Written Submission on behalf of Petitioner

BEFORE THE HIGH COURT OF DELHI

Writ Petition filed under Article 226 of the Constitution of Indus

MEMORIAL FILED ON BEHALF OF THE PETITIONER

Writ Petition No.________ of 2017

Driver Association of india …Petitioner

v.
Union of India
(Transport and labor department ) …Respondent No. 1

Oober Pvt. Ltd. …Respondent No. 2

With Writ Petition No.________ of 2017

SMART … Petitioner
v.
Oober Pvt. Ltd. …Respondent

Most Respectfully Submitted to the Hon’ble Chief Justice & Other Companion
Judges of Dehli high court

COUNSELS APPEARING ON BEHALF OF PETITIONER

Page I of IX
 Written Submission on behalf of Petitioner

TABLE OF CONTENTS

BEFORE THE HIGH COURT OF DELHI.......................................................................................................... I

WRIT PETITION FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDUS....................................I

TABLE OF CONTENTS....................................................................................................................... II

INDEX OF AUTHORITIES.................................................................................................................. III

STATEMENT OF JURISDICTION........................................................................................................ IV

STATEMENT OF FACTS..................................................................................................................... V

STATEMENT OF ISSUES................................................................................................................... VI

SUMMARY OF PLEADINGS............................................................................................................. VII

ARGUMENTS ADVANCED............................................................................................................. - 1 -

1. WHETHER THE INDUSTRIAL DISPUTE IS MAINTAINABLE BEFORE THE HIGH COURT OF DELHI, INCLUDING
WHETHER THE INDUSTRIAL DISPUTE CAN BE CLUBBED WITH SMART’S PUBLIC INTEREST LITIGATION?..................- 1 -

1.1. That the industrial dispute is maintainable before the High Court of Delhi.................- 1 -
1.2. That existence of alternate remedy can debar the high court power to invoke inherent
power under article 226?.............................................................................................................- 4 -
1.3. That the industrial dispute can be clubbed with SMART’s public interest litigation.....- 5 -
2. THAT THE DRIVERS WILL BE CONSIDERED EMPLOYEES OF OOOBER.......................................................- 7 -
3. THAT THE DRIVERS ARE CONSIDERED EMPLOYEES OF OOOBER, AND THEIR CONSENT IS REQUIRED IN ORDER TO
TRANSFER THEIR EMPLOYMENT TO HELLO CABS......................................................................................- 10 -

3.1. DRIVERS CONSENT SHOULD BE TAKEN AS PER THE GENERAL PRACTICE...................- 10 -

4. THAT THE OOOBER’S BUSINESS MODEL IS AN INVENTORY MODEL AND IN VIOLATION OF FDI POLICY AND THE
FOREIGN EXCHANGE AND MANAGEMENT ACT, 1999..............................................................................- 12 -
5. WHETHER THE PROPOSED TRANSACTION CAN BE COMPLETED DURING THE PENDENCY OF THE INDUSTRIAL
DISPUTE.......................................................................................................................................... - 14 -

PRAYER..................................................................................................................................... - 16 -

Page II of IX
 Written Submission on behalf of Petitioner

INDEX OF AUTHORITIES

CASES

Air India Statutory Corporation v. United Labour Union.......................................................................- 2 -

Automobile Products of India v. Rukmaji Bala....................................................................................- 14 -
B. Gopalakrishnan v. The Management Of Indian Potash..................................................................- 14 -
Bhavnagar Municipality v. Alibhai Karimbhai......................................................................................- 15 -
Crips Laboratory Union, Visakhapatnam v.Assistant Commissioner of Labour..................................- 15 -
D.C. Works Ltd. v State of Saurashtra...................................................................................................- 8 -
Gujarat Agricultural University v All Gujarat Kamdar.........................................................................- 14 -
Haribhau Shinde And Anr. V. F.H. Lala Industrial Tribunal..................................................................- 14 -
Hotel Imperial v. Hotel Worker’s Union...............................................................................................- 14 -
John Joseph Khokar v. B.S. Bhadange....................................................................................................- 8 -
Kanan Devan Hills Produce Co. v Industrial Tribunal,..........................................................................- 14 -
Mgmt of Indian Oil Corpn Ltd v Workmen...........................................................................................- 11 -
Mr. Y Aslam v. Uber...............................................................................................................................- 9 -
Municipal and Panchayat Employees Union v. State of Gujarat.........................................................- 15 -
Narendra Kumar v. State of Haryana....................................................................................................- 2 -
Navbharat Hindi Daily v. Navhbharat Shramik Sangha......................................................................- 11 -
Sarada v. Shakuntala.............................................................................................................................- 5 -
Shyam v. Municipal Corporation......................................................................................................- 4 -
Stanley Mendex v. Glovanola Binny Ltd..............................................................................................- 14 -
Stanley Mendex v. Glovanola Binny Ltd.,............................................................................................- 14 -
State of Himachal Pradesh v. Raja Mahendra...............................................................................- 4 -
State of Himachal Pradesh v. Raja Mahendra Pal........................................................................- 4 -
State of Himachal Pradesh  v. Raja Mahendra Pal,...............................................................................- 2 -
Tata Iron & Steel Co Ltd v. SN Modak.........................................................................................- 15 -
Uber Technologies, Inc. v. Barbra Berwick....................................................................................- 8 -

