For Petitioner

IN THE HON’BLE HIGH COURT OF KARUNAADU
WRIT PETITION (CIVIL) NO. …..OF 2014
[UNDER ART. 226 OF THE CONSTITUTION OF DHARATH]
▬ IN THE MATTER OF ▬
ABC EDUCATIONAL SOCIETY
….. PETITIONER
VERSUS
STATE OF KARUNAADU
….. RESPONDENT
M .S. RAMAIH MEMORIAL 5THNATIONAL MOOT COURT COMPETITION, 2014
MEMORANDUM ON BEHALF OF THE PETITIONER
DRAWN AND FILED BY THE COUNSELS FOR THE PETITIONER
TEAM CODE:
TABLE OF CONTENTS
TABLE OF CONTENTS 2
ABBREVIATIONS AND ACRONYMS 4

M.S. RAMAIH MEMORIAL 5TH NATIONAL MOOT COURT COMPETITION, 2014
INDEX OF AUTHORITIES 5-9
STATEMENT OF JURISDICTION 10
STATEMENT OF ISSUES 11
STATEMENT OF FACTS 12
SUMMARY OF ARGUMENTS 13
ARGUEMENTS ADVANCED………………………………………………………….......…14-32
1. Whether the PIL is maintainable in the light of the objection raised by the
Respondent?..............................................................................................................................................14-21
1.1 That the writ petition is maintainable before the Hon’ble High Court of
Karunaadu in the light of the objections raised by the
respondent……..……………..……………………………………………...14-17
1.2 That, the notification issued in the instant case is in conflict with the fundamental
rights………………………………………………………………..…………………..17-19
1.3 That, the arguments raised by the respondents regarding the non-joinder of parties
is futile and immaterial………………………..…………………...………………....19-2l
1.4. Conclusion for the first issue……………............................……………….……21
2. Whether section 1(5) of the Act to the extent of ‘or otherwise’ is constitutional or
not?.......................................................................................................................22-26
2.1. That the phrase ‘or otherwise’ confers excessive delegation on the Government
and isviolative of Article 14 of the Constitution…………………………..………..22-25
2.2. Precedent sub-silentio…………………….…………………….....……………….25-26
2.3. Conclusion for the second issue…………………………………….………….26

3. WHETHER THE NOTIFICATION ISSUED UNDER THE SECTION 1(5) IS VALID OR
NOT?..................................................................................................................27-32
3.1. Through the submissions tendered herein it will be established that the said
notification issued under section 1(5) is invalid and ultra-vires to the Constitution
of Dharath.……………………………………………………………………………...…..27-29
3.2 That the notification issued by the Government is arbitrary and permits
unreasonable classification, made without application of mind, and thus is
violative of art. 14 of the Constitution of Dharath………………..……………..29-31
2
▬ DRAWN AND FILED BY THE COUNSELS FOR THE PETITIONER ▬
3.3 That the notification issued by the Karunaadu Govt. is contrary to the proviso of
section 1 (4)………..…………………………………………………………31-32
3.4. Conclusion for third issue………………………………....…………………….32
PRAYER 33
3
ABBREVIATIONS AND ACRONYMS
 Art. : Article
 Ed. : Edition
 i.e. : that is
 pp./p. : page
 v. : versus
 vol. : Volume
 & : And
 ¶ : Paragraph
 § : Section
 AIR : All India Reporter
 Ed. : Edtion
 Sec : section
 Ltd. : Limited
 Ors. : Others
 SC : Supreme Court
 SCC : Supreme Court Cases
 viz. : Videlicet
 U.O.I. : Union of India
 Govt. : Government
4
INDEX OF AUTHORITIES
STATUTES/CONVENTIONS
 Constitution of Dharath.
 Employees State Insurance Act, 1948.
 Industrial Disputes Act, 1947.
 Minimum Wages Act, 1948.
 Employees State Insurance Central Rules 2010.
 Grants-in-aid code of Karunaadu Govt.
BOOKS AND COMMENTARIES
 Basu DD, “Shorter Constitution of India”, 14th Ed., Rep. 2011, Lexis
NexisButterworthsWadhwa, Nagpur.
 De D. J. “The Constitution of India”, 2nd Ed., Asia Law House, Hyderabad.
 Pandey, J. N., Constitutional Law of India, 48th ed. 2011, Central Law Agency,
Allahabad,
 Jain, M..P., ‘Indian constitutional Law,” Vol.1, 5th Ed. 2008, Lexis
 Shukla, V.N., “Constitution of India,” Revised by Mahendra P. Singh, 10th Ed. 2001,
Eastern Book Company Lucknow.
 Malik, P.L., “Handbook of Labour and Industrial Law”, 12thEd. 2009, Eastern book
Company, Lucknow.
 Kothari, G.M., “A study of Industrial Law ”, 5th Ed. 2000, Wadhwa& Co. Nagpur.
 Misra, S.N., “Labour& Industrial Laws”, 25th Ed., Rep. 2009, Central Law
Publication, Allahabad.
 Jain, M.P. & Jain S.N., “Principles of Administrative Law” 5th Ed., Rep. 2009, Lexis
 Massey, I.P., “Administrative Law”, 7th Ed. 2008, Eastern Book Company, Lucknow.
5
 Takwani, C.K., “Lectures on Administrative Law”, 5th ed. 2012, Eastern Book
Company, Lucknow.
 Mathur, D.N., “Interpretation Of Statutes”, 3rd Ed. 2010, Central Law Publications,
Allahabad.
 Singh, G.P., “Principles Of Statutory Interpretation”, 12th Ed. 2010. , Lexis
 Paranjape, N.V., “Jurisprudence & Legal Theory”, 6th Ed. Rep. 2012, Central Law
Agency Allahabad.
DICTIONARIES
1. Bryan A. Garner, ‘Black’s Law Dictionary’, 9th Ed., 2009, West Group.
2. Greenberg Daniel, ‘Strouds Judicial Dictionary of Words and Phrases’, 7th Ed. Sweet
and Maxwell Co.
3. RamanathaAiyar P., ‘Concise Law Dictionary’, 3rd Ed., Rep. 2006, Wadhwa, Nagpur.
ELECTRONIC MEDIUM
 http://www.manupatra.com(visited on......................(04-02-14, 05-02-14, 18-02-14)
 http://www.westlaw.com(visited on............................................( 05-02-14, 06-02-14)
 http://www.jstor.com(visited on…...............................................................(15-02-14)
 http://www.un.org(visited on…………………………………..…………..(15-02-14)
 http://www.scconline.com(visited on…………………………...………….(25-02-14)
CASES
6
1. A. Sunderambal v. Govt. of Goa, Daman & Diu, (1988) 4SCC 42 28

