Labour Strike Petitioner Memorial

3rd SURANA & SURANA RAFFLES UNIVERSITY LABOUR LAW MOOT COURT
COMPETITION 2019
1
COMPETITION 2019
TEAM CODE:
IN THE HONOURABLE HIGH COURT OF UTTARNAGAR
— IN THE MATTER OF —
TRADE UNION
(PETITIONER)
vs.
MALAL INDUSTRY
(RESPONDENT)
(UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, 1950)
MEMORANDUM ON BEHALF OF THE PETITIONER
-DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONER-
3rd SURANA & SURANA RAFFLES UNIVERSITY LABOUR LAW MOOT COURT COMPETITION 2019
11th October 2019 – 13th October 2019
2
COMPETITION 2019
TABLE OF CONTENTS
 TABLE OF CONTENTS ...................................................................................................... 3
 INDEX OF AUTHORITIES ................................................................................................. 5
 LIST OF ABBREVIATIONS ............................................................................................... 9
 STATEMENT OF JURISDICTION .................................................................................. 10
 SYNOPSIS OF FACTS ....................................................................................................... 11
 STATEMENT OF ISSUES ................................................................................................. 12
 SUMMARY OF ARGUMENTS ........................................................................................ 13
 ARGUMENTS ADVANCED.............................................................................................. 14
1. Whether the petition filed by Malal Industrial Sector is maintainable in the Hon’ble
High Court of Uttarnagar? .................................................................................................... 14
1.1 Maintainability of the petition ........................................................................................ 14
1.2 Lockout justified or not ................................................................................................... 15
1.3 Attack on supervisor ....................................................................................................... 16
2. Whether Shabina is entitled to get the compensation under the provision of the
Maternity Benefit Act, 1961 and who would be liable to pay compensation in order to
ensure the rights of claim compensation for the sufferings caused due to harsh negligence
and unlawful act of the industry? .......................................................................................... 18
2.1. Whether a person who is working in industry for 3 years, can be denied the rights as
defined under section 9 of the Maternity Benefit Act, 1961 (i.e. leave for miscarriage) &
then financial assistance? ...................................................................................................... 20
2.2. Whether there has been negligence on the part of the trainee doctor of the dispensary
of the factory by giving pain killer pills which further accelerated the process of
miscarriage. Who would be liable to pay compensation? Whether the act of the supervisor is
valid or not? .......................................................................................................................... 26
2.3. Whether Shabina has the right to claim compensation for the sufferings caused due to
the harsh, negligent and unlawful act of the industry? ......................................................... 32
3. Whether there has been a violation of the right to life enshrined under Article 21 of
The Constitution of India, 1950 or not? ................................................................................ 35
3
COMPETITION 2019
3.1 Right To Life And Personal Liberty under Article 21 The Constitution Of India has been
violated by the Malal Industry. ............................................................................................. 35
3.2 Violation of principles of natural justice: ....................................................................... 36
3.3 Violation of Right to Livelihood..................................................................................... 37
3.4 Violation of Right to healthy working place................................................................... 38
4. Issue 4: Whether miscarriage can become a reason for justifying Triple Talaq. ...... 40
 PRAYER ............................................................................................................................... 43
4
COMPETITION 2019
INDEX OF AUTHORITIES
STATUTES REFERRED
1. CONSTITUTION OF INDIA, 1950.

2. FACTORIES ACT, 1948.
3. INDIAN PENAL CODE, 1860.
4. INDUSTRIAL DISPUTE ACT, 1947.
5. MATERNITT BENEFIT ACT, 1961.
6. TRADE UNIONS ACT, 1926.
LEXICONS
1. A. G. Bryan, Black’s Law Dictionary’, 9th Ed. 2009, West Group.

2. P. Ramanathan., ‘Concise Law Dictionary’, 3rd Ed. Rep. 2006, Wadhwa, Nagpur
3. Wharton’s Law Lexican, 15th Edn. 2009.
4. B.A. Garner, Black’s Law Dictionary, 8th Ed. (2004).
ELECTRONIC MEDIUM
1. https://www.scconline.com
2. https://edoc.hu-berlin.de/bitstream/handle/18452/9167/54.pdf?sequence=1
3. https://www.al-islam.org
4. https://www.indialawlibrary.com
5. https://www.islamqa.org
6. https://labour.gov.in
7. https://www.lexisnexis.com
8. http://www.ilo.org
9. http://www.lexis-nexisindia.com
5
COMPETITION 2019
LIST OF BOOKS REFERRED
1. Arun Monappa, Ranjeet Nambudiri, Industrial Relations and Labour Laws, 2nd
Edition(2017).
2. Avtar Singh, Harpreet Kaur, Introduction to Labourand Industrial Law, 1st Edition
(2017).
3. Dinshaw Fardunj Mulla, Mulla’s Principles ofMohamedan Law, 22nd Edition(2017)
4. Durga Das Basu – Commentary on Constitution of India, 8th Edition.
5. Goswami. V.G. – Labour and Industrial Laws, 8th Edition.
6. M.P. Jain, India Constitutional Law, 7th ed. (2018).
7. P.L. Malik’s – Handbook of Labour & Industrial Law, 13th Edition.
8. Piyali Ghosh & Shefali Nandan, Industrial Relations and Labour Laws, 2nd Edition
(2017).
9. V.N. Shukla’s, Constitution of India, 11th ed. (2008).
CASES REFERRED
1. A.Yousuf Rawther v. Sowramma, AIR 1971 Ker 261

