TC- 6

SAVEETHA SCHOOL OF LAW MULTI MOOT 2022

BEFORE HON’BLE HIGH COURT OF ESTANCIA

W.P.(CIVIL)No ................ /2022

Writ Petition filed under Article 226 of Constitution of Republic of Asiana

IN THE MATTER BETWEEN

TRADE UNION (PETITIONER)

V.
THOR INDUSTRIAL SECTOR (RESPONDENTS)

MOST REVERENTLY SUBMITTED BEFORE THE HON‟BLE CHIEF JUSTICE AND

HIS OTHER COMPANION JUDGES OF THE HIGH COURT OF ESTANCIA
 COUNSEL ON BEHALF OF THE RESPONDENT

TABLE OF CONTENTS

Table of Contents .................................................................................................................... 1

List of abbreviations ............................................................................................................... 2
Index of Authority ................................................................................................................... 3
Statement of Jurisdiction ........................................................................................................ 5
Statement of facts.....................................................................................................................6
Issues raised.............................................................................................................................. 8
Summary of Arguments ........................................................................................................ 9
Arguments Advanced ............................................................................................................ 10
1. Whether the petition filed before the Hon'ble High Court of Estancia is
maintainable? ............................................................................................................ 10
2. Whether there has been any violation of standards set for the workers in the
industry? .................................................................................................................... 12
3. Whether the act of strike by workers & the lock out to counter is
justifiable? .................................................................................................................. 14
4. Prayer ......................................................................................................................... 17

1
 LIST OF ABREVIATIONS

& And

AIR All India Reporter

Anr. Another

Cl. Clause

Edn. Edition

Ors. Others

P. Page

Pp. Pages

v./ vs. Versus

Vol. Volume

SC Supreme Court

SCC Supreme Court Cases

Hon‟ble Honorable

Sec. Section

Co. Company

Pvt. Private

LLJ Labour Law Journal

UoI Union of Indian

HC High Court

Art. Article

Sec. Section

2
 INDEX OF AUTHORITY

STATUTES REFERRED:

1. Industrial Disputes Act, 1947

2. Factories Act, 1948
3. Maternity Benefit Act, 1961
4. Trade Unions Act, 1926
5. Indian Penal Code, 1860
6. Criminal Procedural Code, 1973
7. Private Security Agency Regulation Act, 2005
8. Payment of Wages Act, 1936
9. Employee Compensation Act, 1923
10. Industrial Employment (Standing Orders) Act, 1946
11. The Employees‟ State Insurance Act, 1948

LIST OF BOOKS REFERRED:

1. P M Bakshi , the constitution of india (18th ed.,2022)

2. V.N Shukla, the constitution of india (13th ed., 2019)
3. S.N.Misra, labour & industrial laws (29th ed., 2019)
4. H.L.Kumar, case law referencer 2007 to 2016 on labour and Industrial law (10th ed., 2016)
5. Dr. V.G. Goswami, labour & industrial laws (11th ed., 2019)
6. K.M.Pillai, labour & industrial law (16th ed., 2015)
7. S.C.Srivastava, industrial relations and labour laws (7th Ed.,2002)

WEBSITES REFERRED:

i. www. kanoon.com
ii. www.legalservicesindia.com
iii. www.legalblog.in
iv. www.judis.nic.in
v. www.lawyersclubindia.com
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vi. www.lawctopus.com
vii. www.legalindia.com
viii. www.manupatra.com
ix. www.scconline.com
x. www.legitquest.com

CASES REFFERED:

1. A.N.Z Grindlay‟s Bank v. S.N. Khathri and others, (1995) II LLJ 877 Bom.
2. A.V. Venkateshwaran v. R.S.Wadhwani, AIR 1961 SC 1906
3. Asst. Collector of Central Excise v. Jainson Hosiery, AIR 1979 SC 1889
4. Hajara v. Govt. of India, 2017 SCC Online Del 7982
5. Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166
6. L.Chandrakumar V. Union of India, AIR1997SC1125 ¶ 94
7. PTI Employees Union vs Press Trust Of India Ltd, MANU/DE/1739/2020
8. Rajendra Singh v. U.P. State Road Transport Corpn., Lucknow, 2007 LLR 790 (ALL HC)
9. Simpson & Group Companies Workers & Staff Union v. Amco Batteries Ltd,
MANU/KA/0200/1990
10. Syndicate Bank & Anr vs K. Umesh Nayak & Ors, AIR1995SC319
11. U.P. State Bridge Corporation Ltd. v. U.P. Rajya Setu Nigam Karamchari Sangh,
AIR2005SC4067

