of reconsidering the decision
to terminate his employment. In the same reply, the Respondent
has referred to the possibility of invocation of the arbitration
clause and has stated that it would respond before the Arbitral
Tribunal.
44. Whether the termination was proper or not, whether the
allegations against the Applicant were correct, whether the
investigation was properly conducted, whether the Applicant is
entitled to reinstatement or monetary compensation, and what
other relief may be available are matters which are not required to
be decided in the present proceedings under Section 11. These
matters arise from the main employment dispute. The limited
question at this stage is regarding the existence of the arbitration
agreement and constitution of the Arbitral Tribunal.
45. On the material placed before me, I am satisfied that the
Applicant has crossed this threshold. The arbitration agreement
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contained in Clause 37 of the Appointment Letter dated 18 March
2019 is prima facie applicable to the employment relationship
which continued with the Respondent from 1 February 2020. The
objection of the Respondent that there is no arbitration agreement
between the Applicant and the Respondent therefore cannot be
accepted.
46. I accordingly hold that the Applicant has made out a case for
appointment of an Arbitrator. The earlier mistake regarding the
date of the Appointment Letter does not change this conclusion.
The corrigendum, the Transfer of Employment dated 1 February
2020, the Appointment Letter dated 18 March 2019 and, most
importantly, the Respondent's own statement dated 11 September
2025, when considered together, provide sufficient prima facie
material for invocation of the arbitration agreement.
47. In view of the finding recorded hereinabove that there exists
an arbitration agreement between the parties, and in view of the
submissions made by both the learned Advocates that, in the event
this Court comes to such conclusion, a Sole Arbitrator may be
appointed, hence I pass following the following order:
A) Ms. Arti Raghavan, Advocate of this court is hereby
appointed as the Sole Arbitrator to adjudicate upon the
disputes and claims arising between the Applicant and the
Respondent out of and in connection with the Appointment
Letter dated 18 March 2019 and the subsequent transfer of
employment dated 1 February 2020, including the claims
and counterclaims arising therefrom;
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Office Address:- 401, Embassy Centre, Jamanalal Bajaj Marg,
Nariman Point , Mumbai
Email: [email protected]
B) A copy of this Order will be communicated to the
Learned Sole Arbitrator by the Advocates for the Applicant
within a period of one week from today. The Applicant shall
provide the contact and communication particulars of the
parties to the Arbitral Tribunal along with a copy of this
Order;
C) The Learned Sole Arbitrator is requested to forward the
statutory Statement of Disclosure under Section 11(8) read
with Section 12(1) of the Act to the Advocates for the
Applicant so as to enable them to file the same in the
Registry of this Court. The Registry of this Court shall retain
the said Statement on the file of this Applicant and a copy of
the same shall be furnished by the Advocates for the
Applicant to the Advocates for the Respondent;
D) The Learned Sole Arbitrator is requested to forward the
statutory Statement of Disclosure under Section 11(8) read
with Section 12(1) of the Act to the parties within a period
of two weeks from receipt of a copy of this Order;
E) The parties shall appear before the Learned Sole
Arbitrator on such date and at such place as indicated, to
obtain appropriate directions with regard to conduct of the
arbitration including fixing a schedule for pleadings,
examination of witnesses, if any, schedule of hearings etc. At
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such meeting, the parties shall provide a valid and functional
email address along with mobile and landline numbers of the
respective Advocates of the parties to the Arbitral Tribunal.
Communications to such email addresses shall constitute
valid service of correspondence in connection with the
arbitration;
F) All arbitral costs and fees of the Arbitral Tribunal shall
be borne by the parties equally in the first instance, and shall
be subject to any final Award that may be passed by the
Tribunal in relation to costs.
48. All issues on merits are expressly kept open to be agitated
before the arbitral tribunal appointed hereby.
49. All actions required to be taken pursuant to this order shall
be taken upon receipt of a downloaded copy as available on this
Court’s website.
(AMIT BORKAR, J.)
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