Page III of IX
 Written Submission on behalf of Petitioner

STATEMENT OF JURISDICTION

THE PETITIONERS HAVE APPROACHED THE HON’BLE HIGH COURT

OF DELHI UNDER ARTICLE 226 (1) OF THE CONSTITUTION OF INDIA
READ ALONG WITH SECTION 151 OF CODE OF CIVIL PROCEDURE,
1908 WHICH READ AS UNDER:

ARTICLE 226. POWER OF HIGH COURTS TO ISSUE CERTAIN WRITS-

“(1) Notwithstanding anything in Article 32 every High Court shall have powers,
throughoutthe territories in relation to which it exercise jurisdiction, to issue to any
person or authority, including in appropriate cases, any Government, within those
territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III and for any other purpose.”

SECTION 151. SAVING OF INHERENT POWERS OF COURT- 

“Nothing in this Code shall be deemed to limit or otherwise affect the inherent power
of the court to make such orders as may be necessary for the ends of justice, or to
prevent abuse of the process of the court.”

Page IV of IX
 Written Submission on behalf of Petitioner

STATEMENT OF FACTS

 Ooober Private Limited is a Company in the cab-aggregator business Ooober

takes cab bookings from customers by mobile application and connects the
customer with the drivers. The customer pays for his cab journey, as per an
Ooober-determined rate, with the Driver and Ooober retaining their respective
shares of the fare.
 Ooober consequently received massive funding from a consortium of foreign
investors who collectively acquired 70% of the share capital of Ooober. It then
integrated delivery services into its mobile application platform. The Ooober
team synchronized and amalgamated the payment systems for placing orders
with restaurants, hotels and food stores with the extant mechanism for paying
cab fares. Ooober separately entered into back-to- back arrangements with the
vendors retailing food and beverages on the platform
 However, despite the diversification strategy, the Company continued to make
losses for extended periods, with the balance sheets for the financial years
2015-16 and 2016-17 showing significant losses. Aware of Ooober’s plans to
exit the market, and the fact that Ooober had a vast network of 4,00,000 cabs
across 20 Indian cities, Hello Cabs made an offer to purchase Ooober’s
business in India by way of a share acquisition. Ooober accepted the offer and
agreed to sell its Indian business to Hello with all of the existing Driver
Agreements and agreements in relation to the Delivery Business be novated in
favour of Hello Cabs.
 It also came to light that Ooober was under investigation by the enforcement
directorate for operating in violation of existing foreign direct investment laws
by engaging in retail trading. A coalition of small and medium trading
enterprises, SMART filed PIL against Ooober, before the High Court at Delhi.
 The Drivers had also become aware of the Proposed Transaction and became
concerned about their livelihood. Hello Cabs had a reputation of being cut-
throat corporate entity, driven purely by market forces. The Drivers felt that
Proposed Transaction did not take into account their interests, including job
security. Further, there were certain pre-existing unresolved payment-related
industrial disputes between Ooober and the Drivers.

Page V of IX
 Written Submission on behalf of Petitioner

STATEMENT OF ISSUES

ISSUE I:
WHETHER THE INDUSTRIAL DISPUTE IS MAINTAINABLE BEFORE THE HIGH COURT OF
DELHI, INCLUDING WHETHER THE INDUSTRIAL DISPUTE CAN BE CLUBBED WITH
SMART’S PUBLIC INTEREST LITIGATION;

ISSUE II:
WHETHER THE DRIVERS WILL BE CONSIDERED EMPLOYEES OF OOOBER;

ISSUE III:
IF THE DRIVERS ARE CONSIDERED EMPLOYEES OF OOOBER, WHETHER THEIR CONSENT
IS REQUIRED IN ORDER TO TRANSFER THEIR EMPLOYMENT TO HELLO CABS;

ISSUE IV:
WHETHER OOOBER’S DELIVERY BUSINESS WAS IN VIOLATION OF THE FOREIGN
EXCHANGE MANAGEMENT ACT, 1999; AND

ISSUE V:
WHETHER THE PROPOSED TRANSACTION CAN BE COMPLETED DURING THE PENDENCY
OF THE INDUSTRIAL DISPUTE.

Page VI of IX
 Written Submission on behalf of Petitioner

SUMMARY OF PLEADINGS

Whether the industrial dispute is maintainable before the High Court of Delhi,
including whether the industrial dispute can be clubbed with SMART’s public
interest litigation?

