SURANA & SURANA LABOUR LAW MOOT COURT COMPETITION 2018

BEFORE THE HON’BLE SUPREME COURT OF LAPINDA

SPECIAL LEAVE PETITION

S.L.P. NO. ___/2018

IN THE MATTER OF ARTICLES 136, 133 & 32 OF THE CONSTITUTION OF LAPINDA

AIESL LABOUR UNION ………………….…………………………………………….PETITIONERS

v.
AIESL……………….…………………………………………………………………...RESPONDENT

CLUBBED WITH

SECURITIES AND EXCHANGE BOARD OF INDIA …………...……………………PETITIONER

v.
RICHMAN SACHS INC. ..……………………………………………………………..RESPONDENT

CLUBBED WITH

LABOUR SHAKTI SANGHATAN…………………………………………………….PETITONERS

v.
REPUBLIC OF LAPINDA.....................................................................................…...RESPONDENT

BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE OF LAPINDA

AND HIS COMPANION JUSTICES OF
THE HON’BLE SUPREME COURT OF LAPINDA

MEMORIAL ON BEHALF OF THE PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ I

TABLE OF CONTENTS

TABLE OF CONTENTS .............................................................................................................. I

LIST OFABBREVIATIONS ..................................................................................................... III

INDEX OF AUTHORITIES ....................................................................................................... V

STATEMENT OF JURISDICTION .......................................................................................... X

STATEMENT OF FACTS ......................................................................................................... XI

ISSUES RAISED....................................................................................................................... XII

SUMMARY OF ARGUMENTS ............................................................................................. XIV

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

ISSUE 1: Whether the present industrial scenario necessitates the revision of the definition of the

term ‘industry’ and whether aiesl can be termed as ‘industry’. ...................................................... 1

1.1 The present industrial scenario does not require a revision of definition of ‘industry’. ......... 1

1.2 AISEL is an ‘industry’ under the Industrial Disputes Act. ....................................................... 3

ISSUE 2: Whether the process of discharge of employees stands in violation of the act. ............. 4

2.1 AIESL is an ‘industrial establishment’ as defined u/s 25-L(a)(i) of the Act ............................. 4

2.2 The conditions for retrenchment given u/s Section 25N are not fulfilled. ................................ 7

ISSUE 3: Whether the exercise of rights by the investor amounts to ‘control’ as per sebl takeover

regulations, 2011? ........................................................................................................................... 8

ISSUE 4: in the light factual matrix, whether the employees can exercise the esops even after being

discharged from the employment? 
 ............................................................................................. 11

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ II

4.1 Options have been vested in the employees ............................................................................ 11

4.2 Vested options can be exercised ............................................................................................. 12

ISSUE 5: in the present industrial scenario, whether there is a need to move labour laws from

concurrent list to the state list of the constitution of lapinda. ....................................................... 13

5.1 The labour law regime in Lapinda would be more functional in the state list. ...................... 13

5.2 Status-Quo is a breach of the fundamental rights of employees. ............................................ 15

PRAYER ...................................................................................................................................... 16

MEMORIAL ON BEHALF OF PETITIONER

~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ III

LIST OFABBREVIATIONS

ABBREVIATIONS FULL FORM

¶ Paragraph

¶¶ Paragraphs

& And

§ Section

AIR All India Reporter

AIESL Air Lapindana Engineering

Services Limited

ALL Air Lapindana Limited

All Allahabad

All ER All England Reporter

AT Appellate Tribunal

Bom Bombay

Cal Calcutta

Cir. Circular

CLB Company Law Board

CLR Company Law Reports

Co. Company Law Board

Comp. Cas. Company Cases

C.P. Civil Petition

Cri LJ Criminal Law Joural

Ed. Edition

MEMORIAL ON BEHALF OF PETITIONER

~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ IV

ESOP Employee Stock Option Plans

ESOS Employee Stock Option Schemes

Guj Gujarat

HC High Court

ID Act Industrial Disputes Act, 1947

LLJ Labour Law Journal

LSS Labour Shakti Sanghatan

Ltd Limited

MCA Ministry of Corporate Affairs

MRO Maintenance Repair Overhaul

No. Number

Ors Others

p. Page Number

PIL Public Interest Litigation

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

Sec. Section

SLP Special Leave Petition

Supp Supplementary

u/a Under Article

u/s Under Section

UP Uttar Pradesh

v. Versus

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ V

INDEX OF AUTHORITIES

INDIAN CASES

1. A.K Roy v. Union of India & Anr., AIR 1982 SC 710 ............................................................ 2

2. Adaishwar Laal v. Labour Court, 1970 Lab IC 936, 941 (Del). ............................................... 8

3. Air India Statutory Corporation v. United Labour Union, AIR 1997 SC 645 .......................... 3

4. Alagaapuram R. Mohanraj v. T.N. Legislative Assembly, (2016) 6 SCC 82 ........................ 15

5. Ardeshir H. Bhiwandiwala v. State of Bombay, (1961) 3 SCR 592. ....................................... 5

6. Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 .................................................... 14