2. A.N. Parasuraman v. State of T.N. AIR 1990 SC 40 24
3. A.L.Kalra v. P & E Corpn. Of India Ltd., AIR 1984 SC 1361 30
4. Air India v. Narghees Mirza, AIR 1981 SC 1829 18, 22
5. Air India Statutory Corp. v. United Labour Union And Others, 1997 AIR SCW 430 31
6. Ameeronisa Begum v. Mahboob Begum, AIR 1953 SC 91 30
7. Arunachala Nadar, M.C.V.S. v. State of Madras, AIR 1950 SC 300 16
8. Atlas Cycles Ltd. v. State of Haryana, AIR 1972 SC 121 18
9. Avinder Singh v. State of Punjab, AIR 1979 SC 321 25
10. Baburao v. State of Bombay Housing Board,
1954 SCR 572
30
11. Bachan Singh v. State of Punjab,
AIR 1982 SC 1325
15
12. Bangalore Water Supply and Sewerage Board v. A. Rajappa,
(1978) 2 SCC 213
……. 27,28
13. Corporation of City of Nagpur v. Its Employees,
[1960] 2 SCR 942
28
14. Deputy Commissioner of Hardoi v. Rama Krishna, 1953 AIR 521, 1954 SCR 506
19
15. Deepak Sibal v. Punjab University,AIR 1989 SC 903
30
16. Dhaudaram v. State of Rajasthan,AIR 1983 Raj 29
30
17. District Registrar & Collector, Hyderabad v. Canara Bank,
(2005) 1SCC 496
22
18. Dolly Chandrav. Chairman Jee, (2005) 9 SCC 779
15
19. Dwarka Prasad Laxmi v. State of Uttar Pradesh,
AIR 1954 SC 224
17
20. Express Newspapers (P) Ltd. v. Union Of India,
AIR 1986 SC 872
16
21. General Manager, South Central Railway v. Siddhanti, AIR 1974 SC 1755: (1974) 4 SCC
335 20
7
22. Ghosh v. Joseph,AIR 1963 SC 812

16
23. Hamdard Dawakhana v. Union of India,
AIR 1960 SC 554
24
24. Hari Shankar Bagla v. State of M.P,
AIR 1954 SC 465
17
25. Haryana Development Authority v. Dropadi Devi,
(2005) 9 SCC 514
15
26. Haryana Unrecognized schools Associations v. State of Hayana
, (1996) 4 SCC 225
28
27. Hindu Jea Band, Jaipur vs Regional Director, Emplyees State Insurance Corporation Jaipur,
1987 AIR 1166, 1987 SCR (2) 377 26
28. Javeed v. State of Haryana,AIR 2003 SC 3057
15
29. JitendraNath v. W.B. Board of Exam,
AIR 1983 Cal 275
30
30. J.P. Kulshreshtha v. Allahabad University
, AIR 1980 SC 2141
30
31. Kaushal P.N. v U.O.I.,AIR 1978 SC 1457
25
32. Kedar Nath v. State of Bihar,
AIR 1962 SC 955
16
33.Kirloskar Brothers Limited v. Employees' State Insurance Corporation,
1996 AIR SCW 2296
31
34. Krishna Mohan(P.) Ltd. V. Municipal Corporation Delhi,
AIR 2003 SC 2935
24
35. L.I.C. of India v. Consumer Education and Research Centre, AIR 1995 SC1811: (1995)
5SCC 482 29
36. LaxmiKhandsari v. State of U.P.,AIR 1981 SC 873, 891: (1981) 2 SCC 600
30
37. Maharaja College Of Arts And Science v. State of Tamil Nadu,
2011 (3) LNN 694 (Mad.)
29,31
8
38. Manappa v. State of Karnataka,

W.P. no. 104228/2013
29
39. Maneka Gandhi v. Union of India,
AIR 1978 SC 597
15, 22
40. M.K. Santhamma v. State of Kerala P.S.C.,
AIR 1983 Ker. 84
30
41.Municipal Committee, Patiala v. Model Town Residents Assn., AIR 2007 SC 2844.……….23
42. Municipal Corporation of Delhi v. Gurnam Kaur
, 1989 AIR 38, 1988 SCR Supl. (2) 929
25
43. Murari Mohan Deb v. Secy. To the Govt. of India,(1985) 3 SCC 120 : AIR 1985 SC 931
21
44. Narendra Kumar v. U.O.I
, AIR 1954 SC 224
17, 29
45. Naraindas v. State of M.P.,AIR 1974 SC 1232, (1974) 4SCC 788
24
46. Om Kumar v. Union of India,
AIR 2000 SC 3689
15
47. Prabodh Verma v. State of U.P.,
(1984) 4 SCC 251
21
48. Pravin v. State of Maharashtra,
2001 CriLJ 3417
19
49. Rajesh Kumar Gupta v. State of U.P.
, AIR 2005 SC 2540
20
50. Ramji Lal v. State of Uttar Pradesh,
AIR 1957 SC 620
15
51. RamkrishnaDalmia v. Tendolkar Justice S.R.,
AIR 1958 SC 538
30
52. Rashod Ahmad v. Municipal Board
, AIR 1950 SC 163
17
53. Reid- Coperative Timber Works Ltd.v. ESI Corp.,
AIR 1970 Mad 439
32
54. Reliance Energy Ltd. v. Maharashtra State Road Development Corpn.,(2007) 8 SCC 1
30
9
55. Roopchand Adlakha v. D.D.A.,AIR 1989 SC 307: (1989) 1 Supp. SCC 116
30
56. Saghir Ahmad v. State of U.P.,
AIR 1954 SC 728
16
57. Sakal Papers v. Union of India,
AIR 1962 SC 305
16
58. Satwant Singh Sawhney v. A.P.O.,AIR 1967 SC 1836
23
59. Shama Rao v. Union Territory of Ponducherry,
AIR 1967 SC 1480
26
60. Shankarsan Dash v. U.O.I.,AIR 1991 SC 1612
20
61. Sitaram Vishambhar Dayal v. State Of U.P.
, AIR 1972 SC 116
23
62. Sodan Singh v. New Delhi Municipal Committe1989)
,( 4 SCC 155
14
63. State of A.P. v. Nalla Raja Reddy,
AIR 1967SC 1458
30
64. State of Gujrat v. Mirzapur Moti Kureshi Kassab Jamat,
(2005) 8 SCC 534
15
65. State of W.B. v. Anwar Ali Sarkar,
AIR 1952 SC 75
22
66. State(U.O.I) v. Ram Saran,(2003) 12 SCC 578
18
67. Sudhir Chandra v. Tata Iron & Steel Co. Ltd.
, AIR 1984 SC 1064 : (1984) 3 SCC 369
23
68. Suman Gupta v. State of J&K,
AIR 1983 SC 1235
24
69. Supdt. v. Ram Manohar,AIR 1960 SC 633
16
70. Suraj Mall Mohta& Co. v. A.V. Visvanathasastri,
AIR 1954 SC 545
22
10
71. Suresh Chandra Sharma v. Chairman,