2. Aarti Gupta (Mrs.) v. Rail India Technical and Economical Services Limited and Ors.
2005 (84) DRJ 53.
3. Abbott India Ltd. and Ors. v. All India Abbott Employees Union and Ors, 2011(131)
FLR 956.
4. Bandhua Mukti Morcha v. Union of India & Ors. (1997) 10 SCC 549
5. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.
6. Bata Shoe Workers' Union (Regd.) v. Presiding Officer, C.W.P No.7243 of 2002
(O&M).
7. Bharat Petroleum Corporation Ltd. v. Petroleum Employees Union & Ors 2001 (2)
BomCR 447
8. Board of Trustees of the port of Bombay v. D.R. Nadkarni, (1983) 1 SCC 124,
6
COMPETITION 2019
9. Central Provinces Transport Service Ltd. v. Raghunath Gopal Patwardhan 1957-I-LLJ-
27-SC.
10. Chairman Railway Board v. Chandrima Das, (2000) 2 SCC 465;
11. Chairman Railway Board v. Chandrima Das, AIR 2000 SC 988;
12. Charles Sobraj v. Supdt. Central Jail, Tihar, AIR 1978 SC 1514
13. Consumer Education & Research Centre and others v. Union of India and others
(1995) 3 SCC 42.
14. Cox and Kings Limited v. Their Employees, (1910) I KBP 506.
15. D.K Basu v. State of West Bengal, AIR 1997 SC 610;
16. Delhi Transport Corporation v DTC Majdoor Congress, 1991 AIR 101.
17. Dr.Laxman Balkrishna Joshi v. Dr .Trimbak Bapu Godbole and another, AIR 1969 SC
128.
18. Francis Coralie v. Adminstrator, Union Territory of Delhi, AIR 1981 SC 746 41.
19. Gujarat Steel Tubes Ltd. and others v. Gujarat Steel Tubes Mazdoor Sabha and others,
MANU/SC/0369/1979 : 1980 (1) LLN 230 (SC).
20. India General Navigation and Railway v. Their Workmen MANU/SC/0122/1959: (1960)I
LLJ 13-SC.
21. India General Navigation and Railway v. Their Workmen, 1960 SCR (2) 1.
22. Iqbal Bano v State of UP AIR 2007 SC 2215.
23. Jagdish Narain Sharma and another v. Rajasthan Patrika Ltd. and another, (1994) II LLJ
900-Raj.
24. Karak Singh v. State of U.P., AIR 1964 (1) SCR 332.
25. Kendriya Vidhyalya Sanghathan and Anr. v. S.C. Sharma (2005) II-LLJ-153-SC.
26. M.C Mehta v. Union of India, (2003) 10 SCC 561.
27. Management of Kallayar Estate, Jay Shree Tea and Industries Ltd. v. Chief Inspector of
28. Plantations and Anr, 1999 (81) FLR 639.
29. Maneka Gandhi v. Union of India, (1978) 1 SCC 248 42.
30. Maneka Gandhi v. Union Of India, 1978 AIR 597.
31. Masroor Ahmed v. State (NCT of Delhi) and Anr., 2008 (103) DRJ 137.
32. Mohammed Haneefa v Pathummal Beevi 1972 KLT 514.
33. Municipal Corporation Of Delhi v. Female Workers (Muster Roll) and Another, Special
7
COMPETITION 2019
34. Leave Petition (civil) 12797 of 1998.
35. Neera Mathur v. Life Insurance Corporation of India, 1992 AIR 392.
36. Olga Tellis v Bomaby Municipal Corporation, AIR 1986 SC 180
37. P.S.R Sadhanantham v Arunachalam, AIR 1980 SC 856.
38. Peoples Union for Democratic Rights v. Union Of India, 1982 AIR 1473 .
39. Prem Lala Nahata and Anr. v. Chandi Prasad Sikaria (2007) 2 SCC 551.
40. PUCL v Union of India, AIR 1997 SC 568.
41. R. Autyanuprasiv. Union of India, (1989)1 Suppl. SCC 251.
42. Ram Khilari and Ors. v. Union Of India And Ors, AIR 1976 Raj 219.
43. Rudul Sah v. State of Bihar, 1983(3) SCR 508.
44. Rukia Khatun v. Abdul Khalique Lasker, (1981) 1 GLR.
45. S.S. Shetty v. Bharat Nidhi Ltd, 1958 SCR 442 .
46. Shamim Ara v State of UP, AIR 2002 SC 3551.
47. State of U.P v. Charan Singh, Civil Appeal no. 2381 of 2007.
48. Swadesh Industries Limited v. Their Workmen, (1960) AIR SC 1250.
49. Syndicate Bank v. K. Umesh Nayak, 1994 2 CLR 753.
50. Unnikrishnan v. State of Andhra Pradesh, AIR 1993 SC 2178.
51. Vikrant Deo Singh Tomar v. State of Bihar, (1988) Suppl.SCC 734.
52. Vishakha v. State of Rajasthan, AIR 1997 SC 3011.
53. Workmen of Indian Express Newspapers Pvt. Ltd. v. Management of Indian Express Pvt.
Ltd, 1970-II-LLJ-132-SC.
54. Workmen v. Dharampal Prem Chand, 1956 SCR 956.
8
COMPETITION 2019
LIST OF ABBREVIATIONS
& 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 Honourable
Sec. Section
Co. Company
Pvt. Private
LLJ Labour Law Journal
UoI Union of India
HC High Court
Art. Article
UP Uttar Pradesh
All. Allahabad High Court
9
COMPETITION 2019
STATEMENT OF JURISDICTION
It is most humbly and respectfully submitted that the Petitioner has approached this Hon’ble
High Court under Article 2261 of the Constitution of India and accepts that this Hon’ble court
has the inherent jurisdiction, power and authority to try, entertain and dispose off the present
petitions clubbed together by virtue of Article 226 of The Constitution of India. The petitioner
sets forth the facts and laws on which the claims are based.
1
Article 226 in the Constitution of India
226. 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
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other
manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without
(a) furnishing to such party copies of such petition and all documents in support of the plea for
such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the
vacation of such order and furnishes a copy of such application to the party in whose favour
such order has been made or the counsel of such party, the High Court shall dispose of the
application within a period of two weeks from the date on which it is received or from the date
on which the copy of such application is so furnished, whichever is later, or where the High
Court is closed on the last day of that period, before the expiry of the next day afterwards on
which the High Court is open; and if the application is not so disposed of, the interim order
shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand
vacated.
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred
on the Supreme court by clause ( 2 ) of Article 32.
10
COMPETITION 2019
SYNOPSIS OF FACTS
 FACTUAL BACKDROP
1. Shabina, resident of District Teemrana in the state of Uttar Nagar who is married to
Sulaiman is working in Malal Industries for 3years on probation.
2. Work assigned by supervisor to which she refused stating she is pregnant.
3. Shabina on feeling tired went to dispensary where she was advised by the doctor to either
take some painkillers or rest for an hour.
4. While she left for home, felt an unbearable pain due to which her husband and mother in
law took her to the hospital. By then the process of miscarriage already started and she
lost the child due to threatened abortion. The reason for such abortion found out to be
lifting of heavy bags and coupled effect of the pills.
5. This was her second miscarriage, after she regained health, her husband gave her triple
talaq stating she could not become a mother.
 PROCEDURAL BACKDROP
1. Shabina was replaced and was not paid any of her dues leading to the strike by the
registered trade union.
2. The negotiations failed and a lockout was declared. The union members got agitated on
finding that non maintenance of standards in the factory led to the miscarriage and
revolted outside supervisor's house in response to which supervisor lathi charged
the workers with the help of bouncers.
11
COMPETITION 2019
STATEMENT OF ISSUES
 Whether the petition filed by Malal Industrial Sector is maintainable in the Hon’ble
High Court of Uttarnagar?
.1. Maintainability of the Petition