7. Ashwin K Doshi v. Securities and Exchange Board of India (25 October 2002), Appeal No

44 of 2001 ............................................................................................................................... 10

8. Assistant Commissioner of IT v. Shri Param Paul Uberoi, 2012 SCC OnLine ITAT 16694 13

9. B.R. Singh v. Union of India, (1989) 4 SCC 710 ................................................................... 14

10. Bangalore Water Supply & Sewerage Board v. A. Rajappa, (1978) 2 SCC 213 ..................... 1

11. Bhag Singh v. ESI Corporation, 1983 Lab IC 412 ................................................................... 5

12. Biocon Ltd. v. DCIT, (2013) 144 ITD 21 (Bang.) .................................................................. 12

13. Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 273.... 2

14. Chief Inspector of Mines v. Karam Chand Thapar, (1962) 1 SCR 9...................................... 14

15. Corp of City of Nagpur v. Its Employees, 1960 AIR 675 ........................................................ 3

16. D.N Banerji v. P.R Mukherjee, 1953 AIR 58 ........................................................................... 3

17. D.S Nakara v. Union of India, (1983) 1 SCC 305 .................................................................... 2

18. DCIT-2(3)(2) v. Kotak Mahindra Bank Ltd., [2018] 168 ITD 529(Mum)............................. 12

19. Delhi Cloth and General Mills Co. Ltd. v. Shambu Nath Mukherjee, 1978 AIR 8.................. 8

20. EID Parry (I) Ltd. v. Labour Court, Guntur (1992) 2 LLJ 580................................................ 8

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ VI

21. Express Newspapers (P) Ltd. v. Union of India, 1959 SCR 12 .............................................. 14

22. Gateway Auto Services v. ESI Corporation (1980) IILLJ 255 Bom ........................................ 5

23. Gen. Manager Telecom v. S. Sanjiva Rao, AIR 1998 SC 656 ................................................. 2

24. Hindustan Wire Products Ltd. v. Jaspal Singh, (2001) 3 LLN 821 (SC) ................................. 8

25. In re., Kamat Hotels (I) Ltd WTM/GM/EFD/DRAIII/20/MAR/2017 .................................. 10

26. Indian Drugs & Pharmaceuticals Ltd. v. Workmen, (2007) 1 SCC 408 ................................ 15

27. Indian Farmers Fertiliser Co-op Ltd v. Industrial Tribunal (I), Uttar Pradesh Allahabad 1991

Lab IC 1747 .............................................................................................................................. 7

28. Infosys Technologies Ltd. v. Deputy Commissioner Of Income Tax, 297 ITR 147.............. 12

29. Jayant Verma v. Union of India, (2018) 4 SCC 743 ............................................................... 13

30. Jindal Stainless Steels Ltd. v. State of Haryana, (2017) 12 SCC 1 ( ...................................... 14

31. Lal Mohammed v. Indian Rly. Corporation Ltd, (1999) 1 SCC 596 ........................................ 6

32. M.C Mehta v. State of Tamil Nadu, AIR 1997 SC 699 ............................................................ 3

33. M/S Qazi Nooran Hasan Hamid Hussain Petrol Pump v. Deputy Director ESI Corpn (2003)

LLR 476. ................................................................................................................................... 5

34. Mohan Singh v. Railway Board, (2015) 10 SCC 759........................................................... 4, 6

35. Nagpur Electric Light & Power Ltd v. Regional Director, Employees’ State Insurance Co,

(1967) 3 SCR 92. ...................................................................................................................... 5

36. National Iron and Steel Co. Ltd. v. State of West Bengal, (1967)2 LLJ 23 (SC)..................... 8

37. People Interactive (I) Pvt. Ltd. v. Department of Income Tax, 2015 TaxPub (DT) 4654

(Mum-Trib) ............................................................................................................................. 13

