2024 (12) TMI 663

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....022 dated 20.12.2022, the appellant has filed this appeal on the ground that the dispute with the respondent-employer, M/S Hyundai Auto Ever India Pvt. Ltd. is governed by statute under the Payment of Wages Act, 1936 Hereinafter referred to as the 'PW Act' and the Industrial Disputes Act, 1947 Hereinafter referred to as the 'ID Act'. In the normal course and in recognition of judicial restraint, as incorporated in Section 5 of the Act, we would have asked the appellant to raise these objections before the Arbitral Tribunal itself. However, as the following narration of facts speaks for itself, we have found that the application under Section 11 of the Act is a clear abuse of the remedial process. We have therefore allowed the appeal and dis....

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....onal matter of a confidential nature which may be your privilege to know by virtue of you being HAEI''s employee." of the appointment conditions relating to violation of the non-disclosure obligation. Ultimately, an order of termination was passed on 21.01.2021, the relevant portion of the said order of termination is important for our consideration and it is extracted hereinbelow for ready reference. "Please refer our Show Cause Notices dated 4th Sep 2020, Emails dated (05th Aug, 03rd Sep, 07 Sep 2020 & 07 Jan 2021) and the charge sheet dated (26 Nov 2020). You have continued to remain absent at work premises without authorisation and also you did not present yourself for our enquiry meetings called for as per our disciplinary Pol....

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....or to rule on his competence. It is interesting to note that the arbitrator himself passed an order on 01.05.2022 taking into account the decision of this Court in Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd. (2020) 20 SCC 760 and closing the arbitral proceedings. The relevant portion is reproduced here as follows: "[...] In the present case, as detailed herein above, the appointment of the undersigned as the Arbitrator and the Constitution of the Arbitral Tribunal thereof are without the consent or the participation of the Respondent. Once the jurisdiction of this Arbitral Tribunal has been put into question on that ground, this Tribunal ceases to have the power or authority to proceed with the matter in any manner. ....

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....by filing a petition under Section 11(6) of the Act in August 2022 seeking appointment of an arbitrator. The disputes between the appellant and the respondent, as indicated in the arbitration petition relate to non-payment of wages and also the legality and validity of termination order dated 21.01.2021. Over and above these disputes, for the first time the respondent sought to give a new angle to the dispute by stating that the appellant has also violated the non-disclosure obligations under clause 19 of the appointment order. 11. In the order impugned before us, the High Court has proceeded to note an arbitration agreement and therefore, appointed an advocate as the arbitrator. 12. The issue relating to violation of the non-disclosu....

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....the subject of a direction under section 15 in favour of the plaintiff; or (c) has been adjudged, in any proceeding under section 15, not to be owed to the plaintiff; or (d) could have been recovered by an application under section 15." 15. Equally, legality of the order of termination dated 21.01.2021 is within the jurisdiction of Industrial Tribunal under Section 2(A) of the ID Act and it is important to mention that the jurisdiction of the Industrial Court is also to the exclusion of the civil courts and is not arbitrable. It is also important to note that remedies under these statutes were invoked much prior to the filing of petition under Section 11(6) by the respondent. In Vidya Drolia v. Durga Trading Corporation....