AIR 2005 SC 2021
15
72. Surinder Shukla v. U.O.I.,(2008) 2 SCC649
20
73. Surjit Singh v. State Of Punjab And Others,
[1996]1SCR1095
31
74. T.M.A. Pai Foundation v. State of Karnataka,
(2002) 8 SCC 481
14, 27
75.Udit Narain Singh v. Board of Revenue, Bihar, AIR 1963 SC 786 (790) : 1963 Supp. (1) SCR
676 21
76. Vasant Lal Magan Bhai Sajanwala v. State of Bombay
AIR 1961 SC 4
24
77. Vishun das Hundumal v. State of M.P.,
AIR 1981 SC 1636
30
STATEMENT OF JURISDICTION
11
The Petitioner has approached the Hon’ble High Court of Karunaadu under Article 2261 of
the Constitution of Dharath for the violation of Fundamental Right guaranteed under Article
19(1) (g).
The counsels for the Petitioner most humbly and respectfully submit to the jurisdiction of this
Hon’ble High Court of Karunaaduand accept that it has the power to hear and decide the
present matter.
STATEMENT OF ISSUES
1. WHETHER THE WRIT PETITION IS MAINTAINABLE IN THE LIGHT OF THE OBJECTION RAISED BY
THE RESPONDENT?
1
Power of High Courts to issue certain writs .
12
2. WHETHER SECTION 1(5) OF THE ACT TO THE EXTENT OF ‘OR OTHERWISE’ IS CONSTITUTIONAL
OR NOT?
3. WHETHER THE NOTIFICATION ISSUED UNDER THE SECTION 1(5) IS VALID OR NOT?
13
STATEMENT OF FACTS
FACTUAL BACKGROUND :
 In the country of Dharath, the State of Karunaadu has issued a notification dated
16.3.2011 under Section 1(5) of the Employees’ State Insurance Act, 1948, by which it
has extended the ESI benefits to the establishments mentioned under its schedule. And it
was published in the official gazette 13-1-2011 and on the same day it was made
available to the public also.
 An educational society ABC is running hundreds of institutions from kindergarten to
super specialty medical courses, which was established over a century ago. Out of which
some of the institutions of the petitioner are aided and some of the institutions are un-
aided.
 The service conditions of the employees are governed by the service rules framed by the
society. The service rules provides for sick leave, maternity benefit, medical treatment
reimbursement, provident fund and the persons working in the aided institutions are
governed by several rules, regulations and policies made by the Government from time to
time.
PROCEDURAL BACKGROUND :
 A writ petition has been filed by the Educational Society, challenging the constitutional
validity of Section 1(5) of the ESI Act in so far as by employing the words “or otherwise”
there is excessive delegation of legislative power. It has also challenged the said
notification as arbitrary, unconstitutional, made without application of mind and at any
rate there is non-compliance with the requirement under Section 1(5) of the ESI Act.
 It is contended that the hospitals established by the ESI Corporation do not enjoy a very
high reputation and there is no infrastructure created to cater to the additional coverage
introduced by the notification and therefore virtually amounts to imposing a tax without
there being any element of service. The Respondents relied on a letter from the Deputy
Secretary of the Central Government to show compliance with requirements of Section
1(5) of the ESI Act and also claimed that they had infrastructure at all places where the
geographical area is covered under Section 1(3) of the ESI Act.
 Considering the constitutional importance of the question raised in the writ petition, the
Single Judge referred the matter to a Full Bench of the High Court for decision and now
the matter is before this Hon’ble Court.
14
SUMMARY OF ARGUMENTS
FIRST ISSUE: WHETHER THE WRIT PETITION IS MAINTAINABLE IN THE LIGHT OF THE OBJECTION RAISED
BY THE RESPONDENT?
That there is presumption of constitutionality of the Section 1(5)of the ESI, Act and there is
no violation of fundamental rights of the petitioner, since ESI, Act is a beneficial legislation
which has to be given a purposive interpretation benefitting the employees and since no
employee has been added as a party, hence the present writ petition is liable to be dismissed.
SECOND ISSUE: WHETHER SECTION 1(5) OF THE ACT TO THE EXTENT OF ‘OR OTHERWISE’ IS
CONSTITUTIONAL OR NOT?
From the submissions tendered above it can be concluded that the words ‘or otherwise’
confers excessive delegation on the Karunaadu Govt. which is violative of the equality clause
under Art. 14 of the Constitution. Also, it is clearly established that if there is no reason
attached to the precedent then the same is said to be passed sub silentio which is an
exception to the doctrine of precedents under Art.141 of the Constitution.
THIRD ISSUE: WHETHER THE NOTIFICATION ISSUED UNDER THE SECTION 1(5) IS VALID OR NOT?
In the light of the aforementioned contentions it is firmly established that the notification is
invalid, as it is encroaching the rights guaranteed under Part III of the Constitution. Further,
it is contrary to the proviso of section 1(4) of the ESI Act which prohibits the State to extend
the benefits to those establishments, belonging to or under the control of the Govt., who are
receiving similar benefits.
ARGUMENTS ADVANCED
15
1. WHETHER THE WRIT PETITION IS MAINTAINABLE IN THE LIGHT OF THE OBJECTION RAISED
BY THE RESPONDENT?
1.1 That the writ petition is maintainable before the Hon’ble High Court of Karunaadu
in the light of the objections raised by the respondents.
1.1.1. It is submitted that in the instant case the petitioner is a premier educational institution
established over a century ago and theState of Karunaadu by extending the provisions
of the Employee’s State insurance Act, 1948 (hereinafter referred as ESI, Act)has
violated the fundamental rightof the petitioner provided under Article 19 (1) (g) of the
Constitution of Dharath which provides for the right to practice any profession or to
carry on any occupation or trade or business.2
1.1.2. It is very pertinent here to take into account the case of T.M.A. Pai Foundation v.
State of Karnataka,3where in the Apex court has held thatIt held that the right to run
educational institutions was a "fundamental right to occupation" protected by Article
19 (1) (g) of the Constitution and extending of such provision cannot be said to have
done under the purview of Article 19 (6)of the Constitution of Dharath. It is therefore
submitted that even though the State is empowered to make any law in the interest of
general public and impose reasonable restriction on the right conferred under Article
19 (1) (g), but in the instant case the extension of the ESI, Act is not reasonable since
the petitioner who is employer in this case is already extending the similar and
superior benefits to the employees concerned and it is very evident from the facts that
the service conditions of the employees were governed by the several rules,
regulations and policies by the government from time to time4, hence it is submitted
that it is unreasonable and unnecessary to extend the provision of the impugned Act,
therefore it is liable to be struck down.
1.1.3. It is submitted that the term reasonableness is very significant to determine the
synchronization of the restriction imposed with the entire fabric of Fundamental
Rights.5 It is further submitted that a restriction is unreasonable if it takes away within
2
Sodan Singh v. New Delhi Municipal Committee ,(1989) 4 SCC 155
3
(2002) 8 SCC 481
4
Fact Sheet Vide ¶ 2
16
its ambit activities which constitute a legitimate exercise of fundamental rights