38. People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235. ...................... 15

39. Pramod Lele v. Department of Income Tax, (2011) 47 SOT 363 (Mum)(Trib) ................... 13

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ VII

40. Raghubir Singh v, Haryana Roadways, (2014) 10 SCC 301 .................................................. 15

41. Rajiv Singh Dalal v. Chaudhari Devilal University, Sirsa & Anr., (2008) 9 SCC 284 ............ 1

42. Regional Manager SBI v. Raja Ram, (2004) 8 SCC 164........................................................ 15

43. Rhodia SA v. Securities and Exchange Board of India (7 November 2001), Appeal No 36 of

2001......................................................................................................................................... 10

44. Rohtas Industries Ltd. v. Ramlakhan Singh, (1978) 2 SCC 140 .............................................. 6

45. Saurabh Chaudhri v. Union of India, (2003) 11 SCC 146 ...................................................... 14

46. SEBI v. Subhkam Ventures (I) Pvt. Ltd. MANU/SC/1587/2011. ......................................... 10

47. Shaw Wallace Gelatines Ltd. v. OP Singh (2001) 4 LLN 503 (MP)........................................ 8

48. Shibu Metal Works v. Workmen, (1966) 1 LLJ 717 ( .............................................................. 6

49. Sri Vishuddhananda Saraswathi Marwari Hospital v. Their Workmen, 1952 2 Lab LJ 327

(LATI-Cal) ................................................................................................................................ 4

50. State of Bombay & Ors. v. Hospital Mazdoor Sabha, AIR 1960 SC 610 ........................ 1, 4, 7

51. State of Kerala v. N.M. Thomas, AIR 1976 SC 490 .............................................................. 15

52. State Transport Accountants Association v. Orissa State Road Transport Corporation, 1990

Lab IC 1378 .............................................................................................................................. 6

53. State v. H.B Namjoshi, AIR 1956 Bom 189 ............................................................................. 6

54. Suryakant Sandibigraha and Ors. v. The State Govt. of NCT of Delhi, 2018 SCC Online Del

11449....................................................................................................................................... 12

55. T.V.P Punjab v. Regional Director, E.S.I Corpn, 1982 Lab IC NOC 102 (Cal). ..................... 5

56. Tarem Singh v. State of Punjab, (1994) 5 SCC 392 ............................................................... 14

57. Union of India v. G.M Kokil, 1994 Supp SCC 196 .................................................................. 6

58. Union of India v. Raghubir Singh, AIR 1989 SC 1933 ............................................................ 2

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ VIII

59. Union of India v. Shri Gajanan Maharaj Sanstha, (2002) 5 SCC 44 ........................................ 2

60. Vijay Gopal Jindal v. Assessee, 2011 LL 0318-186 ............................................................... 12

61. Workmen at Meenakshi Mills v. Meenakshi Mills Ltd. (1992) 2 LLJ 295, 309(SC) ............. 8

62. Workmen v. Bhurkunda Colliery of Central Coalfields, (2006) 3 SCC 297 .......................... 15

STATUTES

1. Industrial Disputes (Amendment) Act, 1982. ........................................................................... 2

2. The Factories Act, 1948 .................................................................................................... 5, 6, 7

3. The Industrial Disputes Act, No. 14 of 1947 .................................................................... 1, 7, 8

OTHER AUTHORITIES

1. Darli Vieira, Paula Loures, MRO fundamentals and strategies- an Aeronautical Industry

Overview, 135 INTERNATIONAL JOURNAL OF COMPUTER SCIENCES (February 2016 ............... 5

2. Discussion Paper on “Brightline Tests for Acquisition of ‘Control’ under SEBI Takeover

Regulations”, (March 2016).................................................................................................... 10

3. Justice P. Bhagwati Committee Report on Takeovers, 1997, 6.3 (Takeovers). ....................... 9

4. Press Release- Acquisition of Control under SEBI (Substantial Acquisition of Shares and

Takeovers) Regulations, 2011, PR No. 56/2017 (September 2017). ...................................... 10

5. R. Mitchell & P.G. Gahan, The Evolution of Labour Law in India: An Overview and

Commentary on Regulatory Objectives and Development, 1 ASIAN JOURNAL OF LAW AND

SOCIETY 413, 413-451 (2014). ................................................................................................ 14

6. Report of the Takeover Regulations Advisory Committee....................................................... 9

7. Umakanth Varotil, Comparative Takeover Regulations and the Concept of ‘Control’, SING

JLS, 208, 228 (2015). .............................................................................................................. 10

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ IX

REGULATIONS

1. SEBI (Share Based Employee Benefit) Guidelines, 2014 ................................................ 11, 12

2. SEBI (Substantial Acquisition of Shares and Takeover Regulations), 2011 ............................ 9

3. SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011 .......................... 9

INTERNATIONAL CASES

1. Hotel and Catering Industry Training Board v. Automobile Proprietary Ltd., (1968) 1 W.L.R.

1526........................................................................................................................................... 1

2. Siegel v. First Pennsylvania Banking and Trust Co, 201 F. Supp. 664 (E.D.Pa. 1961) ......... 13

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ X

STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Lapinda has jurisdiction to hear the matter under Art. 136
of the Constitution of Lapinda1, 1950.