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 STATEMENT OF JURISDICTION

The petitioner have approached the Hon‟ble High Court of Estancia by filing a petition under
Article 226 of Constitution of Asiana. The respondent has appeared to this Hon‟ble High Court
of Estancia in response to the petition filed by the petitioner.

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 STATEMENT OF FACTS

1. Thor industrial sector is one of the most successful industries in Estancia, in the country of
Asiana. It contributes to the economic and social welfare of the country.

2. On 20th February 2022, Mr. Aarushi Iyer the supervisor of the industry, under the pressure
given by his superiors, asked Zara, a temporary employee working for 39 months in the
industry, to shift grain bags which were outside the warehouse of the factory.

3. Zara requested Mr. Arushi Iyer to assign her some other work. When asked, she informed
that she was three months pregnant. As he was under a lot of pressure, he coerced her to into
finishing the work assigned to her.

4. At about 5:45pm, Zara was feeling tired and was also having pain in her lower abdomen.
She approached the dispensary of the factory. The doctor at the dispensary, knowing the fact
that she was pregnant, gave her an option of either resting for an hour or taking painkiller
tablets. She decided to take tablets and went about with her normal work.

5. While she left for her residence, she got the abdominal pain again and was taken to the
hospital as it was unbearable.

6. When examined and preliminary examination conducted by the Gynecologist, Dr. Shraddha,
it was advised to admit her to the hospital. As the miscarriage process has already started, she
lost the child dur to imminent abortion. Her Gynecologist identified the reasons for miscarriage
to be the aftereffects of the painkiller tablets taken at the factory along with the heavy lifting
of bags.

7. A year before this, she had suffered a miscarriage. After a month, when her health improved,
her husband had an altercation over the miscarriage issue stating that she cannot become a
mother. She moved to her parents‟ house who were quite poor and not in a position to maintain
her. After all this difficulties, Zara United with her husband on 17th November 2021. After
recovering from the 2nd miscarriage, Zara reported for duty on 15th March 2022, which was
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23 days of her absence. Mr. Arushi Iyer informed to her that she was replaced, and her services
were not required anymore. She was not paid any of her dues.

8. This news spread across to the trade union and they decided to hold a silent strike the
premises of the factory during their emergency meeting. The negotiations between the
management and the union failed and the management imposed a lockout as the industry was
dealing with essential services.

9. When the trade union got to know about the consumption of painkillers given by the doctor
of the dispensary, who was aware of her pregnancy, the were agitated and threw stones at Mr.
Arushi Iyer‟s residence and office the next day.

10. To defend himself, Arushi Iyer hired bouncers as he had good relationship with the
President of the regional ruling political party, who used coercive forces and lathi-charge on
those workers who threw stones. This deteriorated the situation.

11.The trade union filed a suit for violation of constitutional principles under Art. 21 and
noncompliance of the standards set for the workers in factories and use of bouncers. In return
Thor Industrial Sector filed a counter suit for attack on its supervisor and illegal strike held by
the Trade Union as the industry deals with food items and is classified as essential services.

12. The court combined both the petitions and set the date for hearing on 25th August 2022.

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 ISSUES RAISED

 ISSUE 1: Whether the petition filed before the Hon'ble High Court of Estancia is
maintainable?

 ISSUE 2: Whether there has been any violation of standards set for the workers
in the industry?

 ISSUE 3: Whether the act of strike by workers & the lock out to counter is
justifiable?

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 SUMMARY OF ARGUEMENTS

ISSUE 1: Whether the petition filed before the Hon'ble High Court of Estancia is
maintainable?