guaranteed by the Constitution.6
1.1.4. The term ‘reasonable’ enables the Court to determine not only whether the impugned
law is, in fact, in the interests of any such ground as enumerated but also whether the
benefit sought to be extended by the legislation is reasonable, having regard to the
objective test i.e. whether the restriction has a reasonable relation to the authorized
purpose7 or is an arbitrary abridgement of the freedom guaranteed by the Article under
the cloak of any of the exceptions.
1.1.5. Further in order to establish violation of Article 21, the act should be subjected to the
equality test of Article 14 and test of reasonableness under Article 19.8 Article 14
strikes at arbitrariness because it negates equality9 and permeates the entire fabric of
Rule of Law.10 Therefore, every action of the State must be guided by reason for
public good and not by whim, caprice, and abuse of power.11 Article 19 provides that a
restriction can be characterized to be reasonable if it strikes a balance between the
fundamental right and restriction imposed thereon.12
1.1.6. Hence, itis submitted that in the instant case the impugned law extending the benefits
has no nexus with the object sought, as it is already evident from the proviso to the,
Section-1(4)13 mentioned,that those establishments should be excluded or exempted
from the application of the Act, belonging to or under the control of the government
whose employees are otherwise in receipt of benefits similar or superior to the
benefits and in the instant case it is very much clear from the facts and circumstances
that the institutions which were already governed by the rules , regulations and
policies framed by the government from time to time providing better service
5
Javeed v. State of Haryana, AIR 2003 SC 3057
6
RamjiLal v. State of Uttar Pradesh, AIR 1957 SC 620
7
State of Gujrat v. MirzapurMotiKureshiKassabJamat, (2005) 8 SCC 534, 563.
8
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
9
Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021.
10
Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
11
Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514; Dolly Chandra v. Chairman Jee,
(2005) 9 SCC 779.
12
Om Kumar v. Union of India, AIR 2000 SC 3689.
13
Section 87-91A of the ESI, Act 1948
17
conditions for its employees and moreover, it was a common knowledge that the
service in the ESI hospital is pathetic, if not deplorable.14
1.1.7. It is most humbly submitted that the limitation imposed in the interests of public
order, or any other enumerated ground, to be a reasonable restriction, should be one
which has a proximate connection or nexus with public order, but not one which is
far-fetched, hypothetical, problematic or too remote,15 and the same would not fall
within the purview of reasonable restriction, and once the invasion of a right under
Article 19(1) is ex facie proved, the State must prove that such invasion is justified
under the relevant clause (2)-(6) of Art. 19. The onus is upon the State of proving to
the satisfaction of the Court that the restriction is reasonable.16
1.1.8. Moreover, these restrictions are exhaustive17 and are to be strictly construed,18 henceit,
is further submitted that under Article 13 of the Constitution of Dharath the State
cannot make any law which encroaches upon the Fundamental Rights guaranteed by
the Part III of the constitution of Dharath.
1.1.9. It is submitted that our Constitution recognizes the Principle of Proportionality,

