T C-

Before

HON’BLE HIGH COURT OF UTTAR PRADESH

UNDER ARTICLE 226 OF CONSTITUTION OF INDIA

Petition No. ____/2024

IN THE MATTER OF

Registered Trade Union of …(Petitioners)

Bhawana Industrial Sector
Versus

Bhawana Industrial sector ...(Respondent)

MEMORIAL FOR THE PETITIONER

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 TABLE OF CONTENT

TABLE OF CONTENTS

TABLE OF ABBREVIATIONS

INDEX OF AUTHORITIES

STATEMENT OF JURISDICTION

SYNOPSIS OF FACTS

ISSUES RAISED

SUMMARY OF ARGUMENTS

ARGUMENTS ADVANCED

ISSUE 1: Whether the writ petition filed by Trade Union is maintainable or not?

1.1 Maintainability Of Petition

1.2 Lockout by industry is not justifies:
1.3 Attack on supervisor:
ISSUE 2: Whether the Bawana Industries violated the provisions made under constitution and maternity
benefit act?

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?

2.2- Who would be liable to pay compensation? Whether the act of the supervisor is valid or not?

2.3- Whether there is violation of Article 21 of Constitution Of India by Bawana Industries?

ISSUE 3: Whether Bawana Industries complied with the Standards set for the workers in factories and
whether the use of bouncer is valid or not?.

PRAYER

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 LIST OF ABBREVIATION

ABBREVIATION ACTUAL TERM

& And

Anr. Another

Art. Article

cl. Clause

GOI Government of India

HC High Court

Hon’ble Honorable

No. Number

Ors. Others

S. Section

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

UOI Union of India

v. Versus

INDEX OF AUTHORITIES

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STATUTORY COMPILATION

1. CONSTITUTION OF INDIA, 1950

2. MATERMITY BANEFIT ACT, 1961

3. EMPLOYERS COMPENSATION ACT, 1923

WEBSITES

1. http://www.judis.nic.in

2. http://www.manupatra.com

3. http://www.supremecourtcaselaw.com

CASE LAWS

1) Central Provinces Transport Service Ltd. v. Raghunath Gopal Patwardhan 1957-1-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.
2) Bharat Petroleum Corporation Ltd. v. Petroleum Employees Union & Ors., 2001 (2) BomCR 447
3) Bharat Petroleum Corporation Ltd. v. Petroleum Employees Union & Ors., 2001 (2) BomCR 447
4) 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
5) India General Navigation and Railway v. Their Workmen MANU/SC/0122/1959 : (1960)ILLJ13SC
6) Abbott India Ltd. and Ors. v. All India Abbott Employees Union and Ors , 2011(131) FLR 956

7) Maneka Gandhi v. Union of India , (1978) 1 SCC 248 42.

8) 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.
9) Parkasho Devi v. Uttar Haryana Bijli Vitran Nigam (2008) 3 PLR 248
10) J.K. Cotton Spg. & Wvg. Mills Co. Ltd. V. Labour Appellate Tribunal of India 1961 AIR 1170, AIR
1961 SUPREME COURT 1170, 1961 (1) LABLJ 540, 1961 3 SCR 185, 1960-61 19 FJR 436, 1962 (1)
SCJ 417, ILR 1961 2 ALL 493
11) State of Haryana v. Smt. Santra (2000) 5 SCC 182:: AIR 2000 SC 3335.
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 12) Maghuni Charan Dwivedi v. State of Orissa and another 19 December 1975.
13) Maneka Gandhi v. Union Of India,1978 AIR 597.
14) Chairman Railway Board v. Chandrima Das, (2000) 2 SCC 465; Bandhua Mukti Morcha v. Union of
India, AIR1984 SC 802.
15) Bandhua Mukti Morcha v. Union of India & Ors. (1997) 10 SCC 549
16) Consumer Education & Research Centre and others v. Union of India and others (1995) 3 SCC 42

STATEMENT OF JURISDICTION

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It is most humbly and respectfully submitted that the Petitioner has approached this Hon’ble High Court under
Article 226 1of 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.

STATEMENT OF FACTS

1
Article 226 in the Constitution of India226.

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 territorieswithin 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 forsuch 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.