It is humbly submitted before this Hon‟ble High Court that the writ petition filed by the trade
union is not maintainable as there exists an alternative remedy and there are no exceptional
circumstances pointed out..

ISSUE 2: Whether there has been any violation of standards set for the workers in the
industry?

It is humbly submitted before this Hon‟ble High Court that there is no violation of statutory
laws by the Thor Industrial Sector.

ISSUE 3: Whether the act of strike by workers & the lock out to counter is justifiable?

It is most humbly submitted that the strike conducted by the Trade Union is not justifiable and
was prima facie illegal according to the statute.

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 ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE PETITION FILED BEFORE THE HON'BLE HIGH

COURT OF ESTANCIA IS MAINTAINABLE?

1. Is the petition filed by the Trade Union maintainable?

It is humbly submitted before this Hon‟ble High Court that the writ petition filed by the trade
union is not maintainable as there exists an alternative remedy and there are no exceptional
circumstances pointed out.

1.1 Alternate Remedies have not been exhausted:

There is an alternate statutory remedy available, and no exceptional circumstances are pointed
out. The petitioners have an alternate statutory remedy available under the Industrial Disputes
Act. The High Court cannot entertain a petition which can better be decided under the IDA. In
the case of L.Chandrakumar V. Union of India, the court had emphasized on “When statutory
remedy is available for making a claim, writ petition will not be maintainable.”1 The tribunals
are competent enough to hear this particular case by the virtue of L.Chandrakumar V. Union
of India.

It is submitted to this court that alternative remedy is a bar unless there was complete lack of
jurisdiction in the officer or authority to take action impugned, however, the existence of a
competent body to hear this particular case questions the maintainability of the writ petition
filed. This Hon‟ble apex court in Asst. Collector of Central Excise v. Jainson Hosiery, where
there is an alternative statutory remedy court, should not interfere unless the alternative remedy
is too dilatory or cannot grant quick relief. Thus, the respondents humbly submit that the

1
L.Chandrakumar V. Union of India, AIR1997SC1125 ¶ 94.

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present writ petition is not maintainable on the ground that alternative remedy has not been
exhausted.2

The High Court, in the case PTI Employees Union v. Press Trust Of India Ltd, Discussed on
the issue on whether a petition involving industrial dispute has no „exceptional circumstances‟
but does have statutory remedy available, can be entertained by Court:
Bench while deciding the present matter observed that
“The law is well settled by the Supreme Court that a writ petition should not be entertained in
respect of industrial disputes for which a statutory remedy is available under the Industrial
Disputes Act unless „Exceptional circumstances‟ are made out.”3

In the U.P. State Bridge Corporation Ltd. v. U.P. Rajya Setu Nigam Karamchari Sangh, the
Court held that, “We are of the firm opinion that the High Court erred in entertaining the writ
petition of the respondent Union at all. The dispute was an industrial dispute both within the
meaning of the Industrial Disputes Act, 1947 as well as U.P. IDA, 1947. The rights and
obligations sought to be enforced by the respondent Union in the writ petition are those created
by the Industrial Disputes Act.”4

Thus, the respondents submit that the present writ petition is not maintainable for the aforesaid
reasons.

1.2 There is no violation of Fundamental Rights:

The Thor Industrial Sector has not violated any Fundamental Rights of Zara or the Trade
Union.
1. The Factory Dispensary:
In the present case, there has been no violation of Article 21 of the Constitution of Asiana. The
Industrial sector was equipped with a dispensary, and the doctor has given timely assistance to
Zara.

2
Asst. Collector of Central Excise v. Jainson Hosiery, AIR 1979 SC 1889.
3
PTI Employees Union v. Press Trust Of India Ltd, MANU/DE/1739/2020.
4
U.P. State Bridge Corporation Ltd. v. U.P. Rajya Setu Nigam Karamchari Sangh, AIR2005SC4067.
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 2. Voluntary consumption of Painkillers:
There was timely assistance provided to Zara when she approached the dispensary. The doctor
at the dispensary has given Zara the option of taking rest for an hour or taking the painkillers
with the knowledge of her pregnancy. A medical practitioner in a factory‟s dispensary is
appointed under Section 10 of the Factories Act, and a qualified medical practitioner is aware
of the dosage of Painkillers to administer to a Pregnant woman. This proves that Zara
negligently took an excessive dosage than recommended, which lead to the imminent
miscarriage.

