I had sent a legal notice to the company against illegal termination. As per the arbitration and conciliation act 1996 which is mentioned in the appointment letter, I told the company to appoint an arbitrator and reply to the legal notice within 30 days.
However, the company didn't respond to this legal notice within the timeframe. They also didn't provide any information regarding arbitrator appointments so finally case is filed in labor court. The company sent 2 proxy advocates in the first 2 hearings. Now in the 3rd hearing company has moved an application to challenge court jurisdiction by saying that this case should be solved by the arbitration and conciliation act 1996, under section 8.
I am looking for an expert opinion regarding this.
1However, the company didn't respond to this legal notice within the timeframe. They also didn't provide any information regarding arbitrator appointments so finally case is filed in labor court. The company sent 2 proxy advocates in the first 2 hearings. Now in the 3rd hearing company has moved an application to challenge court jurisdiction by saying that this case should be solved by the arbitration and conciliation act 1996, under section 8.
I am looking for an expert opinion regarding this.
The company having failed to avail the provision of Arbitration cannot now take refuge under it. At any rate, the Labour Court has the jurisdiction to deal with the matter. Such legal rights cannot be taken away by a mutual agreement. So you may put up your defence accordingly. It seems, the company is try to delay the matter and trying to tire you out.
From India, Mumbai
From India, Mumbai
Dear Prerna,
You have not disclosed in what capacity you were employed i.e., workman, supervisory or managerial at the time of your alleged illegal termination.
Had you been employed in any of the latter two cadres so as to escape the ambit of the definition of the term ' workman' as defined u/s 2 (s) of the Industrial Disputes Act,1947, and if you had already agreed for arbitration under the Arbitration and Conciliation Act,1996 subject to its meeting the requirements of sec.7 of the A&C Act,1996, the contention of your management would be maintainable.
On the contrary, had you been employed as a workman, the contention of the management is not at all tenable in view of the ratio decidendi of the judgment of the Supreme Court in Rajesh Korat v. Management, Innoviti Embedded [ 2017 SCC Online kar 4975 ] and that of the Bombay High Court in King Fishers Airlines v. Captain Malhotra & Others [ 2013 (7) Bom CR 738 ]. The indisputable reason is that the IDA,1947 is a self-contained Code and to that extent the A&CA,1996 does not have any application to matters governed by the IDA,1947. Besides, even the provisions of the A&CA,1996 would not be applicable to the voluntary arbitration provided u/s 10-A of the IDA,1947.
Coming to your case, had you not been employed in workman category, my opinion would be that you can submit to the arbitration under the A&CA as you had already agreed. Otherwise, you will have to approach a Civil Court only.
From India, Salem
You have not disclosed in what capacity you were employed i.e., workman, supervisory or managerial at the time of your alleged illegal termination.
Had you been employed in any of the latter two cadres so as to escape the ambit of the definition of the term ' workman' as defined u/s 2 (s) of the Industrial Disputes Act,1947, and if you had already agreed for arbitration under the Arbitration and Conciliation Act,1996 subject to its meeting the requirements of sec.7 of the A&C Act,1996, the contention of your management would be maintainable.
On the contrary, had you been employed as a workman, the contention of the management is not at all tenable in view of the ratio decidendi of the judgment of the Supreme Court in Rajesh Korat v. Management, Innoviti Embedded [ 2017 SCC Online kar 4975 ] and that of the Bombay High Court in King Fishers Airlines v. Captain Malhotra & Others [ 2013 (7) Bom CR 738 ]. The indisputable reason is that the IDA,1947 is a self-contained Code and to that extent the A&CA,1996 does not have any application to matters governed by the IDA,1947. Besides, even the provisions of the A&CA,1996 would not be applicable to the voluntary arbitration provided u/s 10-A of the IDA,1947.
Coming to your case, had you not been employed in workman category, my opinion would be that you can submit to the arbitration under the A&CA as you had already agreed. Otherwise, you will have to approach a Civil Court only.
From India, Salem
Thanks all for assistance. I was employed as workman. My designation was technical support executive in a BPO company. Case is filed u/s 2a(2) in labour court for reinstatement and payment for back wages. After sending proxy advocates now the company is challenging court jurisdiction by saying that this case should be solved by the arbitration and conciliation act 1996, under section 8.
As per the arbitration and conciliation act 1996 which is mentioned in the appointment letter, I myself told the company to appoint an arbitrator and reply to the legal notice within 30 days.
However, the company didn't respond to this legal notice within the timeframe. They also didn't provide any information regarding arbitrator appointments so finally case is filed in labor court.
Is sending proxy advocates again and again a fair practice?
Under which section of arbitration act 1996, I can oppose and dismiss company's application?
As per the arbitration and conciliation act 1996 which is mentioned in the appointment letter, I myself told the company to appoint an arbitrator and reply to the legal notice within 30 days.
However, the company didn't respond to this legal notice within the timeframe. They also didn't provide any information regarding arbitrator appointments so finally case is filed in labor court.
Is sending proxy advocates again and again a fair practice?
Under which section of arbitration act 1996, I can oppose and dismiss company's application?
Dear Prerna,
If your statement that you are a workman u/s 2(s) of the Act,1947 is correct, certainly the contention of the employer that the Labor Court constituted under the IDA,1947 has no jurisdiction by virtue of your contract of employment providing a clause for arbitration under the Arbitration and Conciliation Act,1996 which you had agreed at the time of your appointment is not at all maintainable. When a similar question arose before the Bombay High Court in King Fishers Airlines Vs. Captain Malhotra & Others the Bombay High Court affirmed the order of the Labor Court and categorically held that labor disputes were not arbitrable under the A&C Act,1996. The same judicial conclusion was confirmed further with the observation by the Karnataka High Court about the exclusive jurisdiction of the IDA,1947 as mentioned in my previous post.
You file a counter citing the above judgments in the Labor Court and pray for the dismissal of the petition by the employer.
From India, Salem
If your statement that you are a workman u/s 2(s) of the Act,1947 is correct, certainly the contention of the employer that the Labor Court constituted under the IDA,1947 has no jurisdiction by virtue of your contract of employment providing a clause for arbitration under the Arbitration and Conciliation Act,1996 which you had agreed at the time of your appointment is not at all maintainable. When a similar question arose before the Bombay High Court in King Fishers Airlines Vs. Captain Malhotra & Others the Bombay High Court affirmed the order of the Labor Court and categorically held that labor disputes were not arbitrable under the A&C Act,1996. The same judicial conclusion was confirmed further with the observation by the Karnataka High Court about the exclusive jurisdiction of the IDA,1947 as mentioned in my previous post.
You file a counter citing the above judgments in the Labor Court and pray for the dismissal of the petition by the employer.
From India, Salem
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