In the instant matter, the present writ petition is maintainable under Article 226 of the
Constitution arising from the aggrieved  drivers, who are employed with Respondent.
A large number of such drivers, almost over 4,00,000 cabs across 20 indian
cities[1] are being subjected to exploitation every day with respect to their pay and
service conditions and are being denied benefits of several labour laws as well as their
fundamental rights under the Constitution by the Respondent. Respondent instructs,
manages and controls the drivers. Their supervision and control extend to all stages of
operation from beginning to end.

Whether the Drivers will be considered employees of Ooober?

    
It is most respectfully submitted that When the Court has to decide whether an
employee was employed by the employer, the test of the substantial nature of the
employment is to be applied. In determining, which of the employees in the various
categories are covered by the definition of ‘workman’, the court has to see what is the
main or substantial work which employees are engaged to do. We can rely on two
tests and determine the status of the workman/independent contractor which being,
integral and substantial nature test.
If the Drivers are considered employees of Ooober, whether their consent is
  

required in order to transfer their employment to Hello Cabs;

It is humbly submitted before this honorable court that the consent of the drivers is a
prerequisite condition of Section 25FF of the Industrial Disputes Act, 1947 and its
contravention defeats the purpose of employment services, thereby the respondents
shall compensate the aggrieved petitioners.

Whether Ooober’s Delivery Business was in violation of the Foreign Exchange

Management Act, 1999?

Page VII of IX
 Written Submission on behalf of Petitioner

It is most respectfully submitted that Foreign investment in India is governed by

the Consolidated FDI Policy (“FDI Policy”) and the Foreign Exchange and
Management Act, 1999 (“FEMA”) and related rules and regulations. In the instant
case Ooober received 70% FDI by “Investor Consortium”, being an inventory
model, which directly contravenes FDI Policy of India and thereby violates provisions
of FEMA. PN3 states that FDI of up to 100 per cent will be allowed without any
government approval only in “marketplace based models” and that FDI in “inventory
based models” is prohibited

Whether the Proposed Transaction can be completed during the pendency of the
industrial dispute?

It is most respectfully submitted that there has to be a proceeding in respect of an

industrial dispute pending before the Tribunal. The alteration has to be in the
conditions of service which were applicable immediately before the commencement
of the Tribunal proceedings,[2]The alteration in the conditions of service has to be
related to a matter pending before the Tribunal, The workmen whose conditions of
service are altered must be related to the matter, The alteration of conditions of
service must be prejudicial to the workmen.

Page VIII of IX
 Written Submissions on behalf of the Petitioner

ARGUMENTS ADVANCED

1. WHETHER THE INDUSTRIAL DISPUTE IS MAINTAINABLE BEFORE THE HIGH

COURT OF DELHI, INCLUDING WHETHER THE INDUSTRIAL DISPUTE CAN BE

CLUBBED WITH SMART’S PUBLIC INTEREST LITIGATION?

It is respectfully submitted that this Court has the jurisdiction to entertain

the petition and grant the petitioner fundamental rights which shall
further be strengthened by the arguments advanced herein under.

1.1. That the industrial dispute is maintainable before the High Court of
Delhi.
1.1.1. It is humbly submitted that, Article 226 of Indian constitution states that,
Power of High Courts to issue certain writs.
(1) Notwithstanding anything in Article 32 every High Court shall have
powers, throughout the territories in relation to which it exercise
jurisdiction, to issue to any person or authority, including in appropriate
cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus,
prohibitions, quo warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III and for any other
purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs
to any Government, authority or person may also be exercised by any
High Court exercising jurisdiction in relation to the territories within
which the cause of action, wholly or in part, arises for the exercise of
such power, notwithstanding that the seat of such Government or
authority or the residence of such person is not within those territories.1
In instant matter, the present writ petition is maintainable under Article
226 of the Constitution stems from the rising disillusionment and
1
Constitution of India

1
 Written Submissions on behalf of the Petitioner

discontentment among the drivers, who are employed with Respondent.

A large number of such drivers, almost over 4,00,000 cabs across 20
indian cities2 are being subjected to exploitation every day with respect to
their pay and service conditions and are being denied benefits of several
labour laws as well as their fundamental rights under the Constitution by
the Respondent. Respondent instructs, manages and controls the drivers.
Their supervision and control extend to all stages of operation from
beginning to end.
1.1.2. It is humbly submitted that, Article 21 of Indian constitution states that,
Protection of life and personal liberty No person shall be deprived of his
life or personal liberty except according to procedure established by law.3
It is humbly submitted that, Right to livelihood is an integral facet of the
right to life.4 The violation of the right to livelihood is required to be
remedied. The right to livelihood as contemplated under article 21 of the
Constitution cannot be so widely construed which may result in the
defeating the purpose sought to be achieved by the aforesaid article. It is
also true that the right to livelihood would include all attributes of life.5
It is humbly submitted that, Right to work is not a fundamental right. But
it can be claimed after employment.6
1.1.3. It is humbly submitted that, it is the fundamental right of every one in
this country, assured under the interpretation given to Article 21 by this
Court in Francis Coralie Mullin v. Administrator 7, Union Territory of
Delhi case, to live with human dignity, free from exploitation. This right
to live with human dignity enshrined in Article 21 derives its life breath
from the Directive Principles of State Policy and particularly Clauses (e)
and (f) of Article 39 and Articles 41 and 42 and at the least.