.2. Lockout justified or not
.3. Attack on Supervision
 Whether Shabina is entitled to get the compensation under the provision of the
ensure the rights of claim compensation for the sufferings caused due to harsh
negligence and unlawful act of the industry?
.1. Whether a person who is working in industry for 3 years, can be denied the rights as
defined under section 9 of the Maternity Benefit Act, 1961 (i.e. leave for miscarriage)
and then financial assistance?
.2. Whether there has been negligence on the part of the trainee doctor of the dispensary of
the factory by giving pain killer pills which further accelerated the process of
miscarriage. Who would be liable to pay compensation? Whether the act of the
supervisor is valid or not?
.3. Whether Shabina has the right to claim compensation for the sufferings caused due to
the harsh, negligent and unlawful act of the industry?
 Whether there has been a violation of the right to life enshrined under article 21 of the
constitution of india, 1950 or not?
.1. Right to Life and Personal Liberty under Article 21 the Constitution of India has been
violated by the Malal industry.
.2. Violation of Principles of Natural Justice
.3. Violation of Right to Livelihood
.4. Violation of Right to Healthy Working Place
 Whether miscarriage can become a reason for justifying Triple Talaq or not?
12
COMPETITION 2019
SUMMARY OF ARGUMENTS
 Whether the petition filed by Malal Industrial Sector is maintainable in the Hon’ble
High Court of Uttarnagar?
The Petition filed by Malal Industrial Sector is not maintainable as the strike held by Trade
union is justified. Trade union complied with all the provisions of the Industrial Tribunal
Act and ultimately the strike was conducted peacefully. The Lockout by the Management of
Malal Industry is not justified and legal. The management should not have hired bouncers
who used lathi charge as a measure to prevent Union members.
 Whether Shabina is entitled to get the compensation under the provision of the
ensure the rights of claim compensation for the sufferings caused due to harsh
negligence and unlawful act of the industry?
In this Hon’ble High Court Shabina could be allowed to get the compensation with reference
to the Maternity Benefit Act which orders to reduce the disparities relating to Maternity
Provisions under the various States and Central Acts. The Maternity Benefit Act , 1961 aims
to provide all these facilities to a working woman in a dignified manner so that she may
overcome the state of motherhood honourably, peaceably, undeterred by the fear of bein
victimized for forced absence during the pre-or post-natal period.
 Whether there has been a violation of the right to life enshrined under article 21 of the
constitution of india, 1950 or not?
There has been a gross violation of Article 21 by the Industry in various forms. Initially, the
supervisor coerced Shabina, thereafter negligence of trainee doctor took a toll on her life, and
finally her replacement in Industry added peril to her misery.
 Whether miscarriage can become a reason for justifying Triple Talaq or not?
Miscarriage cannot become a reason for justifying triple talaq. Talaq is to be given only in
exceptional cases where there is no chance to reconcile marriage. Talaq is the last resort
which one should consider in case of disparities between couples. Miscarriage cannot
become a reason for justifying Triple Talaq.
13
COMPETITION 2019
ARGUMENTS ADVANCED
1. Whether the petition filed by Malal Industrial Sector is maintainable in the
Hon’ble High Court of Uttarnagar?
1.1 Maintainability of the petition
The petition filed by Malal Industrial Sector is not maintainable as the strike held by Trade
Union is legal and justified u/s 22 of Industrial Disputes Act. It is submitted that notice for strike
was duly submitted which is evident from the fact that negotiations between the management and
union took place. There could not be any negotiations without a notice. As the attempted
negotiations failed, the strike took place as contemplated.
Therefore, it is submitted that the strike commenced only after the negotiations between the
Union and management failed.2
Further, the Supreme Court held that an individual dispute relating to a dismissal of a workman
will be treated as an industrial dispute only when it is espoused by a Union or substantial number
of workmen employed in the establishment.3 Therefore, the strike in the instant case is an
industrial dispute.
It is submitted that the Union is a law abiding organization and do not believe in taking any
illegal and unjust action. It is contended that to go on strike is a statutory right available to the
workmen and Defendants have no right to prevent them in taking steps which are permissible
2
Ram Khilari And Ors. v. Union Of India And Ors, AIR 1976 Raj 219.
3
Central Provinces Transport Service Ltd. v. Raghunath Gopal Patwardhan 1957-I-LLJ-27-SC. It was reiterated in
Workmen v. Dharampal Prem Chand, 1956 SCR 956; Workmen of Indian Express Newspapers Pvt. Ltd. v.
Management of Indian Express Pvt. Ltd, 1970-II-LLJ-132-SC; Jagdish Narain Sharma and another v. Rajasthan
Patrika Ltd. and another, (1994) II LLJ 900-Raj.
14
COMPETITION 2019
under the law.4 The right of peaceful demonstration is a fundamental right of citizens, including
workers.5
The right to Union, the right to strike as part of collective bargaining and, subject to the legality
and humanity of the situation, the right of the weaker group, viz., Labour, to pressure the
stronger party viz., capital, to negotiate and render justice, are processes recognised by Industrial
jurisprudence and supported by Social Justice6
That the first and foremost requirement of a justified strike is that it should be launched only for
economic demands of workmen like basic pay, dearness allowance, leave and holidays etc ,
which are the object of a trade union . The strike should be prima facie reasonable. The demands
should not be raised frivolously or on ulterior reasons. The strikers done by the trade unions for
the employees should not go in haste.7
Therefore, in the light of all the above mentioned submissions it is asserted that the strike was
legal and justified. A strike is considered justified if it is in connection with a current labour
dispute or directed against an unfair labour practice of the employer.8
1.2 Lockout justified or not
It is further contended that the lockout by the management is illegal as it contravenes the
provisions of Sec 22, 23 and 24 of Industrial Disputes Act. There cannot be a lockout without
4
Bharat Petroleum Corporation Ltd. v. Petroleum Employees Union & Ors., 2001 (2) BomCR 447
5
Ibid
6
Gujarat Steel Tubes Ltd. and others v. Gujarat Steel Tubes Mazdoor Sabha and others, MANU/SC/0369/1979 :
1980 (1) LLN 230 (SC) : 1980 (2) SCC 593
7
Swadesh Industries Limited v Their Workmen, (1960) AIR SC 1250
8
Cox and Kings Limited v. Their Employees, (1910) I KBP 506.
15
COMPETITION 2019
giving prior notice. It is an attempt to prevent the workers of the factory from going on a strike.
If the strike was not illegal, the lockout was illegal for it did not conform to the requirements of
law.9 If a lockout is illegal, then in such a case, there is no question of the lockout being regarded
as justifiable.10
In a Constitution Bench of the Supreme Court11 reiterated the principle that was enunciated in
India General Navigation and Railway v. Their Workmen12 that a strike which is found to be
illegal cannot at the same time be categorised as justified. The law has made a distinction
between a strike which is illegal and one which is not, but it has not made any distinction
between an illegal strike which may be said to be justifiable and one which is not. The same
principle must apply in the case of a lockout. The justification, if any, for a lockout can fall for
consideration provided that the lockout is held to be legal. If a lockout is illegal, then in such a
case, there is no question of the lockout being regarded as justifiable.
Therefore, it is clear from the aforementioned contentions that the lockout was illegal and
unjustified.
1.3 Attack on supervisor
It is submitted that the workers only protested outside the house of the supervisor to show their
anger and frustration and had no ulterior motive. The act of hiring bouncers and humiliate
9
Bata Shoe Workers' Union (Regd.) v. Presiding Officer, C.W.P No.7243 of 2002 (O&M).
10
India General Navigation and Railway v. Their Workmen, 1960 SCR (2) 1.
11
Syndicate Bank v. K. Umesh Nayak 1994 2 CLR 753
12
India General Navigation and Railway v. Their Workmen MANU/SC/0122/1959 : (1960)ILLJ13SC
16
COMPETITION 2019
workers by using coercive force and lathi charge was not required. 13 This act of the industry is
violative of A.21 of the Constitution. It clearly depicts the ulterior motive with a view to get rid
of the workmen who were protesting outside the house of supervisor, he had initiated the lathi
charge and misused his connects with the political party.
The ambit of Article 21 is ever expanding14 and therefore it is contended that it may be
considered in this case for the purpose of complete justice. The Apex Court has extended the
dimensions of Article 21 and made it more comprehensive by using it as a weapon for judicial
activism.15
This Article embodies constitutional value of supreme importance.16 The Supreme Court has
asserted Article 21 as the heart of the Fundamental rights.17 Article 21 imposes a positive
obligation upon the State to ensure that individuals have an opportunity for better enjoyment of
his life and dignity.18
Therefore, it is submitted that there has been a gross violation of Right to Life and Personal
Liberty of employees by the Industry. The inhuman behaviour is not justified. It is a direct
attack on the dignity of workers.
13
Abbott India Ltd. and Ors. v. All India Abbott Employees Union and Ors, 2011(131) FLR 956.
14
Francis Coralie v. Adminstrator, Union Territory of Delhi, AIR 1981 SC 746 41.
15
Maneka Gandhi v. Union of India, (1978) 1 SCC 248 42.
16
P.S.R Sadhanantham v Arunachalam, AIR 1980 SC 856.
17
Unnikrishnan v. State of Andhra Pradesh, AIR 1993 SC 2178.
18
Vishakha v. State of Rajasthan, AIR 1997 SC 3011; D.K Basu v. State of West Bengal, AIR 1997 SC 610;
Chairman Railway Board v. Chandrima Das, AIR 2000 SC 988; Olga Tellis v Bomaby Municipal Corporation,
AIR 1986 SC 180; PUCL v Union of India, AIR 1997 SC 568; M.C Mehta v. Union of India, (2003) 10 SCC 561;
Karak Singh v. State of U.P., AIR 1964 (1) SCR 332.
17
COMPETITION 2019
2. Whether Shabina is entitled to get the compensation under the provision of the
Maternity Benefit Act, 1961 and who would be liable to pay compensation in
order to ensure the rights of claim compensation for the sufferings caused due to
harsh negligence and unlawful act of the industry?
In this Hon’ble High Court Shabina could be allowed to get the compensation with reference to
the Maternity Benefit Act which orders to reduce the disparities relating to Maternity Provisions
under the various States and Central Acts. According to Sec 2 dealing with application of the act
has been substituted in 1989 with a view to extend the benefit provided to the women.
 To every establishment being a factory, mine or plantation including any such
establishment belonging to government is allowed to give the compensation.
In Sec 4(1) and (2) for the words, “Or her miscarriage”, the words, “miscarriage or medical