which demands that the Legislature should strike a proper balance between the
adverse effects which the legislation may have on the rights and liabilities or interests
of the persons, keeping in mind the purpose they were intended to serve.19
1.1.10. Therefore, it is humbly submittedthat Section 1(5) does not justify the “Test of
Proportionality”. However, the provision contained in Section 1(5) is of an arbitrary
and excessive nature. It confers within its ambit such whimsical discretion so as to
choose between aided or unaided institutions and through such unfettered powers the
petitioner who is a premier educational institution running over hundreds of
educational institution from a century,20 is imposed with such a financial burden which
14
15
ArunachalaNadar, M.C.V.S. v. State of Madras, AIR 1950 SC 300
16
Saghir Ahmad v. State of U.P., AIR 1954 SC 728, 738.
17
Sakal Papers v. Union of India, AIR 1962 SC 305; Supdt. v. Ram Manohar, AIR 1960 SC 633;
KedarNath v. State of Bihar,AIR 1962 SC 955
18
Ghosh v. Joseph, AIR 1963 SC 812
19
Express Newspapers (P) Ltd. v. Union Of India, AIR 1986 SC 872
18
has a direct harm on the running of educational institutions and the same is violative
of Article 14, Article 19(1)(g) and also do not meet the paradigm of natural justice.
1.2. That, the notification issued in the instant case is in conflict with the fundamental
rights.
1.2.1. It issubmitted that when a delegated legislation is filtered through the fabric of
fundamental right and the same is found to be in conflict with the fundamental rights,
the courts has always declared such provisions as ultra vires and in the case of
Dwarka Prasad Laxmi v. State of Uttar Pradesh,21 a few provisions of the U.P. Coal
Control Order, 1953, made under Section 3(2) of the Essential Supplies Act, 1946,
were declared ultra vires as infringing Art. 19(1)(g), a Fundamental Right guaranteed
by the Constitution. The court in Rashod Ahmad v. Municipal Board,22 certain bye-
laws made by a municipality were held bad under Art. 19(1)(g). In Narendra Kumar
v. U.O.I,23 the Apex court specifically considered the point whether the question of
unconstitutionality of delegated legislation made under a valid Act could be raised or
not. The Non-Ferrous Metal Order, 1958 was made under the Essential commodities
Act, 1955 and in Hari Shankar Bagla v. State of M.P,24the validity of the Essential
Commodities Act had been upheld.25 The question in Narendra’scase now was
whether the constitutional validity of the order made under the could be canvassed
under Art. 19(1)(g). The court held that though a law may not be unconstitutional, an
order made thereunder may yet be challenged under the Constitution, because the law
could not be presumed to authorize anything unconstitutional.
1.2.2. In Air India v. NargheesMirza,26 the S.C. declared certain regulation pertaining to the
condition of service of air hostess in Air India, an undertaking of the central
government, as discriminatory under Art.14 of the Constitution. Therefore it is
submitted thatno restrictions could be imposed upon the petitioners' right to carry on
20
21
AIR 1954 SC 224, para 8
22
AIR 1950 SC 163, para 4
23
AIR 1954 SC 224, para8
24
AIR 1954 SC 465
25
Supra.
26
AIR 1981 SC 1829, para 37
19
the trade which is guaranteed under Article 19(1)(g) of the Constitution vide any
notification and that the legislation, must conform to the requirements of clause (6) of
article 19 of the Constitution.
1.2.3. It is well settled that creature of any Statute cannot consider the vires of a particular
provision in that statute or any other statute as well. Exclusive powers for such
purposes are vested under the Constitution only in the Courts exercising powers of
judicial review under Articles. 32 / 226 of the Constitution.27
1.2.4. The Apex Court in the case of Atlas Cycles Ltd. v. State of Haryana,28 where a
provision in a State Municipal Act stated that when any local area was included in a
municipality, all rules, bye-laws, orders, directions and powers” made under the Act
would apply to the local area included within the limits of a municipality, the court
held that this provision did not include, “notification” and so a tax being collected in
the municipal area under a “notification”could not be levied in the newly included
local area.Hence, it is vehemently contended that in the instant case, the notification
could not be allowed to interfere with the right guaranteed under Article 19(1)(g) of
the Constitution, by imposing such financial burden without providing any adequate
infrastructure and the same would amount to imposition of a tax without there being
any element of service.29
1.2.5. It is further submitted that in the instant case the petitioner is n premier educational
institution running hundreds of educational institution from a century is directly
affected from the notification, since the employees are already receiving a good and
robust service conditions by the rules, regulations framed by the government from
time to time and requiring the petitioner to contribute to the ESI Corporation under
Chapter IV is a clear misapplication of mind by the authorities and the same is in
conflict with fundamental rights guaranteed under the Constitution.
1.3. That, the arguments raised by the respondents regarding the non-joinder of parties is
futile and immaterial.
27
State(U.O.I) v. Ram Saran (2003) 12 SCC 578, 583-84 (para 6)
28
AIR 1972 SC 121, paras 19,20,21.
29
20
1.3.1 It is submitted that the test to determine the necessary party was neatly dealt in the
case of Deputy Commissioner of Hardoi v. Rama Krishna,30wherein the court laid
down two grounds to determine the necessary parties :
 There has to be a right of relief against such a party in respect of the matters
involved in thesuit.
 The court must not be in a position to pass an effective decree in the
absence of such a party.
1.3.2 It is submitted that generally, a party from whom no relief is sought is not a necessary
party. In Pravin v. State of Maharashtra31, the government bought a plot of land
under a statute, and afterwards, sold it to the appellant. The sale was declared invalid
by the Supreme Court. The original owner sought relief. It was held that the party
which had purchased the plot of land from the government was not a necessary party,
because no relief was claimed from it. In Gujarat SRTC v. Saroj, the legal
representatives of the deceased driver of a car which collided with a SRTC bus,
claimed compensation from the SRTC. In the present suit, it was held that the owner
of the car and its insurer were not necessary parties since no relief had been claimed
from them. Thus, the nature of relief claimed is important in deciding who is a
necessary party. Necessary parties are essentially those parties from whom the
plaintiff has claimed relief, not those parties from whom he may claim relief. Proper
parties need not be impleaded. Therefore, if complete and effective relief can be
claimed by the plaintiff from some parties, there is no need to join other parties since
other parties are not necessary parties.
1.3.3 It is humbly submitted that the Supreme Court in the landmark case of General
Manager, South Central Railway v. Siddhanti,32 has held that “there was a non-
joinder of parties. The plaintiff claimed relief against the Railways by impleading it
through its representatives. The appellants contended that the employees who were
likely to be affected by the decision had not been impleaded. Further, it was
30
1953 AIR 521, 1954 SCR 506
31
2001 CriLJ 3417
32
AIR 1974 SC 1755: (1974) 4 SCC 335
21
contended that since they were necessary parties, their non-joinder was fatal to the
petition. However, the Supreme Court turned down this preliminary objection,
holding that the relief was being claimed against the Railways only and it had been
impleaded through its representative. Employees who were likely to be affected by the
decision were at best proper parties. Their non-joinder could not be said to be fatal to
the petition. This supports the proposition that a necessary party is one against whom
relief is claimed. Those who are likely to be affected by the decision of the court do
not automatically become necessary parties. The court may adjudicate upon their
rights and liabilities, but their presence is not needed to pass an order. The purpose of
any civil suit is to grant relief to the plaintiff whose civil rights have been infringed.
Therefore, adjudication upon rights and liabilities of parties should be done only to
that extent. However, anybody whose interest is likely to be directly affected by the
decision of the court is a necessary party. But this means such a person should be
called upon to bear the relief claimed by the plaintiff.
1.3.4 It is further submitted that in the case of Rajesh Kumar Gupta v. State of U.P.,33 the
candidates who applied for selection to BTC training keeping in view the existing
government policy which the government subsequently changed and who were not
selected, challenged the change in the Govt. decision, but they did not implead the
selected candidates. The Court reasoned that, as full effect of the result would be
given only after verification of relevant testimonial, certificates and documents and
the mere publication of select list would not result in accrual of any right in favour of
selected candidates, hence non- impleadment of the selectees would not result in
dismissal of writ petition.
1.3.5 It is humbly submitted that the aforesaid ratio of the case is squarely attracted to the
instant case and mere extending of benefits provided under the ESI Act to the
employees would not result in accrual of any right unless the employees fulfill the
conditions of eligibility34 for getting those benefits. Therefore, their non- impleadment
is not detrimental to the maintainability of writ petition.
33
(2005) 5 SCC 172, 178 (para 13): AIR 2005 SC 2540;Shankarsan Dash v. U.O.I. AIR 1991 SC 1612;
SurinderShukla v. U.O.I., (2008) 2 SCC649, 653 (para 12).
34
Mentioned under Chapter V of the ESI, Act 1948
22
1.3.6 It is submitted that at best the employees can be a ‘proper party’. Though a petition
may not fail for omission to implead a ‘proper party’, the Court may, in its discretion,
add or implead a proper party, either suomotoor on the application of a party to the
writ or of such proper party himself.35
1.3.7 It is further submitted that even though a petition under Art. 226 ought not to be
dismissed where necessary parties have not been impleaded,36 in order to avoid
multiplicity of proceedings. The Court may, on its own motion, direct that such a
party be added and the rule nisi served upon him, or simply that the rule nisi be served
upon him or even that he may be allowed to be present at the hearing. In such case,
such party would be entitled to show cause or support or oppose a cause already
shown.37
1.4. Conclusion for the First Issue:
It is evident from the facts that the executive action in the instant case is violative of Article
14, Article 19(1)(g), since the employees were already receiving similar benefits guided by
rules and regulations framed by the government and extending of the ESI Act, is a mere
misapplication of mind and the same is violative of right to occupation, trade and profession.
2. Whether section 1(5) of the Act to the extent of ‘or otherwise’ is constitutional or not?
Through the submissions tendered herein it will be established that the words ‘or otherwise’
in section 1(5) confers excessive delegation and, is unconstitutional.
2.1 That the phrase ‘or otherwise’ confers excessive delegation on the Government and
isviolative of Article 14 of the Constitution.
35
UditNarain Singh v. Board of Revenue, Bihar, AIR 1963 SC 786 (790) : 1963 Supp. (1) SCR 676.
36
PrabodhVerma v. State of U.P., (1984) 4 SCC 251 (paras 37, 38, 50, 52) : AIR 1985 SC 167.
37
Murari Mohan Deb v. Secy. To the Govt. of India, (1985) 3 SCC 120 : AIR 1985 SC 931.
23
2.1.1 It is submitted that the phrase ‘or otherwise’ confers a very wide discretion on the
government by which it can include any establishment irrespective of the nature of
activity they undertake. Further, it is to be taken into account that a completely
unlimited blanket power where there is neither any guidance to the delegate, nor any
procedural safeguard against improper exercise of power by the delegate, can be held
invalid as excessive delegation and violates the equality clause guaranteed under Part
III of the Constitution of Dharath.
2.1.2 It is most humbly submitted that in the landmark judgment of Maneka Gandhi v.
Union of India,38Court heavily came upon arbitrariness. The Court observed:
“….when a statute vests unguided and unrestricted power in an

authority to affect the rights of the person without lying down any
policy or principle which is to guide the authority in exercise of this
power, it would be affected by the vice of discrimination since it would
leave it open to the authority to discriminate between persons and
things similarly situated”
2.1.3 It is further submitted that a legislation which does not contain any provision which is
directly discriminatory may yet offend against the guarantee of equal protection if it
confers upon the executive or administrative authority an unguided or uncontrolled
discretionary power in the matter of application of the law.39 For, where selection is
left to the absolute and unfettered discretion of the administrative authority, with
nothing to guide or control its action, the difference in treatment rests solely on
arbitrary selection by that authority.40
2.1.4 It is most humbly submitted that the Supreme Court in Sudhir Chandra v. Tata Iron
& Steel Co. Ltd.41, has observed :
38
(1978) 2 SCJ at 350
39
State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75: Suraj Mall Mohta& Co. v. A.V. Visvanathasastri
AIR 1954 SC 545: District Registrar & Collector, Hyderabad v. Canara Bank (2005) 1SCC 496, (524-525
para 57): Air India v. NargeshMeerza (1981) 4SCC 335: Municipal Committee, Patiala v. Model Town
Residents Assn. AIR 2007 SC 2844
40
Satwant Singh Sawhney v. A.P.O. AIR 1967 SC 1836
41
AIR 1984 SC 1064,1071: (1984) 3 SCC 369
24
“…our Constitution envisages a society governed by rule of law.

