ALLIED LAWS

11. Arbitration – Challenging order passed by the arbitrator pending arbitration proceedings ruling on its own jurisdiction – Not by writ petition – Arbitration Act is a Code by itself [Arbitration and Conciliation Act, 1996; Code of Civil Procedure, 1908; Constitution of India, 1949, Art. 226, Art. 227]

GTPL Hathway Ltd. vs. Strategic Marketing Pvt. Ltd.; R/SCA No. 4524 of 2019; Date of order: 20^th April, 2020 (Guj.)(HC)

On a petition filed u/s 11 of the Arbitration and Conciliation Act, 1996 (the Act), the High Court vide an order dated 9^th February, 2018 appointed a sole arbitrator. Thereafter, the arbitral Tribunal vide order dated 14^th February, 2019 dismissed the preliminary objection application filed by the petitioner (of this writ petition) and held that it has jurisdiction over the dispute between the parties. The petitioner filed a writ petition before the Hon’ble High Court.

The Court held that section 16 of the Act empowers an arbitral Tribunal to rule on its jurisdiction, section 34 of the Act pertains to setting aside of an arbitral award and section 37 of the Act provides for an appeal if the arbitral Tribunal declines jurisdiction. Therefore, these provisions provide for a complete code for alternative dispute resolution as against the Civil Procedure Code, 1908. Further, considering the policy, object and provisions of the Act, the same appear to be a special act and a self-contained code. Therefore, during pendency of arbitration proceedings, the impugned order dismissing the preliminary objections cannot be challenged under Article 226/227 of the Constitution.

12. Employment – Covid-19 – Deferral of payment of salary – Denial of property [Constitution of India, 1949, Art. 300A]

Meena Sharma vs. Nand Lal W.P(C) TMP No.182 of 2020; Date of order: 28^th April, 2020 (Ker.)(HC)

On financial difficulties arising out of the lockdown, the Kerala government had issued an order dated 23^rd April, 2020 stating that the salaries of all government employees who are in receipt of a gross salary of above Rs. 20,000 would be deferred to the extent of six days every month from April to August. Individuals of different departments filed a petition before the Hon’ble High Court challenging the order for being unconstitutional and violative of Article 300A of the Constitution of India.

The Court held that payment of salary to an employee is certainly not a matter of bounty. It is a right vested in every individual to receive the salary. It is also a statutory right as it flows from the Service Rules. The right to receive salary every month is part of the service conditions emanating from Article 309 of the Constitution of India. Further, neither the Epidemic Diseases Act, 1897 nor the Disaster Management Act, 2005 justify such an order and deferment of salary for whatever reason amounts to denial of property.

13. Labour law – Payment of wages – Covid-19 – Principle of ‘No work – No wages’ not applicable [Industrial Disputes Act, 1947]

Rashtriya Shramik Aghadi vs. The State of Maharashtra and Others; WP No. 4013 of 2020; Date of order: 12^th May, 2020 (Bom.)(HC)(Aur.)

A workers’ union made a grievance before the Bombay High Court that a lockdown has been effected but though the members of the Union are willing to offer their services as security guards and health workers, they are precluded from performing their duties on account of the clamping of the lockdown for containment of the Covid-19 pandemic. Further, the payments made by the contractors for the month of March, 2020 are slightly less than the gross salary; and for the month of April, 2020 a paltry amount has been paid.

The Court held that these employees are unable to work since the temples and places of worship in the entire nation have been closed for securing the containment of the Covid-19 pandemic. Even the principal employer is unable to allot the work to such employees. In such an extraordinary situation, the principle of ‘No work —­ No wages’ cannot be made applicable.