termination of pregnancy” has been substituted. Medical negligence on part of the trainee doctor
of the dispensary of the factory as committed a negligent act on its part by providing couple of
pain killers which further accelerated the process of miscarriage. It is basically the medical
negligence which is the misconduct by the trainee doctor by not providing enough care resulting
in breach of their duties and harming the patients which are their consumers.
According to the legal rule of vicarious liability, any employer (including hospitals) is liable for
its employees' negligence. So, the hospital is legally liable for any malpractice committed by a
physician, nurse, or other health care providers who is employed by the hospital. The Supreme
Court of India relaxed the norms for doctors with regard to criminal liability for medical
negligence by adding the requirement of “gross” medical negligence. However, they have
18
COMPETITION 2019
recognized the culpability of doctors through civil liability by awarding large compensation
awards. The recent judgment awarding compensation of Rs. 11 crore was by far the biggest
payout in the history of Indian medical negligence litigation19.
The advent of high compensation awards for medical negligence claims in India has resulted in
apprehensive conjecture regarding the impact that such awards may have on the manner in which
doctors practice medicine within India and how this consequently translates into rising costs for
patients. While some predict a consequent rise in frivolous litigation, others posit the argument
that the health sector in India needs to be regulated more stringently20 and that the fear of large
compensation awards will ensure that doctors are not negligent.21 In light of the recent judgments
offering large compensation amounts, 22it is pertinent to examine if this signals the beginning of
increasing medical negligence litigation and the practice of defensive medicine,23 and if there is a
consequent need to modify the manner in which medical negligence is currently addressed in
India.
Employer's liability for compensation for injury-If personal injury is caused to an apprentice, by
accident arising out of and in the course of his training as an apprentice, his employer shall be
liable to pay compensation which shall be determined and paid, so far as may be, in accordance
19
Balram Prasad vs. Kunal Saha, (2014) 1 SCC 384.
20
Baru RV. Challenges for regulating the private health services in India for achieving universal health care. Indian
J Public Health. 2013;57:208–11.
21
Saha K, Shetty D. Are large compensation payouts for negligence good for medicine in India? BMJ.
2014;349:g5229.
22
Nizam's Institute of Medical Sciences vs. Prashant S. Dhanaka, (2009) 6 SCC 1.
23
Sekhar MS, Vyas N. Defensive medicine: A bane to healthcare. Ann Med Health Sci Res. 2013;3:295–6.
19
COMPETITION 2019
with the provisions of the Workmen's Compensation Act, 1923, subject to the modifications
specified in the Schedule.
2.1. Whether a person who is working in industry for 3 years, can be denied the rights as
defined under section 9 of the Maternity Benefit Act, 1961 (i.e. leave for miscarriage) &
then financial assistance?
“Miscarriage or medical termination of pregnancy” have been substituted. A new section dealing
with leave for miscarriage, etc, has been substituted for section 9 of the Act and a new section,
namely, section 9 A providing leave with wages for tubectomy operation has been inserted.
Lastly in section 10 of the Act for the words, “ or miscarriage” the words, “miscarriage” medical
termination of pregnancy or tubectomy operation” have been substituted. The amendment seeks
to provide more facilities and benefits to working women. These amendments have come into
force from 1-2-1996. According to sec 9 of Maternity Benefit Act, 1961 (1) which talks about
payment of medical bonus i.e. every women entitled to maternity benefit under this Act shall
also be entitled to receive from her employer a medical bonus of 1000 rupees, if no pre-natal
confinement and post-natal care is provided for by the employer free of charge.
In the matter related to sec 9 of Maternity Benefit Act, 1961 the case which is a Parkasho Devi
v. Uttar Haryana Bijli Vitran Nigam24 by this common judgment, the afore-stated two writ
petitions are being disposed of which are directed against the orders rejecting the claim of the
petitioner for grant of maturity leave from December 12, 2002 on account of miscarriage. The
case of the petitioner is that under section 9 of the Maternity Benefit Act, 1961 (for short ‘the
Act’) she is entitled to six weeks maternity leave with wages at the rate of maternity benefit as
24
(2008) 3 PLR 248.
20
COMPETITION 2019
there is no restriction therein that the maternity benefit will be available, so far as reliance placed
by learned counsel for the petitioner upon the provisions of section 9 of the Act to content that
the petitioner is entitled to six weeks maternity leave because under this section there is no
restriction that the maternity leave benefit will be available upto two living children only is
concerned, it may be stated that it is clearly stated in section 2 of the Act that it applies, in the
first instance, to every establishment being a factory, mine or plantation including any such
establishment belonging to government and to every establishment wherein persons are
employed for the exhibition of equestrian, acrobatic and other performances. It shall also apply
to every shop or establishment within the meaning of any law for the time being in force in
relation to shops and establishments in a State, in which ten or more persons are employed, or
were employed, on any day of the preceding twelve months.
In other case Krishna Devi v. State of Haryana and Ors25 learned counsel for the petitioner
submitted that in view of the judgments of the stated court26, that such a benefit could not be
declined to an employee as the same runs contrary to the provisions of the Maternity Benefit Act,
1961. The aforesaid fact is not disputed by learned counsel for the State. For the detailed reasons
recorded in Ruksana, Pooja Sindhu27and Vibha's cases (supra)28, the writ petition is allowed. The
impugned communication dated 10.9.2014 is quashed. The petitioner is held entitled to the
benefit of maternity leave on birth of third child.
25
24 December, 2014.
26
Ruksana v. State of Haryana and Others, 2011(3) RSJ 225.
27
Pooja Sindhu v. State of Haryana and Others decided on 15-10-2012.
28
Vibha v. State of Haryana and others decided on 14-11-2014.
21
COMPETITION 2019
According to section 2 (3) of Maternity Benefit Act which states that no pregnant woman
shall, on a request being made by her in this behalf, be required by her employer to do during the
period as specified in section 4 (4) any work which is of an arduous nature or which involves
long hours of standing or which in any way is likely to interfere with her pregnancy or the
normal development of the foetus or is likely to cause miscarriage or otherwise to adversely
affect her health and according to section 3(1) right to payment of maternity benefit i.e subject to
the provision of this Act, every woman shall be entitled to, and her employer shall be liable for,
the payment of maternity benefit at the rate of the average daily wages for the period of her
actual absence, that is to say, the period immediately preceding the day of her delivery, the actual
day of her delivery and any period immediately following the day. Municipal Corporation of
29
Delhi v. Female workers (Muster Roll) and another, is a very important case where the
Supreme Court of India has examined the provisions of the Act as a whole to find out the
intention of the Parliament and the main objects of the Act. In this case female workers (Muster
Roll) engaged by the Municipal Corporation of Delhi raised the demand for grant of maternity
leave which was made available to regular female workers but was denied to them on the ground
that their services are not regularized and therefore they were not entitled to any maternity leave.
Their case was espoused by the Delhi Municipal workers union and consequently the question
“whether female workers working on muster roll should be given any maternity benefit? If so,
what directions are necessary in this regard?” was referred to the industrial tribunal for
adjudication.
The Union filed a statement of claim in which it was stated that the Municipal Corporation of
Delhi employs a large number of persons including female workers on muster roll and they are
29
2000 SCC (L&S) 331.
22
COMPETITION 2019
made to work in that capacity for years together though they are recruited against the work of
perennial nature. It was further stated that the nature of duties and responsibilities performed and
undertaken by the muster roll employees are the same as those of the regular employees. The
women employed on muster roll, which have been working with the Municipal Corporation of
Delhi for years together, have to work very hard in construction projects and maintenance of
roads including the work of digging trenches etc. but the Corporation does not grant any
maternity benefit to female workers who are required to work even during the period of mature
pregnancy or soon after the delivery of the child. It was pleaded that the female workers required
the same maternity benefits as were enjoyed by regular female workers under the Maternity
Benefit Act, 1961. The denial of these benefits exhibits a negative attitude of the Corporation in
respect of a humane problem. Article 38 provides the state shall strive to promote the welfare of
the people by securing and protecting, as effectively as may, a social, economic and political
shall inform all the institutions of national life. Section 38(2) it mandates that state shall strive to
minimize the inequality in income and endeavour to eliminate inequalities in status, facilities,
and opportunities.
Article 39 states that citizens, mens and women equally have the right to an adequate means of
livelihood that there is “equal pay for equal works for both men and women.” It has been
observed by the Supreme Court in Randhir Singh v. Union of India and others 30, that it is true
that the principle of “equal pay for equal work”, is not expressly declared by the Constitution
to be a fundamental right but it certainly is a constitutional goal. Article 39 (d) of the
Constitution proclaims “equal pay for equal work for both men and women” as directive
30
(1982) I.L.L.J 344 (SC).
23
COMPETITION 2019
principles of State policy. Equal pay for equal work for both men and women means equal pay
for equal work for everyone and as between sexes. Directive principles, as has been pointed out
in some of the judgment of Supreme Court have to be read into the fundamental rights as the
matter of interpretation. Article 14 of the Constitution enjoins the State not to deny any person
equality before law or equal protection of laws and Article 16 declares that there shall be equality
of opportunity for all the citizens in matters relating to employment or appointment to any office
under the State. These equality clauses of the Constitution must mean something to everyone. To
the vast majority of the people the equality clause of the Constitution would mean nothing if they