2
Factsheet para 5
3
Constitution of India
4
Narendra Kumar v. State of Haryana, JT (1994) 2 SC 94
5
State of Himachal Pradesh v. Raja Mahendra Pal, AIR 1999 SC 1786: (1999) 4 SCC 43.
6
Air India Statutory Corporation v. United Labour Union, AIR 1997 SC 645: (1997) 9 SCC 377
7
1981CriLJ306

2
 Written Submissions on behalf of the Petitioner

1.1.4. In the case of Bandhua Mukti Morcha v. Union of India 8wherein

referring to Francis Coralie Mullin v. Administrator 9, Union Territory of
Delhi stated;
“It is the fundamental right of every one in this country, assured under
the interpretation given to Article 21 by this Court in Francis Mullin’s
case, to live with human dignity, free from exploitation. This right to live
with human dignity enshrined in Article 21 derives its life breath from
the Directive Principles of State Policy and particularly Clauses (e) and
(f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must
include protection of the health and strength of workers men and women,
and of the tender age of children against abuse, opportunities and
facilities for children to develop in a healthy manner and in conditions of
freedom and dignity, educational facilities, just and humane conditions of
work and maternity relief. These are the minimum requirements which
must exist in order to enable a person to live with human dignity and no
State neither the Central Government nor any State Government-has the
right to take any action which will deprive a person of the enjoyment of
these basic essentials.”
1.1.5. It is humbly submitted that, In Asiad Construction Worker (1982) 10
Hon’ble Supreme Court has held that the State is under a constitutional
obligation to see that there is no violation of the fundamental right of any
person, particularly when he belongs to the weaker sections of the
community and is unable to wage a legal battle against a strong and
powerful opponent who is exploiting him. The Central Government is
therefore bound to ensure observance of various social welfare and
labour laws enacted by Parliament for the purpose of securing to the
workmen a life of basic human dignity in compliance with the Directive
Principles of State Policy.
1.1.6. It is humbly submitted that, therefore in instant matter Respondent No.1
should examine the fact that whether Respondent No.5 are observing
various social welfare and labour laws such as Employee Compensation

8
19842SCR67
9
Ibid 7
10
IILLJ454SC

3
 Written Submissions on behalf of the Petitioner

Act enacted for the benefit of the workmen. This is a constitutional

obligation which can be enforced against the Central Government and the
State Governments by a writ petition under Article 226 of the
Constitution.

1.2. That existence of alternate remedy can debar the high court power to
invoke inherent power under article 226?

1.2.1. It is humbly submitted that, the powers conferred upon the High Court
under article 226 are discretionary in nature which can be invoked for the
enforcement of any fundamental right or legal right but not for mere
contractual rights arising out of an agreement particularly in view of the
existence of efficacious alternative remedy. The Constitutional Court
should insist upon the party to avail the same instead of invoking the
extraordinary writ jurisdiction of the High Court. This does not, however,
debar the High Court from granting the appropriate relief to a citizen
under peculiar and special facts notwithstanding the existence of
alternative efficacious remedy. The existence of special circumstances
are required to be noticed before issuance of the direction by the High
Court while invoking the jurisdiction under the said article.11
It is humbly submitted that, the possibility of having certain remedies has
not been considered as alternative remedies for refusing relief under
article 226, on the ground that these are not alternative specific legal
remedies, but discretionary remedies which are granted in extraordinary
circumstances.12
1.2.2. It is humbly submitted that, in instant matter also Petitioner has an
alternate remedy to go Labour court under Under section 7 of Industrial
dispute act 1947 which doesn’t mean it restrict or debar the remedy to
file writ petition in high court under Article 226 of Indian constitution as
fundamental rights of petitioner have been violated by respondents.

11
State of Himachal Pradesh v. Raja Mahendra Pal, AIR 1999 SC 1786
12
Shyam v. Municipal Corporation, (1993) 1 SCC 22

4
 Written Submissions on behalf of the Petitioner

1.2.3. It is humbly submitted that, in instant matter fundamental right of the

drivers who are weaker sections of the society have been violated
enshrined in article 21 of Indian constitution by respondent. By the act of
respondents the petitioner are duly qualified to file a writ petition in high
court under Article 226 of Indian constitution. So in instant matter writ
petition is maintainable.