Absolute discretion uncontrolled by guideline which may permit
denial of equality before law is the antithesis of rule of law.
Absolute discretion not judicially reviewable inheres the
pernicious tendency to be arbitrary and is therefore violative of
Article 14. Equality before law and absolute discretion to grant or
deny the benefit of the law are diametrically opposed to each other
and cannot co-exist”
2.1.5 It is further submitted that, in SitaramVishambharDayal v. State Of U.P.42, Supreme

Court has settled its view that no articulate norms can be laid down to bring the
provision into the colour of excessive delegation. It totally depends upon the facts and
circumstances of each individual case and also the nature of power delegated and
purpose intended to be achieved.
2.1.6 In the matter at hand, impugned provision of the Act confers a very excessive power
to government by virtue of the phrase ‘or otherwise’.Parliament has established no
criteria, no standards and has not prescribed any principle and also not stated what
facts or circumstances are to be taken into consideration to include a
particularestablishment into its ambit.Hence, this phrase becomes so vague and
general that it includes ‘any’ &in fact ‘every’ establishment into its arena, and also
when it is not possible to discover a legislative policy or guidelines for implementing
it, the statute will be held invalid as conferring unrestricted and unguided discretion43,
and hence the same would be violative of article 14.44
2.1.7 It is also submitted that Supreme Court of the Country in plethora of cases had struck
down the policy conferring excessive delegation. The similar situation was dealt in
landmark case of HamdardDawakhana v. Union ofIndia45wherein section 3 of the
Drugs and Magic Remedies Act 1954 was under challenge. Section 3 lays down the
42
AIR 1972 SC 116
43
A.N. Parasuraman v. State of T.N. AIR 1990 SC40; Krishna Mohan(P.) Ltd. V. Municipal Corporation
DelhiAIR 2003 SC 2935; Suman Gupta v. State of J&K, AIR 1983 SC 1235 ```````````````
44
Naraindas v. State of M.P. AIR 1974 SC 1232, (1974) 4SCC 788.
45
AIR 1960 SC 554
25
list of certain diseases for which advertisement were prohibited and authorized the
central government to include “any other” disease in the list. Accordingly, the Court
had struck down the provision of the Act to the extent of excessive delegation of
legislative power. It has been further held that nowhere had the legislature laid down
any policy for guidance to the government in the matter of selection of disease for
being included in the list.The lordships of the constitutional bench had reasoned that
by virtue of section 16 of the Drugs And Magic Remedies (Objectionable
Advertisements) Act, 1954, a rule making power in respect of section 3 to include “any
other disease ” has been conferred on the central government and therefore it is
delegated legislation.
2.1.8 It is very pertinent to bring to the notice of this Court that in the instant case a rule
making power has been conferred on the appropriate government by virtue of sec. 95
and Section-96 of chapter VIII in respect of sec.1 (5). Hence, it is a delegated
legislation, which is in want of guidelines, is liable to be struck down.
2.1.9 It is submitted that the constitutional bench of the Apex Court in the leading case of
VasantLalMaganBhaiSajanwala v. State of Bombay46 laid down the correct law on
the point. SubbaRao J. has observed:
“It is for a Court to hold on a fair, generous and liberal construction of
an impugned statute whether legislature exceeded such limit, but the said
liberal construction should not be carried by the courts to the extent of
always trying to discover a dormant or latent legislative policy to
sustain an arbitrary power on executive authorities. It is the duty of this
Court to strike down without any hesitation any blanket power
conferred on the executive by the legislature”
2.1.10 It is most humbly submitted that the Supreme Court of the Country in catena of cases47
have even went on saying that the vice of conferring unguided discretion on an
administrative authority, which offends against Article 14 because it empowers
AIR 1961 SC 4: (1961) 1 SCR 341

46
Kaushal P.N. v U.O.I., AIR 1978 SC 1457(paras 60-62); Avinder Singh v. State of Punjab, AIR 1979 SC
47
321 (para 9)
26
arbitrary action, is akin to the vice of unreasonableness under Article 19 as well as

excessive delegation or abdication on the part of the Legislature.
2.1.11 It is most humbly submitted that the words ‘or otherwise’ in the Act permits mischief
of unreasonable classification which is also violative of Article 14 of the Constitution.
Further, a conclusion can be drawn that by employing these words the Legislature has
vested the Govt. with unfettered discretionary power, and thus these words by no
means or by any means cannot abrogate the rights guaranteed under Part III of the
Constitution. Thus, the same is liable to be struck down.
2.2 Precedent sub-silentio.
2.2.1 It is submitted that Article 141 of the Constitution envisages the doctrine of precedent,
by which a law declared by the Apex Court is binding on all the Courts. However
there is an important exception to this doctrine i.e. precedent ‘sub- silentio’, which
means, “A legal question that was neither argued nor explicitly discussed in a judicial
decision but that seems to have been silently ruled on and might therefore be treated
as a precedent.”48
2.2.2 It is submitted that Supreme Court in Municipal Corporation of Delhi v.

GurnamKaur49, held that, 'precedents sub-silentio and without argument are of no
moment'. The courts thus have taken recourse to this principle for relieving from
injustice perpetrated by unjust precedents. A decision which is not express or is not
founded on reasons nor it proceeds on consideration of issue cannot be deemed to be
a law declared to have a binding effect as is contemplated by Article 141.Further, the
Court are not bound by which are rendered 'without any argument, without reference
to the crucial words of the rule and without any citation of the authority'.
2.2.3 It is most humbly submitted that in ShamaRao v. Union Territory of Ponducherry,50

the Court has observed:
48
Dictionary, Black’s Law ,ed. 9, p.1024
49
1989 AIR 38, 1988 SCR Supl. (2) 929
50
AIR 1967 SC 1480
27
“It is trite to say that a decision is binding not because of its

conclusions but in regard to its ratio and the principles, laid down
therein'. Any declaration or conclusion arrived without application
of mind or preceded without any reason cannot be deemed to be
declaration of law or authority of a general nature binding as a
precedent. Restraint in dissenting or overruling is for sake of
stability and uniformity but rigidity beyond reasonable limits is
inimical to the growth of law.”
2.2.4 It is further submitted thatin the light of the aforementioned decisions it can be safely
concluded that in case of Hindu Jea Band,51 the words or otherwise have been passed
sub- silentio. The decision is not accompanied by reason and is not a product of
conscious consideration of the issue and as such does not lay down any clear ratio on
the point. Hence, it cannot be deemed to be a law under Article 141 and is not
binding.
2.3 Conclusion for the second issue:

From the submissions tendered above it can be concluded that the words ‘or otherwise’
confers excessive delegation on the Karunaadu Govt. which is violative of the equality clause
under Art. 14 of the Constitution. Also, it is clearly established that if there is no reason
attached to the precedent then the same is said to be passed sub silentio which is an
exception to the doctrine of precedents under Art.141 of the Constitution.
3. WHETHER THE NOTIFICATION ISSUED UNDER THE SECTION 1(5) IS VALID OR NOT?
3.1 Through the submissions tendered herein it will be established that the said notification
issued under section 1(5) is invalid and ultra-vires to the Constitution of Dharath.
3.1.1 It is submitted that by issuing notification, the Government has exceeded its powers
conferred under Section 1(5) of the ESI Act. In other words, notification is ultra vires
and unauthorised by the said section, and therefore, invalid. This ground of attack is
sought to be sustained relying that the educational institutions not being
Hindu Jea Band, Jaipur vs Regional Director, Emplyees State Insurance Corporation Jaipur 1987 AIR
51
1166, 1987 SCR (2) 377