are unconcerned with the work they do and the pay they get. To them the equality clauses will
have some substance if equal work means equal pay. The preamble to the Constitution declares
the solemn resolution of the people of India to constitute India into a sovereign, socialist,
democratic, republic. Again the word ‘socialist’ must mean something. Even if it does mean ‘to
each according to his need’ it must atleast mean ‘equal pay for equal work’.
Maternity Benefit include Article 42 and 43 as Article 42 defines provision for just and humane
conditions of work and maternity relief: - The State shall make provisions for securing just and
humane conditions of work and for maternity relief and 43 defines living wages, etc. for
workers:- The State shall endeavour to secure, by suitable legislation or economic organization
or in any other way, to all the workers, agricultural, industrial or otherwise. Work, a living wage,
conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and
cultural opportunities and, in particular, the State shall endeavour to promote cottage industries
on an individual or co-operative basis in rural areas.
Section 3(n) defines ‘wages’ which means all remuneration paid or payable in cash to
woman.’
24
COMPETITION 2019
The supreme court thereafter considered all other provision of Maternity Benefit Act, 1961 as
contained in its different sections from 5 to section 27 and observed that the provisions of the
Act indicate that they are wholly in consonance with Directive Principle of State Policy, as set
out in Article 39 and in other articles , specially Article 42. A woman employee, at the time of
advanced pregnancy cannot be compelled to undertake hard labour as it would be detrimental to
her health and also to the health of the foetus . It is for the reason that it is provided in the Act
that she would be entitled to maternity leave for certain periods prior to and after delivery. The
Court scanned the different provision of the Act but did not find anything contained in the Act
which entitled only regular women employees to the benefit of maternity leave and not to those
who were engaged on casual basis or on muster-roll on daily wage basis.
Welfare State and secure social and economic justice to the citizens. In J.K. Cotton Spg.&
Wvg. Mills Co. Ltd. V . Labour Appellate Tribunal of India , Gajendra Gadkar , J .,
speaking for the court said ;”Indeed the concept of social justice has now become such as
integral part of industrial law that it would be idle for any party to suggest that industrial
adjudication can or should ignore the claims of social justice in dealing with industrial disputes.
The concept of social justice is not narrow, or one-sided , or pedantic , and is not confined to
industrial adjudication alone . Its sweep is comprehensive. Its is founded on the basic ideal of
social-economic equality and its aim is to assist the removal of social-economic disparities and
inequalities ; nevertheless in dealing with industrial matter, it does not adopts a doctrinaire
approach and refuses to yield blindly to abstract notion , but adopts a realistic and pragmatic
approach.”
It was rightly remarked that a just social order can be achieved only when inequalities are
obliterated and every one almost half of the segment of our society have to be honoured and
25
COMPETITION 2019
treated with dignity at place where they work to earn their livelihood. Whatever be the nature of
their duties, their avocation and the place where they work, they must be provided all the
facilities to which they are entitled . To become a mother is most natural phenomenon in the life
of a woman. Whatever is needed to facilitate the birth of a child to a woman who is in service,
the employer has to be considerate and sympathetic towards her and must realise the physical
difficulties which a working woman would face in performing her duties at the work placed
while carrying a baby in the womb or while rearing up the child after birth. The Maternity
Benefit Act , 1961 aims to provide all these facilities to a working woman in a dignified manner
so that she may overcome the state of motherhood honourably, peaceably , undeterred by the fear
of being victimized for forced absence during the pre-or post-natal period.
2.2. Whether there has been negligence on the part of the trainee doctor of the dispensary
of the factory by giving pain killer pills which further accelerated the process of
miscarriage. Who would be liable to pay compensation? Whether the act of the supervisor
is valid or not?
Negligence is the breach of a legal duty to care. It means carelessness in a matter in which the
law mandates carefulness. A breach of this duty gives a patient the right to initiate action against
negligence. Persons who offer medical advice and treatment implicitly state that they have the
skill and knowledge to do so, that they have the skill to decide whether to take a case, to decide
the treatment, and to administer that treatment. This is known as an “implied undertaking” on
the part of a medical professional. In the case of the State of Haryana vs. Smt Santra, the
Supreme Court held that every doctor “has a duty to act with a reasonable degree of care and
skill”31.
31
State of Haryana v. Smt. Santra (2000) 5 SCC 182:: AIR 2000 SC 3335.
26
COMPETITION 2019
Doctors in India may be held liable for their services individually or vicariously unless they
come within the exceptions specified in the case of Indian Medical Association v. V P Santha
32
. Doctors are not liable for their services individually or vicariously if they do not charge fees.
Thus free treatment at a non-government hospital, governmental hospital, health centre,
dispensary or nursing home would not be considered a “service” as defined in Section 2 (1) (0)
of the Consumer Protection Act, 1986.
However, no human being is perfect and even the most renowned specialist could make a
mistake in detecting or diagnosing the true nature of a disease. A doctor can be held liable for
negligence only if one can prove that she/ he is guilty of a failure that no doctor with ordinary
skills would be guilty of if acting with reasonable care33. An error of judgement constitutes
negligence only if a reasonably competent professional with the standard skills that the defendant
professes to have, and acting with ordinary care, would not have made the same error34.
In a key decision on this matter in the case of Dr Laxman Balkrishna Joshi v. Dr Trimbak
Bapu Godbole, the Supreme Court held that if a doctor has adopted a practice that is considered
“proper” by a reasonable body of medical professionals who are skilled in that particular field,
he or she will not be held negligent only because something went wrong.
32
Indian Medical Association v. VP Santha. AIR 1996 SC 550.
33
Observations of Lord President Clyde in Hunter vs Hanley (1955) SLT 213. In: Nathan HL. Medical Negligence.
London: Butterworths; 1957.
34
Whitehouse vs. Jordan (1981) 1 All ER 267 the House of Lords.
27
COMPETITION 2019
Doctors must exercise an ordinary degree of skill35. However, they cannot give a warranty of the
perfection of their skill or a guarantee of cure. If the doctor has adopted the right course of
treatment, if she/ he is skilled and has worked with a method and manner best suited to the
patient, she/ he cannot be blamed for negligence if the patient is not totally cured 36.
Certain conditions must be satisfied before liability can be considered. The person who is
accused must have committed an act of omission or commission; this act must have been in
breach of the person’s duty; and this must have caused harm to the injured person. The
complainant must prove the allegation against the doctor by citing the best evidence available in
medical science and by presenting expert opinion37.
In some situations the complainant can invoke the principle of res ispa loquitur or “the thing
speaks for itself”. In certain circumstances no proof of negligence is required beyond the
accident itself. The National Consumer Disputes Redressal Commission applied this principle in
Dr Janak Kantimathi Nathan vs Murlidhar Eknath Masane38.
The principle of res ipsa loquitur comes into operation only when there is proof that the
occurrence was unexpected, that the accident could not have happened without negligence and
35
Smt J S Paul vs Dr (Mrs) A Barkataki (2004) 10 CLD 1 (SCDRC – MEGHALAYA).
36
Dr Prem Luthra vs Iftekhar (2004) 11 CLD 37 (SCDRC – UTTARANCHAL); Mrs Savitri Devi vs Union of India
IV (2003) CPJ 164; Dr Devendra Madan vs Shakuntala Devi I (2003) CPJ 57 (NC).
37
Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole AIR 1969 (SC)128.
38
Dr Janak Kantimathi Nathan vs Murlidhar Eknath Masane 2002 (2) CPR 138.
28
COMPETITION 2019
lapses on the part of the doctor, and that the circumstances conclusively show that the doctor and
not any other person was negligent.
Medical negligence can be considered in the Section 304 of Indian Penal Code, 1860 which
provides punishment for culpable homicide not amounting to murder, wherein whoever commits
culpable homicide not amounting to murder shall be punished with imprisonment for a term
which may extend to ten years, or with fine, or with both, if the act is done with the knowledge
that it is likely to cause death. In the Santra case, the Supreme Court has pointed out that liability
in civil law is based upon the amount of damages incurred; in criminal law, the amount and
degree of negligence is a factor in determining liability. However, certain elements must be
established to determine criminal liability in any particular case, the motive of the offence, the
magnitude of the offence, and the character of the offender.
In Poonam Verma vs Ashwin Patel the Supreme Court distinguished between negligence,
39
rashness, and recklessness . A negligent person is one who inadvertently commits an act of
omission and violates a positive duty. A person who is rash knows the consequences but
foolishly thinks that they will not occur as a result of her/ his act. A reckless person knows the
consequences but does not care whether or not they result from her/ his act. Any conduct falling
short of recklessness and deliberate wrongdoing should not be the subject of criminal liability.
Thus a doctor cannot be held criminally responsible for a patient’s death unless it is shown that
she he was negligent or incompetent, with such disregard for the life and safety of his patient that
it amounted to a crime against the State 40. Sections 80 and 88 of the Indian Penal Code contain
39
Poonam Verma v. Ashwin Patel (1996) 4 SCC 332.
40
House of Lords decision in R v. Adomako (1994) 3 All ER 79.
29
COMPETITION 2019
defences for doctors accused of criminal liability. Under Section 80 (accident in doing a lawful
act) nothing is an offence that is done by accident or misfortune and without any criminal
intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with
proper care and caution. According to Section 88, a person cannot be accused of an offence if
she/ he performs an act in good faith for the other’s benefit, does not intend to cause harm even if
there is a risk, and the patient has explicitly or implicitly given consent.
Recent Supreme Court rulings has the case of Jacob Mathew vs. State of Punjab, the Supreme
Court of India delivered two different opinions on doctors’ liability. In Mohanan v. Prabha G
Nair and another 41