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Ibrahim Ali Khanwas and Fatima, a resident of District Ramnagar in Uttar Bharat, have been working in the
Bawana Industrial Sector for three years. Fatima, married to Ibrahim, was not enrolled in the industry registry
from January 7, 2020. On January 10, 2023, Fatima was instructed to shift wheat bags into the factory
warehouse. Despite her doctor's advice, she refused to lift heavy luggage, causing her supervisor to coerce her
into completing the task by 5:00 PM.

The Bawana Industrial Sector is a successful industry in Uttar Bharat, contributing to the economic welfare of
the state. Fatima's situation highlights the challenges faced by women in the industry, particularly those who are
pregnant or have medical advice against lifting heavy luggage.

A pregnant woman experienced fatigue and abdominal pain during work. She sought painkillers from a factory
dispensary and was given the option to take them or rest for an hour. She took two tablets and continued her
work. However, the pain returned, making her discomfort unbearable. Her husband and mother-in-law took her
to a hospital, where she was examined by a gynaecologist. After a preliminary examination, she was admitted.

However, she suffered a miscarriage and heavy bleeding. The gynaecologist identified the reasons for the
miscarriage as the combined effects of the pills taken at the factory and lifting heavy bags. She had previously
experienced a miscarriage a year prior.

Fatima, a pregnant woman, was given a Talaq by her husband, stating she couldn't become a mother. She
moved to her parents' house, where she was not well-resourced. On 15th May, 2023, her supervisor informed
her that her services were no longer needed and she was not paid her dues. This news reached the Bawana
Industrial Sector Trade Union, who called an emergency meeting and held a silent strike.

The workers went on strike, but negotiations failed, leading to a lockout. The union discovered Fatima had
taken pills from a doctor who knew she was pregnant, causing agitation among union members. The next day,
angry union members threw stones at Mr. Adhinath's bungalow and broke his office windows.

Mr. Adhinath was provoked by this and since he had a good relationship with the President of the Working
regional political party, he was able to hire bouncers who used coercive force including lathi-charge on the
workers, which further deteriorated the situation. The Trade Union filed a suit for violation of constitutional
principles under Article 21 and non-compliance of the standards set for the workers in factories and use of
bouncers. In return, Bawana 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. The Court
combined both the petitions and set the date for hearing on 11 January 2020. For administrative purpose, the
Trade Union will be Petitioners and Bawana Industry will be Respondents.

ISSUES RAISED

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 ISSUE I: Whether the writ petition filed by Trade Union is maintainable or not?

ISSUE II: Whether the Bawana Industries violated the provisions made under constitution and

maternity benefit act?

ISSUE III: Whether Bawana Industries complied with the Standards set for the workers in

factories and whether the use of bouncer is valid or not?

SUMMARY ARGUMENTS
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ISSUE I: Whether the writ petition filed by Trade Union is maintainable or not?

The Petition filed by Trade Union is 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 Bawana Industry is not justified and legal. The management
should not have hired bouncers who used lathi charge as a measure to prevent Union members.

ISSUE II: Whether the Bawana Industries violated the provisions made under constitution and
maternity benefit act?

There has been a gross violation of Article 21 by the Industry in various forms. Initially, the supervisor coerced
Fatima, thereafter negligence of trainee doctor took a toll on her life, and finally her replacement in Industry
added peril to her misery.

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. And in present case Fatima has been forced to
do the work which is harmful for a three month pregnant lady.

ISSUE III: Whether Bawana Industries complied with the Standards set for the workers in factories and
whether the use of bouncer is valid or not?

It is humbly submitted to the hon’ble court that the Bawana Industries does not complied with the standard set
for the workers in the Factories and the use of bouncer is firstly it is the duty of every industrial management to
enrol their worker in the muster roll and should give work according to the capacity of the worker here Fatima
is three month pregnant and she can’t do any work which is harmful to her health but she has been forced for
the work and the use of bouncer and lathi charge on the workers cannot be justified in any way.

ADVANCED ARGUMENTS
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ISSUE I: Whether there was a valid contract between the plaintiff and the defendant?

The Petition filed by Trade Union is 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 Bawana Industry is not justified and legal. The management
should not have hired bouncers who used lathi charge as a measure to prevent Union members.

1.1 Maintainability Of Petition:

The petition filed by Trade Union is 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.

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. 2Therefore, 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 under the law. 3The right of peaceful demonstration
is a fundamental right of citizens, including workers.