3. There is no violation of Principles of Natural Justice:

Zara was absent during the time of her replacement. There was no notice of her absence and
thereafter, cannot claim the Principles of Natural Justice. The retrenchment of Zara was valid
as she was not consistently present for one hundred and sixty days before her dismissal. She
had a miscarriage prior to the current incident where she was sent back to her parent‟s house
for over 10 months.

Hence, the respondent submits to this High court that when statutory remedy is available for
making a claim, writ petition will not be maintainable.

ISSUE 2: WHETHER THERE HAS BEEN ANY VIOLATION OF STANDARDS SET

FOR THE WORKERS IN THE INDUSTRY?

It is humbly submitted before this Hon‟ble High Court that there is no violation of statutory
laws by the Thor Industrial Sector.

2.1 Eligibility for Maternity Benefit Act, 1961

Section 5 of the aforesaid Act states the Right to payment of maternity benefit5 Clause (2) of
which reads,

5
Maternity Benefit Act, 1961
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“No woman shall be entitled to maternity benefit unless she has actually worked in an
establishment of the employer from whom she claims maternity benefit for a period of not less
than one hundred and sixty days in the twelve months immediately preceding the date of her
expected delivery...”

Based on the above provision, a woman who worked not less than one hundred and sixty days
immediately preceding her leave shall be entitled to the benefits under this Act. Here in the
present case, Zara did not fulfil the basic eligibility criteria as she was irregular for work
without giving reasonable notice.

2.2 Statutory working conditions were followed by Thor Industrial Sector

Thor Industrial Sector was equipped with a medical dispensary as mandated under section 45
of the Factories Act, 1948. The doctor, in the present case had given Zara, the option of either
resting for an hour or taking pain killers. Keeping in mind that she was pregnant, he gave pain
killers which were not detrimental for her health and the health of the foetus. There are safe
pain killers that are available for subsiding the pain which were prescribed by him. And it
cannot be alleged that the miscarriage happened because of the painkillers that were taken by
her. The doctor prescribed the pain killers in bona- fide intention. She chose to do the work
instead of taking rest for an hour.

2.3 Mala-fide intention on behalf of Trade Union

In the case of Syndicate Bank & Anr vs K. Umesh Nayak & Ors6, the Hon‟ble Supreme Court
held that, Stoppage of work in any manner is not economically feasible to the industry. Here,
the trade union went on a strike that was solely based on an individual

6
AIR1995SC319
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ISSUE 3: WHETHER THE ACT OF STRIKE BY WORKERS & THE LOCK OUT TO
COUNTER IS JUSTIFIABLE?

It is most humbly submitted that the strike conducted by the Trade Union is not justifiable and
is prima facie illegal according to the statutory.

3.1 The strike was done in Mala-fide intention

The strike of the Trade Union was done in Mala-fide intention as the strike was for an
individual who had no Fundamental Rights infringed. In the case of Kameshwar Prasad v.
State of Bihar, the Supreme Court held that, It is not a Fundamental Right of the employees
to resort to strike constituting under Art. 19. Government employees have no legal or moral
rights to go on strikes7

3.2 No Immunity for the Trade Union

Section 18(1) of the Trade disputes Act states, Immunity from civil suit in certain cases.—
(1) No suit or other legal proceeding shall be maintainable in any Civil Court against any
registered Trade Union or any 1[office-bearer] or member thereof in respect of any act done in
contemplation or furtherance of a trade dispute to which a member of the Trade Union is a
party on the ground only that such act induces some other person to break a contract of
employment, or that it is in interference with the trade, business or employment of some other
person or with the right of some other person to dispose of his capital or of his labour as he
wills.8 The above provision does not withhold for the Trade Union as there was no breach of
contract of employment by the respondents.