1.3. That the industrial dispute can be clubbed with SMART’s public interest
litigation.

1.3.1. It is humbly submitted that, interpreting article 227 read with section 151
of code of civil procedure, 1908 the High Court has a supervisory
jurisdiction over all Courts and tribunals and can thereby order clubbing
of the matter exercising its inherent power under S.151 to meet the ends
of justice which shall not affect the convenience of the petitioner.
1.3.2. It is humbly submitted that, any person who is likely to be affected by the
impugned order, even though he has no present interest in the property, is
entitled to make an application under article 227. In the case of a public
injury, even a neighbour has been allowed to apply.13
1.3.3. In instant matter petitioner is the party who is likely to be affected by PIL
judgement which creates locus standi for petitioner to file a writ petition
can be clubbed with PIL of SMARTs.
1.3.4. It is humbly submitted that, in the case of SBI V/s. Ranjan Chemicals
Ltd14. The Apex Court has held that a joint trial can be ordered when (i)
if common question of law or fact arises in both the proceedings or right
to relief claimed in them is in respect of or arises out of the same
transaction or series of transactions, (ii) where plaintiff in one action is
the same person as defendant in another action and if one action can be
ordered to stand as counterclaim in the consolidated action and (iii) when
the Court finds that ordering of such trial would avoid separate
overlapping evidence being taken in two causes put in suit and it would

13
Sarada v. Shakuntala, AIR 1991 AP 20, paragraph 9.

14
2007 1 SCC 97

5
 Written Submissions on behalf of the Petitioner

be more convenient to try them together in the interest of parties and for
effective trial of the causes. The Court has opined that it is not necessary
that all question or issues that arises should be common to both actions.
In that, even if some issues and some evidence are common, it would be
sufficient for a joint trial, especially when the two actions arise out of the
same transaction or series of transactions. The Court unambiguously
opined that the power of ordering a joint trial of causes in the court is in
exercise of its inherent powers.
1.3.5. It is humbly submitted that, while hearing Writ Petition (PIL), we noticed
that the subject matter of all other writ petitions referred to above is the
same and directly connected with the subject matter of Writ Petition
(PIL) and, therefore, with a view to avoid any conflicting judgment
coming on record, we thought fit to hear the other petitions also together.
Accordingly, all Special Civil Applications were clubbed and were heard
with the main Writ Petition (PIL).15
1.3.6. In instant matter also, the proposed transaction is same subject matter of
both writ as well as PIL and therefore, with a view conflicting judgment
coming on record, the petitions should be clubbed for hearing.
1.3.7. It is humbly submitted, In a Supreme Court case of Chitivalasa Jute Mills
v. Jaypee Rewa Cement16 it was held that; the whole object behind
consolidation is to avoid multiplicity of proceedings and to prevent delay
and to avoid unnecessary cost and expenses and further to avoid conflict
in the findings/judgments in case of complete or even substantial and
sufficient similarly of the issues arising for decision.
1.3.8. In instant matter also, The relief is common in both the cases as the
delivery business is also a part of the proposed transaction without it the
proposed transaction cannot be completed and the drivers are also
seeking the same relief to stop this proposed transaction as the proposed
transaction did not take into account their interests. So in the light of both
the parties seeking same relief against a same party their matters can be
clubbed together to avoid multiplicity of proceedings and to prevent
delay and to avoid unnecessary cost and expenses.
15
(2012) 53 (3) GLR 2164
16
AIR 2004 SC 1687, (2004) 3 SCC 85

6
 Written Submissions on behalf of the Petitioner

1.3.9. It is humbly submitted that in the instant case the writ petition filed by
drivers and the PIL filed by SMART can be clubbed together as the party
in question is Oober which is common in both writ petition and the PIL.

2. THAT THE DRIVERS WILL BE CONSIDERED EMPLOYEES OF OOOBER.

2.1.1. It is humbly submitted that, that the term employer is defined under Sec
2(g) of the Industrial dispute act 1947 which states an employer means-
The term employer is defined under Sec 2(g) of the Industrial dispute act
1947 which states an employer means-
(i) in relation to an industry carried on by or under the authority of any
department of [the Central Government or a State Government,] the
authority prescribed in this behalf, or where no authority is
prescribed, the head of the department; 17
(ii) in relation to an industry carried on by or on behalf of a local
authority, the chief executive officer of that authority; 18
2.1.2. It is humbly submitted Sec 2(s) of the Industrial Dispute Act defines
workman-
Workman means any person (including an apprentice) employed in any
industry to do any manual, unskilled, skilled, technical, operational,
clerical or supervisory work for hire or reward, whether the terms of
employment be express or implied, and for the purposes of any
proceeding under this Act in relation to an industrial dispute, includes
any such person who has been dismissed, discharged or retrenched in
connection with, or as a consequence of, that dispute, or whose dismissal,
discharge or retrenchment has led to that dispute.19
It is humbly submitted that, the petitioner will fall under the definition of
workmen as given in the Industrial Dispute Act 1947 as they are
employed by respondent no. 2 as skilled employees to continue their
17
Industrial dispute act 1947
18
Ibid 16
19
Ibid 16