28
establishments similar to industrial, commercial or agricultural establishments, are not

covered under section 1(5). It has already been established in the second issue (above)
that Section 1 (5) is unconstitutional to the extent of the phrase ‘or otherwise'. Hence,
no question arises out of the fact that any establishment can be included by virtue of
the phrase “or otherwise.” Therefore the action of the Government of Karunaadu state
is per se invalid.
3.1.2 It is humbly submitted that in T.M.A. Pai Foundation v. State of Karnataka52 the
Supreme Court held that once educational institution is not an industry then it cannot
be covered by the provisions of the ESI Act. This Act is essentially covering the
factories and other industries and it will not apply to educational institutions.
3.1.3 It is most humbly submitted that the definition of an ‘industry’, carved out by triple
test, as given by Supreme Court53:
“where there is (i) systematic activity, (ii) organised by co-operation
between employer and employee, (iii) for the production and/or
distribution of goods and services calculated to satisfy human wants
and wishes, prima facie, there is an industry in that enterprise”
Essentiallyrequires employer and employee relationship. The word employee

necessarily means workman (Section 2(s) of I.D. Act 1947) in relation to Industrial
Disputes Act, 1947. Further the Court has also observed that predominant nature of the
services and the integrated nature of the departments as explained in the case of
Corporation of City of Nagpur v. Its Employees54, will be the true test. The whole
undertaking will be 'industry' although those who are not 'workmen' by definition
may not benefit by the status. Thus the meaning of employee is to be restricted to the
term ‘workman’.55
3.1.4 It is submitted that the Supreme Court of the Country came across a very important
question that whether teachers in educational institution can be brought within the
52
(2002) 8SCC 481
53
Bangalore Water Supply and Sewerage Board v. A. Rajappa (1978) 2 SCC 213
54
[1960] 2 SCR 942
55
Supra Note. 53
29
purview of another labour legislation i.e. Minimum Wages Act 1948 or not?
Affirming it earlier decision56, the Court in Haryana Unrecognized schools
Associations v. State of Haryana57 has held that a teacher in an educational institution
is not employed to do any skilled or unskilled manual or clerical work and therefore,
once he is not an employee within the meaning of Section 2(i) of the Minimum Wages
Act, the State Government by adding employments in educational institutions into the
schedule to the Act was not valid and it was beyond its competence. Therefore,
insofar as the teacher of the educational institution, being covered by the provisions of
the Minimum Wages Act was invalid. Here the Court also observed that ‘employee’
under Section 2(i) Minimum Wages Act 1948 was more or less at par with the
‘workman’ under section 2(s) Industrial Disputes Act 1947
3.1.5 It is further submitted that in the instant case if educational institution is to be

considered as an industry then the ESI Act will only be applicable in respect of those
employees who can be squarely covered under the definition of ‘workman’ found
under Industrial Dispute Act, 1947. As such the teachers employed by the educational
institutions cannot be called as workman within the meaning of Section-2 (s) and the
impugned notification of the Govt. of Karunaadu so far as it covers teaching staff in
its ambit, should be accordingly quashed. Imparting education which is the main
function of teachers cannot be considered as skilled or unskilled manual work or
supervisory or technical work or clerical work. The clerical work, if any they may do,
is only incidental to their principal work of teaching.
3.1.6 It is most humbly submitted that if this Court declines to make the section 1(5) to the
extent of “or otherwise” as unconstitutional then too the notification is invalid. Even if
the Act is declared as constitutional then too the notification issued thereunder may be
unconstitutional being violative of Part III of the Constitution.58 In the instant case the
notification issued by the Karunaadu Govt. is discriminatory as it is encroaching upon
the fundamental rights guaranteed by the Constitution.
56
A. Sunderambal v. Govt. of Goa, Daman & Diu (1988) 4SCC 42
57
(1996) 4 SCC 225
58
Narendra Kumar v. U.O.I., AIR 1960 SC 430 : (1960) 2 SCR 375
30
3.2 That the notification issued by the Government is arbitrary and permits unreasonable
classification, made without application of mind, and thus is violative of art. 14 of the
constitution of Dharath.
3.2.1 It is submitted that the impugned notification issued by the Karunaadu Government is
per se arbitrary and there is non-application of mind. The Govt. has extended the
benefits to the employees of aided educational institutions who have been already
brought almost at par with Govt. servants in the matter of conditions of service.59
3.2.2 It is submitted that the Supreme Court60has explained, the doctrine of classification is
only a subsidiary rule evolved by the courts to give practical content to the doctrine of
equality, over-emphasis on the doctrine of classification or anxious or sustained
attempt to discover some basis of classification may gradually and imperceptibly
erode the profound potency of the glorious content of equity enshrined in Art. 14 of
the Constitution. The over-emphasis on classification would inevitably result in
substitution of the doctrine of classification for the doctrine of equality.
3.2.3 It is submitted that in the case of Maharaja College Of Arts And Science v. State Of
Tamil Nadu,61it was contended that Govt. had extended the benefit to the unaided
institution and excluded the aided institutions, which is violative of Article 14 of
Constitution of Dharath being the unreasonable classification. This was rejected by
the Court and it was held that, employee of an educational institution is more or less
on par with the employees of Government institutions and also in respect of
conditions of service including health, insurance. Therefore, it is a valid
classification not hit by the mischief of Article 14.
3.2.4 It is further submitted that in the instant situation, the notification is entirely opposite.
It includes aided institution which are at par with the Govt. institution and excludes
unaided which is hit by the mischief of article 14 of the Constitution of Dharath as
unreasonable classification.Classification having regard to microscopic differences
is not good, to overdo classification is to undo equality.62Moreover for a
59
Manappa v. State of Karnataka. W.P. no. 104228/2013
60
L.I.C. of India v. Consumer Education and Research Centre.AIR 1995 SC1811: (1995) 5SCC 482
61
2011 (3) LNN 694 (Mad.)
31
classification to be reasonableitshould not be arbitrary and the differentia adopted as