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
Justice.4

From all the above contentions it is very clear that the strike by the trade union is not illegal and the petition
filed by the trade union is maintainable.

1.2 LOCKOUT BY THE INDUSTRY IS NOT JUSTIFIED:

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 giving prior notice. It is an attempt to

2
Central Provinces Transport Service Ltd. v. Raghunath Gopal Patwardhan 1957-1-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.
3
Bharat Petroleum Corporation Ltd. v. Petroleum Employees Union & Ors., 2001 (2) BomCR 447
4
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
10 | P a g e
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. If a lockout is illegal, then in such a case, there is no question of
the lockout being regarded as justifiable.

In a Constitution Bench of the Supreme Court" reiterated the principle that was enunciated in India General
Navigation and Railway v. Their Workmen 5that 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 workers by using coercive force
and lathi charge was not required. 6This 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 expanding 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. 7This Article embodies constitutional value of
supreme importance. The Supreme Court has asserted Article 21 as the heart of the Fundamental rights.

Article 21 imposes a positive obligation upon the State to ensure that individuals have an opportunity for better
enjoyment of his life and dignity.8

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.

5
India General Navigation and Railway v. Their Workmen MANU/SC/0122/1959 : (1960)ILLJ13SC

6
Abbott India Ltd. and Ors. v. All India Abbott Employees Union and Ors , 2011(131) FLR 956

7
Maneka Gandhi v. Union of India , (1978) 1 SCC 248 42.

8
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.

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ISSUE II: Whether the Bawana Industries violated the provisions made under constitution and
maternity benefit act?

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There has been a gross violation of Article 21 by the Industry in various forms. Initially, the supervisor coerced
Fatima, thereafter negligence of trainee doctor took a toll on her life, and finally her replacement in Industry
added peril to her misery.

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. And in present case Fatima has been forced to
do the work which is harmful for a three month pregnant lady.

In this Hon'ble High Court Fatima 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.

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 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

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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 Parkasho Devi v. Uttar
HaryanaBijliVitranNigam 9by this common judgment, the aforestated two writ petitions are being disposed o
f which are directed against the orders rejecting the claim of the petitioner for grant of maturity leave from Dec
ember 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 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.
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.’
In J.K. Cotton Spg. & Wvg. Mills Co. Ltd. V. Labour Appellate Tribunal of India,10 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.”

9
(2008) 3 PLR 248
10
Equivalent citations: 1961 AIR 1170, AIR 1961 SUPREME COURT 1170, 1961 (1) LABLJ 540, 1961 3 SCR 185, 1960-61 19 FJR
436, 1962 (1) SCJ 417, ILR 1961 2 ALL 493

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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. It is stated that in present case no maternity
benefit rules has been followed Fatima has been forced to do work of harmful nature and later she has been
refused for the employment.

2.2- Who would be liable to pay compensation? Whether the act of the supervisoris 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”11

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.

It is humbly stated that hence doctor cannot be individually and vicariously liable hence Fatima should get
Compensation from the Bawana Industry itself.

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 provisions. 12Provided 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
(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).

2.3- Whether there is violation of Article 21 of Constitution Of India by Bawana Industries?

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

11
State of Haryana v. Smt. Santra (2000) 5 SCC 182:: AIR 2000 SC 3335.
12
Maghuni Charan Dwivedi v. State of Orissa and another 19 December 1975.
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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"13

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.

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”. 14Live 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.15

As Fatima 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.

Consumer Education & Research Centre and others v. Union of India and others 16, 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 21to 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 Fatima 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.

13
Maneka Gandhi v. Union Of India,1978 AIR 597.
14
Chairman Railway Board v. Chandrima Das, (2000) 2 SCC 465; Bandhua Mukti Morcha v. Union of India, AIR1984 SC 802.
15
Bandhua Mukti Morcha v. Union of India & Ors. (1997) 10 SCC 549
16
Consumer Education & Research Centre and others v. Union of India and others (1995) 3 SCC 42

16 | P a g e
ISSUE III: Whether Bawana Industries complied with the Standards set for the workers in factories and
whether the use of bouncer is valid or not?