3.3 Strike is Illegal

The strike can be said illegal on various grounds;

Section 22(1) of the Industrial Disputes Act, 1947 reads,

7
Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166.
8
Section 18(1) of the Trade disputes Act, 1926.
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“Prohibition of strikes and lock- outs.-
(1) No person employed in a public utility service shall go on strike in breach of contract-- (a)
without giving to the employer notice of strike, as herein- after provided, within six weeks
before striking; or
(b) within fourteen days of giving such notice; or
(c) before the expiry of the date of strike specified in any such notice as aforesaid; or
(d) during the pendency of any conciliation proceedings before a conciliation officer and seven
days after the conclusion of such proceedings. With consideration of the above section, here
the Trade Union did not give a prior notice of six weeks before the strike.”9

Section 24(1)(i) of the Industrial Disputes Act, 1947 reads,

“Illegal strikes and lock- outs.
- (1) A strike or a lock- out shall be illegal if–
(i) it is commenced or declared in contravention of section 22 or section 23...”10
On the basis of the above provision, the strike of the Trade Union is said to be illegal.

In the case of A.N.Z Grindlay’s Bank v. S.N. Khathri and others, the Hon‟ble High Court,
following the decision of Syndicate Bank v. K. Umesh Nayak11 held that, once strike is held
to be illegal , question of justifiability does not arise. Stoppage of work in any manner is not
economically feasible to the industry12. Here, the trade union went on a strike that was solely
based on an individual dispute. They had a malafide intention to do so. The cessation or
stoppage of work whether by the employees or by the employer is detrimental to the production
and economy and to the well-being of the society as a whole. It is for this reason that the
industrial legislation, while not denying the right or workmen to strike, has tried to regulate it
along with the right of the employer to lock-out and has also provided a machinery for peaceful
investigation, settlement, arbitration and adjudication of the disputes between them. Where
such industrial legislation is not applicable, the contract of employment and the service rules

9
Section 22(1) of the Industrial Disputes Act, 1947
10
Section 24(1)(i) of the Industrial Disputes Act, 1947.
11
Syndicate Bank v. K. Umesh Nayak
12
A.N.Z Grindlay‟s Bank v. S.N. Khathri and others, (1995) II LLJ 877 Bom.

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and regulations many times, provide for a suitable machinery for resolution of the disputes.
When the law or the contract of employment or the service rules provide for a machinery to
resolve the dispute, resort to strike or lock-out as a direct action is prima facie unjustified. This
is, particularly so when the provisions of the law or of the contract or of the service rules in
that behalf are breached. For then, the action is also illegal. In the aforesaid cases, it is proved
that the Strike is illegal and is not justifiable.

3.4 Lockout is justifiable:

The lockout is justifiable as there was an illegal strike. Section 24(3) reads, “A lock- out
declared in consequence of an illegal strike or a strike declared in consequence of an illegal
lock- out shall not be deemed to be illegal.”13 On the grounds of the above said provision, here
in case at instant, the lockout was imposed as the Trade Union did not take the negotiations
well. The strike by the Trade Union is illegal, the lockout declared as a consequence of it is
considered legal.

13
Section 24(1)(i) of the Industrial Disputes Act, 1947.

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 PRAYER

In the light of fact cited issues raised, arguments advanced, and authority cited, and in the era
where the country claims to be a secular one where people free to practice, profess and
propagate their religion, the Petitioner humbly submit that this High court in the interest of
justice may graciously be pleased to declare:

a. That the petition before this court shall not be maintainable as there are alternative ways
to settle the dispute.
b. The Writ Petition be dismissed with exemplary costs
c. That the respondent had complied with the set standards for the workers in factories
and use of bouncers was justifiable for self-defence
d. That the Strike conducted by the Trade Union shall be held illegal

AND/OR

pass any other order that the Hon‟ble court may deem fit in the favor of the respondent to
meet the ends of equity, justice and good conscience.

All of which is humbly prayed.

Respectfully submitted

Counsel on behalf of the Respondent

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