7
 Written Submissions on behalf of the Petitioner

transport business and the drivers are called for service when they log
into the oober app and the customers are diverted to drivers by the
company, who then pickups up the customer and drop to their desired
location.20
In the instant case the petitoner and oober entered into a Drivers
agreement21 , where oober takes cab bookings from customers by way of
a mobile application and connects the customers with the drivers the
customers pay for his cab journey, as per an oober determined rate, with
the driver and oober retaining their respective share as agreed in that
Drivers Agreement.
2.1.3. It is humbly submitted that, by relying on substantial nature test it can be
concluded,
When the Court has to decide whether an employee was employed by the
employer, the test of the substantial nature of the employment is to be
applied. In determining, which of the employees in the various categories
are covered by the definition of ‘workman’, the court has to see what is
the main or substantial work which employees are engaged to do.22
It is humbly submitted, it is well settled principle of law, that in
determining the question whether a person employed by the employer is
workman under section 2(s) of the Industrial Disputes Act or not, the
Court has principally to see main or substantial work for which the
employee has been employed and engaged to do.23
2.1.4. It is humbly submitted that, Labour Court of California in the case of
Barbara Ann Berwick V UBER Technologies Inc held that drivers are
employees of Uber.24
It is humbly submitted that, in instant matter also petitioner are the
employees who render their services as driver to continue business of
oober.

20
Para 1 of factsheet.
21
Ibid 19
22
D.C. Works Ltd. v State of Saurashtra 1957AIR 264
23
John Joseph Khokar v. B.S. Bhadange, 1998 L.L.R. 213 (Bom), U.B.S. Publishers, Distributers v.
Industrial
Workers Union. 1998 (78) F.L.R. 786 (Bom)
24
Uber Technologies, Inc. v. Barbra Berwick, Case No: 11-46739 EK at *2 (2015)

8
 Written Submissions on behalf of the Petitioner

2.1.5. It is humbly submitted, A Brazilian judge in Minas Gerais state ruled that
a driver using the Uber ride-hailing app is an employee of the San
Francisco-based company and is entitled to workers' benefits, adding to
the global debate over labour rights for drivers on the platform.
2.1.6. It is humbly submitted that, In the case of Mr. Y Aslam v. Uber B.V. &
Others25, Plaintiff’s work did not entail any “managerial skills” that could
affect profit and loss. Aside from her car, Plaintiff had no investment in
the business. Defendants provided the I phone application, which was
essential to the work. But for Defendants’ intellectual property, Plaintiff
would not have been able to perform the work.In which involved similar
question regarding Cab-service Uber, Employment Tribunal of London,
while declaring drivers as employee of the Uber observed that It is unreal
to deny that the Uber is in business as a supplier of transportation
services and the drivers provide the skilled labour through which the
organisation delivers its services and earns its profits. In this case facts
were like, Plaintiff’s car and her labour were her only assets.
In instant matter also as per above stated case law, petitioner (drivers) are
employee of respondent no. 2 (oober) as it is also is in business of
transportation services and the drivers provide the skilled labour through
which the organisation delivers its services and earns its profits.

25
Mr. Y Aslam v. Uber B.V. & Others, C. N. 2202550/2015.

9
 Written Submissions on behalf of the Petitioner

3. THAT THE DRIVERS ARE CONSIDERED EMPLOYEES OF OOOBER, AND THEIR

CONSENT IS REQUIRED IN ORDER TO TRANSFER THEIR EMPLOYMENT TO

HELLO CABS

It is humbly submitted before this honorable court that petitioner (driver)

are the employee of the respondent no. 2(oober) and thier consent should
have been taken before transferring their employment to hello cabs as it
is in violation of the provisions of the section 25FF of The Industrial
Dispute Act,1947.

3.1. DRIVERS CONSENT SHOULD BE TAKEN AS PER THE GENERAL

PRACTICE

3.1.1. It is reverentially submitted that the apex court through a catena of

judgments has established a general practice of taking consent of the
employees before transferring their employment to a new employer in
case of merger or an acquisition. As per section 25FF of The Industrial
Dispute Act, 1947, in case of transfer of undertaking, either by agreement
or by operation of law or by, from the employer in context of transfer of
undertaking to that new employer, every employee who has been in
service of not less than one year is entitled to anotice or compensation as
per the provisions of section 25F as if being retrenched.26
3.1.2. It is humbly submitted that the apex court in the case of Sunil Kr. Ghosh
v K. Ram Chandran has held that,
“It is settled law that without consent, workmen cannot be forced to work
under different management and in that event, those workmen are
entitled to retirement /retrenchment compensation in terms of the Act. In
view of the same, we are of the view that the workmen are entitled to the
benefit of such direction and it is the obligation on the part of the
Management- Philips India Limited, to comply with the same.”
It is humbly submitted that in the instant case, there has been a change in
management by way of share acquisition, and the employment of the
26
THE INDUSTRIAL DISPUTE ACT,1947,25FF