Article 136 of the Constitution reads as follows:

“136. Special leave to appeal by the Supreme Court-

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the territory of
India

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.”

1
Constitution of Lapinda is para materia to Constitution of India, 1950.

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ XI

STATEMENT OF FACTS
1. AIESL is a one stop shop for all airline engineering requirements including MRO in Lapinda.

In 2014, the government disinvested in AIESL. After this disinvestment, Richman Sachs Inc.,

acquired 40% shares along with voting rights, through agreement in AIESL.

2. On the investor’s recommendation, AIESL employed 2,50,000 IT professionals throughout the

country in September 2015. To retain its employees, the enterprise also issued ESOPs to its

100,000 employees with a vesting period of 3 years. The investor exercised its veto power in

multiple affairs of the Company. It influenced the promoters to replace the manpower with AI

and hence 100,000 employees were discharged by AIESL in January 2017. The AIESL Labour

Union filed a writ petition in the High Court which was dismissed on the grounds that the

discharge does not violate the Industrial Disputes Act. Hence, the Labour Union filed an SLP

before the Supreme Court of Lapinda.

3. The Industrial Disputes Act was amended in 1982 and the definition of ‘industry’ was amended

but not notified. In order to revise the judicial interpretation of the term ‘industry’, the Apex

Court decided to constitute a 9 judge bench to adjudicate upon the case at hand.

4. A complaint was made to SEBL claiming to exercise the ESOPs issued by AIESL. In order to

determine this liability, SEBL relied on the ‘Control Test’ as under the Takeover Regulations,

2011 and concluded that the rights conferred upon the investors through the agreement

amounted to Control. On appeal by the investor, SAT rejected SEBL’s views. Aggrieved,

SEBL filed an appeal before the Supreme Court of Lapinda. Meanwhile, LSS, a NGO, filed a

PIL in the Apex Court contending that the entry of Labour Laws in the concurrent list allowed

amendments only to some Central Laws. The Supreme Court clubbed this PIL with the SLP

filed by AIESL Labour Union and the appeal filed by SEBL.

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ XII

ISSUES RAISED

~ ISSUE 1 ~

WHETHER THE PRESENT INDUSTRIAL SCENARIO NECESSITATES THE

REVISION OF THE DEFINITION OF THE TERM ‘INDUSTRY’ AND WHETHER
AIESL CAN BE TERMED AS AN ‘INDUSTRY’.

[1.1] The present industrial scenario does not necessitate the revision of the term ‘industry’.

[1.2] AIESL can be termed as an ‘industry’.

~ ISSUE 2 ~

WHETHER THE PROCESS OF DISCHARGE OF EMPLOYEES STANDS IN

VIOLATION OF THE ACT.

[2.1]AIESL is an ‘industrial establishment’ as defined u/s 25-L(a)(i) of the Act.

[2.2] The conditions for retrenchment given u/s Section 25N are not fulfilled.

~ ISSUE 3 ~

WHETHER THE EXERCISE OF RIGHTS BY INVESTOR AMOUNT TO ‘CONTROL’

AS PER SEBL TAKEOVER REGULATIONS, 2011.

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ XIII

~ ISSUE 4 ~

IN THE LIGHT OF FACTUAL MATRIX, WHETHER THE EMPLOYEES CAN

EXERCISE ESOPS EVEN AFTER BEING DISCHARGED FROM EMPLOYMENT

[4.1] Options have been vested in the employees.

[4.2] The vested options can be exercised.

~ ISSUE 5 ~

IN THE PRESENT INDUSTRIAL SCENARIO, WHETHER THERE IS A NEED TO

MOVE LABOUR LAWS FROM THE CONCURRENT LIST TO THE STATE LIST OF
THE CONSTITUTION OF LAPINDA.

[5.1] The labour law regime in Lapinda is ambiguous, disparate, and would be more functional in

the State List

[5.2] The status-quo is a breach of the fundamental rights of employees.