It is humbly submitted to the hon’ble court that the Bawana Industries does not complied with the standard set
for the workers in the Factories and the use of bouncer is firstly it is the duty of every industrial management to
enrol their worker in the muster roll and should give work according to the capacity of the worker here Fatima
is three month pregnant and she can’t do any work which is harmful to her health but she has been forced for
the work and the use of bouncer and lathi charge on the workers cannot be justified in any way.

Supervisors are responsible for a great deal of what goes on day to day in the workplace; it's not just a position
that solely assigns tasks. Supervisors must ensure a safe and healthful workplace for employees. Employees
must be able to report unsafe or unhealthful workplace conditions or hazards to a supervisor without fear of
reprisal.

The following is a list of primary responsibilities that supervisors have in the area of occupational safety and
health for all employees under their supervision.

Conduct Orientation and Training of Employees:

Train and instruct employees so they can perform their work safely. Know what personal protective equipment
is needed for each task and how this equipment must be properly used, stored and maintained. When there are
mandated safety training courses, ensure that your employees take them and that they are appropriately
documented.

Enforce Safe Work Practices:

It's the supervisors responsibility to enforce safe work practices and procedures; failure to do so is an invitation
for accidents to occur. Workers must be encouraged to identify unsafe or unhealthful workplace conditions or
hazards and absolutely not be disciplined for doing so!

Correct Unsafe Conditions:

Supervisors' must take immediate steps to correct unsafe or unhealthful workplace conditions or hazards within
their authority and ability to do so. When an unsafe or unhealthful workplace condition or hazard cannot be
immediately corrected, the supervisor must take temporary precautionary measures. Supervisors must follow-
up to ensure that corrective measures are completed in a timely manner to address the hazard.

Prevent Lingering Unsafe or Unhealthful Workplace Conditions or Hazards:

Many near miss incidents are caused by unsafe or unhealthful workplace conditions or hazards. It's the
supervisor's responsibility to train and periodically remind employees of what to look for and how to correct or
report unsafe conditions or hazards. If a hazard is identified, the supervisor must act.

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 Investigate Workplace Accidents:

Supervisors are responsible for conducting accident investigations and for ensuring that all occupationally
injured employees report to the Occupational Medical Service (OMS) immediately. Note: NIH Policy requires
all injuries, including those sustained by contractors, to be reported to OMS. OMS works with the pision of
Occupational Health and Safety to identify hazardous conditions leading to injuries. The OMS will document
and treat any acute injuries. All facts and opinions regarding the cause of the accident must be compiled and
documented on the Workers Compensation Forms (CA-1 or CA-2). Supervisors must review the circumstances,
sign and submit the forms within 48 hours.

Promote Quick Return to Work:

Employees must be encouraged to return to work as soon as possible. The longer an employee is away from
work, the less likely he or she will actually return. When possible, light or limited duties should be identified
and considered, to assist in returning the employee to work.

It is humbly stated that the supervisor here doesn’t follow any of measure to protect the workers of the industry
even the employer of the industry does not care about the health issues of the workers they only force them to
do work. The supervisor even use the bouncer and lathi charged on the workers which is not legal at all.

As the counsel in it previous issue 1.3 mentioned that The act of hiring bouncers and humiliate workers by
17
using coercive force and lathi charge was not required. 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 expanding 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. 18This Article embodies constitutional value of
supreme importance. The Supreme Court has asserted Article 21 as the heart of the Fundamental rights.

17
Abbott India Ltd. and Ors. v. All India Abbott Employees Union and Ors , 2011(131) FLR 956

18
Maneka Gandhi v. Union of India , (1978) 1 SCC 248 42.

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 PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, the counsel for the
Applicant humbly prays that this Hon’ble Court may be pleased to:

1. Order the respondent to employ Fatima and pay her due maternity benefit.

2. Order the Respondent to pay the compensation to Fatima of her miscarriage and pay damages on violation
of her fundamental right Article 21.

3. Declare that the strike by the trade union is not the illegal strike.

AND/OR

And may pass any such other, direction or relief that it may deems fit in the best interest of Justice, Equity and
Good Conscience.

The counsel pleads before the Hon’ble Court to bind

“Sacramentum habet in se trescomites, veritatem, justitiam et judicium; veritas habendaest in jurato,

justitia et judicium in judice.”

For this act of kindness, the petitioner shall duty bound forever pray.

COUNSEL FOR THE PETITIONER

Sd./

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