, it ruled that a doctor’s negligence could be ascertained only by scanning
the material and expert evidence that might be presented during a trial. In Suresh Gupta’s case in
August 2004 the standard of negligence that had to be proved to fix a doctor’s or surgeon’s
criminal liability was set at “gross negligence” or “recklessness.” In Suresh Gupta’s case the
Supreme Court distinguished between an error of judgement and culpable negligence. It held that
criminal prosecution of doctors without adequate medical opinion pointing to their guilt would
do great disservice to the community. A doctor cannot be tried for culpable or criminal
negligence in all cases of medical mishaps or misfortunes. A doctor may be liable in a civil case
for negligence but mere carelessness or want of due attention and skill cannot be described as so
reckless or grossly negligent as to make her/ him criminally liable. The courts held that this
distinction was necessary so that the hazards of medical professionals being exposed to civil
liability may not unreasonably extend to criminal liability and expose them to the risk of
imprisonment for alleged criminal negligence. Hence the complaint against the doctor must show
41
Mohanan v. Prabhaji Nair & another (2004) CPJ 21 (SC), of 2004 feb 4.
30
COMPETITION 2019
negligence or rashness of such a degree as to indicate a mental state that can be described as
totally apathetic towards the patient. Such gross negligence alone is punishable.
On September 9, 2004, Justices Arijit Pasayat and CK Thakker referred the question of medical
negligence to a larger Bench of the Supreme Court. They observed that words such as “gross”,
“reckless”, “competence”, and “indifference” did not occur anywhere in the definition of
“negligence” under Section 304A of the Indian Penal Code and hence they could not agree with
the judgement delivered in the case of Dr Suresh Gupta. The issue was decided in the Supreme
Court in the case of Jacob Mathew v. State of Punjab42. The court directed the central
government to frame guidelines to save doctors from unnecessary harassment and undue
pressure in performing their duties. It ruled that until the government framed such guidelines, the
following guidelines would prevail: A private complaint of rashness or negligence against a
doctor may not be entertained without prima facie evidence in the form of a credible opinion of
another competent doctor supporting the charge. In addition, the investigating officer should give
an independent opinion, preferably of a government doctor. Finally, a doctor may be arrested
only if the investigating officer believes that she/ he would not be available for prosecution
unless arrested.
Respondent had the knowledge of the consequences of the Act. The term ‘knowledge’ under
section 299, IPC postulates the existence of positive mental attitude and this mental condition is
the special mens rea necessary for the offence, which contemplates the likelihood of the death of
the person. The essence of knowledge lies in the awareness on part of the person 43 concerned
42
Criminal Appeal Nos 144- 145 of 2004.
43
Jaya Raj v. State of Tamil Nadu, AIR 1976 SC 1519.
31
COMPETITION 2019
with the act, indicating his state of mind44. The Apex Court in the recent case of Alister
Anthony Pareira v. State of Maharashtra45 , while explaining the said section held that
pertaining to the levying of punishment u/s 304 Part II, the prosecution need to prove the death
of person caused by the act of the accused having knowledge that such act was likely to cause
death. Further, in another case of State Tr. P.S. Lodhi Colony New Delhi v. Sanjeev Nanda 46,
Supreme Court reiterated the above reasoning as to the knowledge of the act likely to cause death
of the person in question. In the instant case, Dr. Sinha and management has evident knowledge
of the circumstances that may cause the death of the patient in reasonable proximity as they
conducted the operation with the equipments which were defective.
2.3. Whether Shabina has the right to claim compensation for the sufferings caused due to
the harsh, negligent and unlawful act of the industry?
Section 3 of Employer’s Compensation Act 1943 states Employer's liability for compensation
that if personal injury is caused to a (employee) by accident arising out of and in the course of
his employment, his employer shall be liable to pay compensation in accordance with the
provisions47. Provided that the employer shall not be so liable in respect of any injury, not
resulting in death or permanent total disablement caused by an accident which is directly
attributable to—
(i) the (employee) having been at the time thereof under the influence of drink or drugs, or
44
Joti Prasad v. State of Haryana, AIR 1993 SC 1167.
45
(2012) 2 SCC 648.
46
(2012) 8 SCC 450.
47
Maghuni Charan Dwivedi v. State of Orissa and another 19 December 1975.
32
COMPETITION 2019
(ii) the wilful disobedience of the (employee) to an order expressly given, or to a rule expressly
framed, for the purpose of securing the safety of (employees), or
(iii) the wilful removal or disregard by the (employee)of any safety guard or other device which
he knew to have been provided for the purpose of securing the safety of (employee).
Section 2(4) of employees state insurance act, 1948 means a person who is or was an employee
in respect of whom contribution are or were payable under this Act and who is by reason thereof
entitled to any of the benefit’s provided by this Act. In thye case of Bharagath Engineering v. R
Ranganayaki and another48 , where the question for decision was as to who can be treated to be
an “insured employee” under section 2(14) of the Act , one Balakrishnan (the deceased
employee) was employee with the effect from 20-5-1987. He lost his life in an accident which
was claimed to be arising out of and in the course of the employment with the employer. An
application was filed for compensation before the Commissioner for Workmen’s Compensation.
The employer questions the maintainability of the application on the ground that section 53 of
the ESI Act barred entertainment of such application. The stand was accepted by the
Commissioner for Workmen’s Compensation, holding that the deceased employee was an
insured person within the meaning of section 2(14) of the Act. However, in an appeal the High
Court held that section 53 of the Act had in application. The High Court noticed that the
registration for the purpose was granted subsequent to the death of the employee. In fact the
application for registration was submitted after the death of the employee. Against the order of
the High Court SLP was preferred stating the High Court’s approach was erroneous, because
even before an employer to pay contribution is not wiped out? Learned counsel appearing for the
48
2003 SCC (L&S)
33
COMPETITION 2019
Corporation, submitted that section 2(14) was wide enough to cover an employee who dies even
before the registration with the corporation. The benefit under the Act is more beneficial to the
employee than the compensation that could be awarded under the Compensation Act.
The Supreme Court considered the definition of the “insured person” as contained under section
2(14) of the Act and earlier rulings on the point. It was observed that the crucial expression in
section 2(14) of the Act is “are or were payable” . It is the obligation of the employer to pay the
contribution from the date the Act applies to the factory or the establishment. In ESI Corpn. V.
Harrison Malayalam (P.) Ltd.,49 the stand of the employer that employees are not traceable or
that there is a dispute about their whereabouts does not do away with the employer’s obligation
to pay the contribution.
49
1994 SCC (L&S) .1.
34
COMPETITION 2019
3. Whether there has been a violation of the right to life enshrined under Article 21
of The Constitution of India, 1950 or not?
It is humbly contended before the Court that there has been a violation of fundamental rights by
the Malal Industrial Sector. There has been a violation of the Right to Life and Personal Liberty
under Article 21 and violation of Article 14 on the grounds of unlawful dismissal from the
factory and non maintenance of standards of the factory.
Article21 occurs in Part III of the Constitution which confers certain fundamental rights. These
fundamental rights had their roots deep in the struggle for independence and, as pointed out by
Granville Austin in 'The Indian Constitution-Cornerstone of a Nation', "they were included in the
Constitution in the hope and expectation that one day the tree of true liberty would bloom in
India"50
3.1 Right To Life And Personal Liberty under Article 21 The Constitution Of India has
been violated by the Malal Industry.
It is contended that the right to receive remuneration for the days worked should be considered a
fundamental right of citizens. It has already been established that the Malal Industry is a public
company and thus, amenable to writ jurisdiction and capable of fundamental rights violation.
The denial of payment of dues and replacement without giving any reasonable justification is
depriving a person of his/her dignity.
50
Maneka Gandhi v. Union Of India ,1978 AIR 597.
35
COMPETITION 2019
It was held that the Court under Article 32 can grant compensation for the deprivation of
personal liberty, though ordinary process of court may be available to enforce the right and
money claim could be granted by this Court.51
3.2 Violation of principles of natural justice:
The industry should give reasonable opportunity to Shabina to place her reasons for her absence.
Industry violated principle of Audi Altrem partem and replaced Shabina from her place with
some other workers.52
Article 21 imposes a positive obligation upon the State to ensure that individuals have an