the basis of classification must have a rational or reasonable nexus with the object
sought to be achieved by the statute in question.63
3.2.5 It is also submitted that the Apex Court in A.L.Kalra v. P & E Corpn. Of India Ltd.64
has held that to challenge an arbitrary action under Article 14, the petitionerdoes not
have to show that there is someone else similarly situated as he himself, or that he
has been dissimilarly treated. In the word of the Court:
“Article 14 strikes at arbitrariness in executive/administrative action
because any action that is arbitrary must necessarily involve the
negation of equality. One need not confine the denial of equality to a
comparative evaluation between 2 persons to arrive at a conclusion of
discriminatory treatment. An action per se arbitrary itself denies
equality of protection by law”.
3.2.6 It is submitted that in catena65 of cases the Apex Court of the country has quashedthe
Government action on the ground of its being arbitrary or discriminatory.Article 14
strikes not only at discrimination but also at arbitrariness in general. Hence, it can
be deduced in the light of the above submissions that notification is arbitrary and
permits unreasonable classification against the equality principle guaranteed under
Article 14 of the Constitution of Dharath, accordingly is liable to be quashed.
3.3 That the notification issued by the Karunaadu Govt. is contrary to the proviso of
section 1 (4).
62
RoopchandAdlakha v. D.D.A. AIR 1989 SC 307: (1989) 1 Supp. SCC 116; Deepak Sibal v. Punjab
University AIR 1989 SC 903
63
LaxmiKhandsari v. State of U.P. AIR 1981 SC 873, 891: (1981) 2 SCC 600; Baburao v. State of Bombay
Housing Board, 1954 SCR 572; Ameeronisa Begum v. Mahboob Begum AIR 1953 SC91;
RamkrishnaDalmia v. Tendolkar Justice S.R. AIR 1958 SC538; State of A.P. v. Nalla Raja Reddy AIR
1967SC 1458
64
AIR 1984 SC 1361,1367
65
Reliance Energy Ltd. v. Maharashtra State Road Development Corpn. (2007) 8 SCC 1,21, (para 36);
JitendraNath v. W.B. Board of Exam, AIR 1983 Cal 275; Dhaudaram v. State of Rajasthan AIR 1983 Raj
29; M.K. Santhamma v. State of Kerala P.S.C. AIR 1983 Ker. 84; J.P. Kulshreshtha v. Allahabad
University AIR 1980 SC 2141; Vishun das Hundumal v. State of M.P. AIR 1981 SC 1636.
32
3.3.1 It is submitted that, in order to attract the proviso of Section-1(4) of the ESI Act, two
conditions must be satisfied. Firstly, it must be a factory or establishment belonging to
or under the control of Govt.; & secondly, its employees are otherwisein receipt of
benefits substantially similar or superior to the benefits provided under the Act.
3.3.2 It is most humbly submitted that in instant case the aided educational institutions of
the petitioner are governed by the several rules, regulations and policies of the
Karunaadu Government66. And in view of the observation of the Maharaja case, there
are many ways by whichprivately-owned institutions can be under the control of the
Government.Thus it can be inferred that the state Government has control over aided
or partially aided institutions.
3.3.3 It is further submitted that theemployees in aided educational institutions arebrought

almost at par in respect of benefits provided to the State government employees and
which are substantially similar or superior to the benefits provided under the ESI
Act.Accordingly, it would not be apt to extend the provisions of the Act to the aided
institutions, and if it has been done so by the Respondent then itis the clear
contravention of the Parent Act.
3.3.4 It is most humbly submitted in Air India Statutory Corporation v. United Labour
Union And Others67, the Supreme Court has held that the Right to health and medical
care to protect health and vigour, while in service or after retirement, is a fundamental
right of a worker under Article 21. Having regard to the conditions of hospitals
established by the ESIC, which are pathetic68, no employee would wish to get himself
treated at such hospital. Keeping in view it can be said that the state by compulsorily
extending the provisions of the Act is makingthis cherished right to health under
Article 21 of the constitution, an illusion.
3.3.5 It is further submitted that the state does not have the necessary infrastructure to cater
the needs of the employees already covered. The additional coverage at a stretch in
66
67
1997 AIR SCW 430; Surjit Singh v. State Of Punjab And Others : [1996]1SCR1095; Kirloskar Brothers
Limited v. Employees' State Insurance Corporation, 1996 AIR SCW 2296
68
33
span of a month or two is impractical which would lead to situation full of chaos.
further Chapter IV of the ESI Act deals with contributions. It requires contribution
partly from employer as well from employee. The employer and employee69 both are
liable to pay additional sum as fine in case he fails to pay the premium on due date.
Hence,keeping in view the circumstances of the present case these contributions in
absence proper medical care facilities to employees is akin to imposing tax without
any service.
3.4 Conclusion for the third issue:
In the light of the aforementioned contentions it is firmly established that the notification is
invalid, as it is encroaching the rights guaranteed under Part III of the Constitution. Further,
it is contrary to the proviso of section 1(4) of the ESI Act which prohibits the State to extend
the benefits to those establishments, belonging to or under the control of the Govt., who are
receiving similar benefits.
PRAYER
Wherefore in the light of the facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed before this Hon’bleHigh Court, that it maygraciously be
pleased to–
1. Allow the instant writ petition.
Reid- Coperative Timber Works Ltd.v. ESI Corp. AIR 1970 Mad 439
69
34
2. Hold that S.1 (5) of E.S.I. Act, 1948 to the extent of ‘or otherwise’ as unconstitutional
being violative of Part III of the Constitution, in exercise of the power of judicial review
under Art. 13.
3. Issue the writ in the nature of certiorari to quash the impugned notification in so far as it
covers the aided educational institutions.
And pass any other order in favour of the Petitioner which this Court may deem fit and
proper in the circumstances of the case.
All of which is most humbly and respectfully submitted.
Sd/-
Counsels for the Petitioner
35

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IN THE HON’BLE HIGH COURT OF KARUNAADU

WRIT PETITION (CIVIL) NO. …..OF 2014

[UNDER ART. 226 OF THE CONSTITUTION OF DHARATH]

ABC EDUCATIONAL SOCIETY

M .S. RAMAIH MEMORIAL 5THNATIONAL MOOT COURT COMPETITION, 2014

MEMORANDUM ON BEHALF OF THE PETITIONER

DRAWN AND FILED BY THE COUNSELS FOR THE PETITIONER

ABBREVIATIONS AND ACRONYMS 4

INDEX OF AUTHORITIES 5-9

2.2. Precedent sub-silentio…………………….…………………….....……………….25-26

2.3. Conclusion for the second issue…………………………………….………….26

3.4. Conclusion for third issue………………………………....…………………….32

ABBREVIATIONS AND ACRONYMS

 Employees State Insurance Act, 1948.

 Industrial Disputes Act, 1947.

 Minimum Wages Act, 1948.

 Employees State Insurance Central Rules 2010.

 Grants-in-aid code of Karunaadu Govt.

BOOKS AND COMMENTARIES

 http://www.manupatra.com(visited on......................(04-02-14, 05-02-14, 18-02-14)

 http://www.westlaw.com(visited on............................................( 05-02-14, 06-02-14)

1. A. Sunderambal v. Govt. of Goa, Daman & Diu, (1988) 4SCC 42 28

22. Ghosh v. Joseph,AIR 1963 SC 812

38. Manappa v. State of Karnataka,

71. Suresh Chandra Sharma v. Chairman,

its ambit activities which constitute a legitimate exercise of fundamental rights

1.1.9. It is submitted that our Constitution recognizes the Principle of Proportionality,

1.4. Conclusion for the First Issue:

“….when a statute vests unguided and unrestricted power in an

“…our Constitution envisages a society governed by rule of law.

2.1.5 It is further submitted that, in SitaramVishambharDayal v. State Of U.P.42, Supreme

AIR 1961 SC 4: (1961) 1 SCR 341

arbitrary action, is akin to the vice of unreasonableness under Article 19 as well as

2.2 Precedent sub-silentio.

2.2.2 It is submitted that Supreme Court in Municipal Corporation of Delhi v.

2.2.3 It is most humbly submitted that in ShamaRao v. Union Territory of Ponducherry,50

“It is trite to say that a decision is binding not because of its

2.3 Conclusion for the second issue:

1166, 1987 SCR (2) 377

establishments similar to industrial, commercial or agricultural establishments, are not

Essentiallyrequires employer and employee relationship. The word employee

3.1.5 It is further submitted that in the instant case if educational institution is to be

classification to be reasonableitshould not be arbitrary and the differentia adopted as

3.3.3 It is further submitted that theemployees in aided educational institutions arebrought

3.4 Conclusion for the third issue:

1. Allow the instant writ petition.

All of which is most humbly and respectfully submitted.

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