10
 Written Submissions on behalf of the Petitioner

drivers has been shifted to hello cabs with a novated contract, without
their prior consent. There is clear change in employment terms which
makes the drivers entitled to compensation.
3.1.3. It is humbly submitted that, It is most humbly submitted that in the
instant matter that Oober did not take the consent of the drivers before
transferring their employment to Hello Cabs and which did not comply
with the provisions of Industrial Dispute Act, 1947. Section 9A of the
Industrial Disputes Act, 1947 lays down the condition for the employer
to provide with a notice for change to the employee before change in
working condition of a employee.
3.1.4. Section 9A of the Industrial Disputes Act,1947 lays down the condition
for the employer to provide with a notice for change to the employee
before change in working condition of an employee. It stipulates that it is
mandatory for an employer, who proposes any change in the condition of
service applicable to a workman in respect of any matter specified in the
Fourth Schedule to the Act, to give to the workmen likely to be affected
by such change, a notice of such change.27 Further it is further submitted
that as soon as the employer proposes a change in the conditions of
service applicable to any workman, the provisions of this section are
attracted and the employer has to give the notice under this section to the
employer.28
3.1.5. It is humbly submitted that, instant matter no such notice has been issued
to the drivers who are employees of the Oober. The change in the
proposed conditions of the drivers can be something which was not there
at the commencement of the employement contract between Oober and
the Drivers. Therefore any such changes have to be informed to the
drivers before the proposed transaction which was duly not complied by
Oober.

27
Navbharat Hindi Daily v. Navhbharat Shramik Sangha, 1984 Lab IC 445 (Bom); Sewak Bus &
Transport Co Pvt Ltd v. Punjab State 1973 Lab IC 218 (P&H).
28
Mgmt of Indian Oil Corpn Ltd v Workmen (1975) 2 LLJ 319 (SC)

11
 Written Submissions on behalf of the Petitioner

4. THAT THE OOOBER’S BUSINESS MODEL IS AN INVENTORY MODEL AND IN

VIOLATION OF FDI POLICY AND THE FOREIGN EXCHANGE AND MANAGEMENT

ACT, 1999.

4.1.1. It is humbly submitted that Foreign investment in India is governed by

the Consolidated FDI Policy (“FDI Policy”) and the Foreign Exchange
and Management Act, 1999 (“FEMA”) and related rules and regulations.
In the instant case respondent no. 2 (oober) received 70% FDI by
“Investor Consortium”, being an inventory model, which directly
contravenes FDI Policy of India and thereby violates provisions of
FEMA.
4.1.2. PN3 states that FDI of up to 100 per cent will be allowed without any
government approval only in “marketplace based models” and that FDI
in “inventory based models” is prohibited.29
4.1.3. A marketplace-based model is essentially a B2B model where the e-
commerce entity is merely acting as a facilitator between sellers and
consumers. In this model, an e-commerce entity will not sell goods or
provide services directly to the consumers. The actual sale of goods or
services takes place between the seller and the end consumer. The e-
commerce entity will earn a commission from the seller for the services
provided by it to the seller.
4.1.4. It is contended that Ooober is a Business to Consumer (“B2C”) e-
commerce entity wherein FDI is prohibited if the entity is engaged in
B2C e-commerce30, deriving its authority from a Press Note released in
2000 and subsequently 2015.
4.1.5. The “inventory based model” has been defined as e-commerce activity
where the inventory of goods and services is owned by the e-commerce
entity and those goods and services are sold directly to the consumers by
e-commerce entity. An inventory-based model, therefore, is essentially a
B2C model where the e- commerce entity has ownership over the goods

29
DIPP Press Note No. 8 of 2015, Annexure 1, paragraph 6.2.16.2.1 allows 100% FDI in B2B
Ecommerce activities.
30
Press Note No. 2 (2000 series) (“PN2”),

12
 Written Submissions on behalf of the Petitioner

and the sale of goods and services takes place between the e-commerce
entity and the end consumer.
4.1.6. In a petition filed by India Footwear Manufacturers and Retailers
Association (AIFMRA) & Ors. Vs. Union of India 31, DIPP reiterated that
the present FDI Policy does not account for foreign investment in B2C e-
commerce.
4.1.7. It is humbly respectfully submitted that Ooober’s policy of business
violated the provisions of FEMA and FDI wherein it allowed 70% FDI
by Investors Consortium following a B2C business model thereby
qualifying as an inventory model. The FDI Policy prohibits any foreign
investment in an inventory model and therefore respondent’s no. 2
(oober) violates provisions of Foreign Exchange and Management Act,
1999.

31
India Footwear Manufacturers and Retailers Association (AIFMRA) & Ors. versus Union
of India & Ors (W.P. 7479 of 2015)

13
 Written Submissions on behalf of the Petitioner

5. WHETHER THE PROPOSED TRANSACTION CAN BE COMPLETED DURING THE

PENDENCY OF THE INDUSTRIAL DISPUTE.