opportunity for better enjoyment of his life and dignity. The right to life does not mean a right to
mere survival or animal existence but living with human “dignity”53. Live with human dignity,
free from exploitation. It includes protection of 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.54
As Shabina suffered many problems related to her pregnancy her matrimonial life and also her
dues were not served to her there was a valid ground on the part of the registered Trade Union to
hold a silent strike in the premises of the factory.
51
Rudul Sah v. State of Bihar, 1983(3) SCR 508
52
Delhi Transport Corporation v DTC Majdoor Congress, 1991 AIR 101.
53
Chairman Railway Board v. Chandrima Das, (2000) 2 SCC 465; Bandhua Mukti Morcha v. Union of India, AIR
1984 SC 802.
54
Bandhua Mukti Morcha v. Union of India & Ors. (1997) 10 SCC 549
36
COMPETITION 2019
3.3 Violation of Right to Livelihood
It is a well-settled law that right to life enshrined under Article 21 of the Constitution would
include right to livelihood. The order of termination of the service of an employee/workman
visits with civil consequences of jeopardising not only his/her livelihood but also career and
livelihood of dependents.55
In the instant case the parents of Shabina are not well off to take care of her, hence the
replacement in the factory cost her a high price.
Article 21 guarantees right to life which includes right to livelihood, the deprivation thereof must
be in accordance with just and fair procedure prescribed by law conformable to Articles 14 and
21 so as to be just, fair and reasonable and not fanciful, oppressive or at vagary. The principles of
natural justice are an integral part of the guarantee of equality assured by Article 14. Any law
made or action taken by an employer must be fair, just and reasonable. The power to terminate
the service of an employee/workman in accordance with just, fair and reasonable procedure is an
essential inbuilt of natural justice. Article 14 strikes at arbitrary action. It is not the form of the
action about the substance of the order that is to be looked into.
In this case the court observed that keeping a person out of the job for a long time was arbitrary
and unreasonable. The Court held that Right to work to be a fundamental right and the employer
was held liable for his arbitrary and unreasonable action of terminating the service of the
employee and depriving him of his livelihood for a long period.56
55
Rajendra Singh vs Labour Court And Anr.,
56
State of U.P v. Charan Singh, Civil Appeal no. 2381 of 2007.
37
COMPETITION 2019
It was held that non - payment of minimum wages to the workers employed in various Projects
in Delhi was denial to them and of their right to live with basic human dignity and violative of
Article 21 of the Constitution .57
In the case of S.S. Shetty v. Bharat Nidhi Ltd58 it was held that where a master wrongfully
dismisses his servant, he is bound to pay him such damages as would compensate him for the
wrong that he has sustained. Since the employee is deprived of sustenance for himself and his
family, it has been observed that the employee should get full back-wages.
It was held by the Court that Section 12 of the Maternity Benefit Act underscores the
independent and inflexible nature of the liability to mandate that no woman employee can be
dismissed on account of her pregnancy. It is the right of the employee to get medical benefits
since such grant of maternity benefit is according to the mandate of the law. 59
Also, she was not given any of her dues which is violative of the right to remuneration. Every
employee is entitled to receive the wages earned during the course of employment. This act is
unlawful on part of the industry.
3.4 Violation of Right to healthy working place
Consumer Education & Research Centre and others v. Union of India and others60, has held that
the right to health and medical care to protect one’s health and vigour, while in service or post-
retirement, is a fundamental right of a worker under Article 21 read with Articles 39(e), 41, 43,
57
Peoples Union for Democratic Rights v. Union Of India 1982 AIR 1473 .
58
S.S. Shetty v. Bharat Nidhi Ltd, 1958 SCR 442
59
Aarti Gupta (Mrs.) v. Rail India Technical and Economical Services Limited and Ors. 2005 (84) DRJ 53.
60
Consumer Education & Research Centre and others v. Union of India and others (1995) 3 SCC 42.
38
COMPETITION 2019
48-A and all related Articles and fundamental human rights to make the life of the workman
meaningful and purposeful with dignity of person.
The scope of Article 21 is wide and far reaching. Right to healthy and safe workplace is also
covered under its ambit. Therefore, in the instant case the non maintenance of standards of
factory is gross violation of such right enshrined under the Constitution of India. Due to the
negligence of the factory Shabina faced various ordeals in her personal and professional life.
The contentions mentioned above establish that there has been a violation of Article 21 of the
Constitution of India.
39
COMPETITION 2019
4. Issue 4: Whether miscarriage can become a reason for justifying Triple Talaq.
Justice Massodi, whilst not de jure invalidating triple talak, renders it de facto ineffective by
adding a list of compulsory steps in order for a Muslim divorce to be effective:
a) Pre-divorce arbitration with representatives of both spouses’ respective families.
b) A valid reason must be put forward (and proved).
c) Subsequent divorce must be pronounced in the presence of two witnesses ('endued with
justice').
d) The pronouncement must be made during the period of tuhr (between menstrual cycles).
The decision is not far from the solution of the Masroor Ahmed case61 what is significant
however is the legal rationale, which springs from Islamic law’s internal reasoning, and is
therefore less prone to the frequent accusations of being tainted by secular legal
injunctions.
Therefore, it is submitted that the triple talaq in the instant case is not valid as it does not
conform to any of the aforementioned compulsory steps for a divorce to be effective. Hence, it
can be said that triple talaq is not justified to be given on the sole ground of miscarriage.
Over the past fifty years, various Indian judges, including many Muslims, have tried to subdue
the “monstrosity” of triple ṭalāq (Mohammed Haneefa v Pathummal Beevi62, per Justice Khalid).
Supreme Court judges have laid down the principle that a Muslim husband must have a
“reasonable cause” to divorce his wife. Additionally, such divorce must also be preceded by
61
Masroor Ahmed v. State (NCT of Delhi) and Anr., 2008 (103) DRJ 137.
62
Mohammed Haneefa v Pathummal Beevi 1972 KLT 514
40
COMPETITION 2019
reconciliation efforts by two arbiters, one from the side of each spouse, and must also be
properly evidenced in the form of a formal declaration by the husband63.
"After quoting from the Quoran and the Prophet, Dr. Galwash concludes that "divorce is
permissible in Islam only in cases of extreme emergency. When all efforts for effecting a
reconciliation have failed, the parties may proceed to a dissolution of the marriage by 'Talaq' or
by 'Khola'.64
The apex court65 relied on the judgement of Rukia Khatun’s66 case, the Division Bench stated
that the correct law of talaq, as ordained by the Holy Quran, is: (i) that 'talaq' must be for a
reasonable cause; and (ii) that it must be preceded by an attempt of reconciliation between the
husband and the wife by two arbiters, one chosen by the wife from her family and the other by
the husband from his. If their attempts fail, 'talaq' may be effected.
The SC67 relied on another judgement of Kerala High Court; it is a popular fallacy that a Muslim
male enjoys, under the Quaranic law, unbridled authority to liquidate the marriage. "The whole
Quoran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains
faithful and obedient to him, "if they (namely, women) obey you, then do not seek a way against
them." (Quaran IV:34)68
63
Shamim Ara v State of UP, AIR 2002 SC 3551; Iqbal Bano v State of UP AIR 2007 SC 2215
64
Ibid, Shamim Ara Case
65
Ibid
66
Rukia Khatun v. Abdul Khalique Lasker, (1981) 1 GLR
67
Shamim Ara v State of UP, AIR 2002 SC 3551
68
A. Yousuf Rawther v. Sowramma, AIR 1971 Ker 261
41
COMPETITION 2019
Above mentioned cases and extracts from Quran cogently specify that their must some
“reasonable cause” for the purpose of justifying talaq. Talaq is to be given only in exceptional
cases where there is no chance to reconcile marriage. Talaq is the last resort which one should
consider in case of disparities between couples.
Sabhina suffered another miscarriage; she needs support from her husband at this stage. Her
husband’s support is all one needs in case of such devastating incidence. She lost her child,
again. Her husband instead of giving her support, pronounced her talaq, he put an end to the
marriage at this critical stage. Henceforth, the talaq pronounced by Sulaiman for the reason of
miscarriage is not justified.
42
COMPETITION 2019
PRAYER
Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly
prayed that this Hon’ble Court may be pleased to hold, adjudge and declare that;
 The strike by Trade Union members is legal u/s 22 of IDA;
 Petition Filed by Malal Industry is not maintainable;
 Malal Industry is liable to pay any compensation;
 Industry acted in contravention of Article 21of the Constitution of India;
 Triple talaq is not justified on the ground of miscarriage.
Any other relief which this Hon’ble Court may be pleased to grant in the interest of Justice,
Equity and Good Conscience. All of which is respectfully submitted.
For this act of kindness, the Petitioner shall be Duty Bound Forever Pray.
All of which is respectfully submitted.

S/d_________________
(Counsel for the Petitioner)
43

Labour Strike Petitioner Memorial

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Labour Strike Petitioner Memorial

Uploaded by

Copyright:

Available Formats

3rd SURANA & SURANA RAFFLES UNIVERSITY LABOUR LAW MOOT COURT

IN THE HONOURABLE HIGH COURT OF UTTARNAGAR

(UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, 1950)

MEMORANDUM ON BEHALF OF THE PETITIONER

-DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONER-

 TABLE OF CONTENTS ...................................................................................................... 3

 INDEX OF AUTHORITIES ................................................................................................. 5

 LIST OF ABBREVIATIONS ............................................................................................... 9

 STATEMENT OF JURISDICTION .................................................................................. 10

 SYNOPSIS OF FACTS ....................................................................................................... 11

 STATEMENT OF ISSUES ................................................................................................. 12

 SUMMARY OF ARGUMENTS ........................................................................................ 13

1. CONSTITUTION OF INDIA, 1950.

1. A. G. Bryan, Black’s Law Dictionary’, 9th Ed. 2009, West Group.

LIST OF BOOKS REFERRED

1. A.Yousuf Rawther v. Sowramma, AIR 1971 Ker 261

.1. Maintainability of the Petition

1. Whether the petition filed by Malal Industrial Sector is maintainable in the

Hon’ble High Court of Uttarnagar?

1.1 Maintainability of the petition

negotiations failed, the strike took place as contemplated.

Union and management failed.2

jurisprudence and supported by Social Justice6

the employees should not go in haste.7

dispute or directed against an unfair labour practice of the employer.8

1.2 Lockout justified or not

case, there is no question of the lockout being regarded as justifiable.

1.3 Attack on supervisor

charge and misused his connects with the political party.

his life and dignity.18

attack on the dignity of workers.

harsh negligence and unlawful act of the industry?

 To every establishment being a factory, mine or plantation including any such

establishment belonging to government is allowed to give the compensation.

payout in the history of Indian medical negligence litigation19.

specified in the Schedule.

then financial assistance?

establishment belonging to government and to every establishment wherein persons are

were employed, on any day of the preceding twelve months.

benefit of maternity leave on birth of third child.

normal development of the foetus or is likely to cause miscarriage or otherwise to adversely

to be a fundamental right but it certainly is a constitutional goal. Article 39 (d) of the

on an individual or co-operative basis in rural areas.

advanced pregnancy cannot be compelled to undertake hard labour as it would be detrimental to

who were engaged on casual basis or on muster-roll on daily wage basis.

Thus free treatment at a non-government hospital, governmental hospital, health centre,

of the Consumer Protection Act, 1986.

medical science and by presenting expert opinion37.

Dr Janak Kantimathi Nathan vs Murlidhar Eknath Masane38.

not any other person was negligent.

degree of negligence is a factor in determining liability. However, certain elements must be

magnitude of the offence, and the character of the offender.

Nair and another 41

following guidelines would prevail: A private complaint of rashness or negligence against a

an independent opinion, preferably of a government doctor. Finally, a doctor may be arrested

conducted the operation with the equipments which were defective.

the harsh, negligent and unlawful act of the industry?

resulting in death or permanent total disablement caused by an accident which is directly

framed, for the purpose of securing the safety of (employees), or

to pay the contribution.

of The Constitution of India, 1950 or not?

factory and non maintenance of standards of the factory.

been violated by the Malal Industry.

depriving a person of his/her dignity.