5.1.1. To prevent the arbitrary decision of the employer changing the conditions
of service of workmen, the Hon’ble Supreme Court in Bhavnagar
Municipality v. Alibhai Karimbhai 32has settled the position of law. The
following conditions have to be followed in order to invoke the
provisions of section 33.33
1) There has to be a proceeding in respect of an industrial dispute
pending before the Tribunal34
2) The alteration has to be in the conditions of service which were
applicable immediately before the commencement of the Tribunal
proceedings,35
3) The alteration in the conditions of service has to be related to a matter
pending before the Tribunal,36
4) The workmen whose conditions of service are altered must be related
to the matter, 37
5) The alteration of conditions of service must be prejudicial to the
workmen. 38
Section 33 prescribes the exercise of various management ‘prerogatives’
vis-à- vis the employees concerned in the dispute inasmuch as it
introduces a fundamental change in the law of the master and servant in
39
so far as the cases falling under the Act are concerned.” when
industrial disputes are pendent lite before an authority mentioned, the
employers cannot exercise his right to bring a change in the condition of
service of his employees to their prejudice40.The provision applies only

32
AIR 1977 SC 1229
33
Automobile Products of India v. Rukmaji Bala (AIR 1955 SC 258)
34
Kanan Devan Hills Produce Co. v Industrial Tribunal, Ernakulam AIR 1963 Ker 44
35
B. Gopalakrishnan v. The Management Of Indian Potash, (1984) 1 MLJ 218.
36
Stanley Mendex v. Glovanola Binny Ltd., (1968) IILLJ 470 Ker.
37
Gujarat Agricultural University v All Gujarat Kamdar Karmachari Union
38
Haribhau Shinde And Anr. V. F.H. Lala Industrial Tribunal, AIR 1970 Bom 213.
39
Hotel Imperial v. Hotel Worker’s Union (1959) 2 LLJ 544 (SC); Tata Iron and Steel Co. Ltd. v. S N
Modak (1965) 2 LLJ 128 (SC)
40
Tata Iron & Steel Co Ltd v. SN Modak (1965) 2 LLJ 128 (SC); Air India Corpn. v. VA
Rebellow (1972) 1 LLJ 501 (SC).

14
 Written Submissions on behalf of the Petitioner

41
when there is a pending proceeding , the workman claiming protection
is concerned with the proceedings, the alteration in question. Should have
an effect on the condition of service of such workman and such alteration
should be in regard to any matter connected with the pending dispute.42
A close reading of the aforesaid provision makes it clear that pending
conciliation proceedings the Management cannot alter the conditions of
service with regard to any matter connected with the dispute. Since the
dispute that is pending conciliation in this case is the entitlement of the
Management to retrench the workmen, any attempt by the Management
to retrench the workmen would certainly amount to altering the
conditions of service in regard to the matter connected with the dispute.
Any other interpretation, in my considered view-particularly the one put
forward by the learned Counsel for the Management-will destroy the
very spirit of the aforesaid provision, which is a beneficial piece of
Legislation intended to secure the interest of the workmen pending
conciliation proceedings.43

41
Municipal and Panchayat Employees Union v. State of Gujarat, (1988) 1 LLJ 309 (Guj).
42
Bhavnagar Municipality v. Alibhai Karimbhai,(1977) 1 LLJ 407 (SC).
43
Crips Laboratory Union, Visakhapatnam v.Assistant Commissioner of Labour, 2000(3)ALD798;

15
 Written Submissions on behalf of the Petitioner

PRAYER

WHEREFORE, IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS

ADVANCED, REASONS GIVEN AND AUTHORITIES CITED, THIS HON’BLE
COURT MAY BE PLEASED TO:

 ISSUE THE WRIT OF MANDAMUS DIRECTING THE CONCEREND

AUTHORITIES TO EXAMINE THE FACT AND RENDER DECISION.
 ADJUDGE THAT THE PETITIONER’S FUNDAMENTAL RIGHTS
HAVE BEEN VIOLATED BY RESPONDENT NO. 2 AS PAYMENTS
HAVE NOT BEEN PAID WHICH INFRINGED THEIR RIGHT TO
LIVELIHOOD
 SET ASIDE THE ARREST ORDERS ISSUED BY THE SPEAKER
AGAINST THE PETITIONER.
 Hold the Writ Petition and Public Interest Litigation maintainable.
 Declare that the petition and PIL can be clubbed together
 Declare that Drivers are employees of Oober
 Hold that consent of the Drivers is required in order to transfer
their employment to Hello Cabs
 Hold Oober liable for contravention of FDI regulations.
 Hold that the Proposed Transaction cannot be completed during
the pendency of proceedings.

AND ANY OTHER RELIEF THAT THIS HON’BLE COURT MAY BE

PLEASED TO GRANT IN THE INTERESTS OF JUSTICE, EQUITY AND
GOOD CONSCIENCE, ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Sd /-
COUNSELS FOR
THE PETITIONERS

16