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ XIV

SUMMARY OF ARGUMENTS
ISSUE 1: It is submitted that the present industrial scenario does not warrant a change in the

definition of the term ‘industry’ as the same is inclusively and explicitly defined u/s Industrial

Disputes Act, 1947. Moreover, the ‘triple test’ laid down by the Apex Court is a binding precedent

which provides clarity and AIESL is an industry according to the same.

ISSUE 2: It is submitted that the discharge of employees violated the Act. AIESL is an ‘industrial

establishment’ u/s 25L(a)(i) as it is engaged in a ‘manufacturing process’ and is thus a factory u/s

2(m) of the Factories Act. AIESL did not comply with provisions under Chapter VB as no

permission was taken from the Government, three months’ notice or payment in lieu of such notice

and retrenchment compensation was not delivered to the discharged employees.

ISSUE 3: The exercise of rights by the investor amounts to ‘control’ as per SEBL regulations

because the investor exercised its veto rights to control the management and policy decisions of

AIESL. In the present matter, due to the influence, recommendations and veto rights of the

investor, it is submitted that the same amount to ‘control’.

ISSUE 4: It is contended that the employees can exercise ESOPs even after their discharge from

employment as such termination was illegal and invalid. The employees thus have a right of

reinstatement and the right to exercise options. Moreover, as per graded vesting, the retrenched

employees have the right to exercise all their vested options post termination.

ISSUE 5: It is submitted that labour laws need to be moved from List III to List II of the Constitution

as the implementation of labour laws in List III leads to inflexibility. There is disparity, ambiguity

in the present legislative scenario and labour laws would be better executed and be more functional

under the State List as they will adjust to the conditions of the State.

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ 1

ARGUMENTS ADVANCED
I 1: WHETHER THE PRESENT INDUSTRIAL SCENARIO NECESSITATES THE REVISION OF THE
DEFINITION OF THE TERM ‘INDUSTRY’ AND WHETHER AIESL CAN BE TERMED AS ‘INDUSTRY’.

1. It is contended before the Hon’ble Supreme Court that [1.1] The present industrial scenario

does not necessitate the revision of the term ‘industry’ u/s 2(j) of the Industrial Disputes Act

and [1.2] AIESL can be termed as an ‘industry’.

The present industrial scenario does not require a revision of definition of ‘industry’.

2. “Industry” means any business, trade, undertaking, manufacture or calling of employers and

includes any calling, service, employment, handicraft, or industrial occupation or avocation of

workmen.2 The definition must not be read in isolation and must be read in the context of the

phrase which it defines3. The object of the Act is also to be considered while evaluating the

ambit of ‘industry’4. The preamble of the Act quotes that the statute was ‘implemented to make

provisions for the investigation and settlement of industrial disputes’5.

3. The Apex Court in Bangalore Water Supply & Sewerage Board6 settled the issue pertaining to

the definition of ‘industry’ by introducing a triple test for the same7. The decision of the Apex

court is a precedent, if it lays down some principle of law supported by reasons8. The law laid

2
The Industrial Disputes Act, No. 14 of 1947, INDIA CODE, Section 2(j).
3
Hotel and Catering Industry Training Board v. Automobile Proprietary Ltd., (1968) 1 W.L.R. 1526.
4
State of Bombay & Ors. v. Hospital Mazdoor Sabha, AIR 1960 SC 610.
5
‘An Act to make provision for the investigation and settlement of industrial disputes, and for certain other
purposes.’, Supra note 2, preamble.
6
Bangalore Water Supply & Sewerage Board v. A. Rajappa, (1978) 2 SCC 213.
7
Id.
8
Rajiv Singh Dalal v. Chaudhari Devilal University, Sirsa & Anr., (2008) 9 SCC 284.

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ 2

down by a larger bench of the Supreme Court is binding on any subsequent benches of lesser

or co-equal strength9. The doctrine of binding precedent promotes a certainty and consistency

in judicial decisions10. No bench of a lesser strength can contradict or bypass a binding

precedent so long as it holds the field11. Hence, currently, the interpretation of “industry” must

be in accordance with the tests laid down in the Bangalore Water Supply12 case as the doctrine

of stare decisis applies.

4. The amendment to the term ‘industry’ made in 1982 through the Industrial Disputes

(Amendment) Act, 1982 was not notified by the Union in accordance with Section 1(2) of the

Amendment Act13 due to lack of ‘procedural safeguards’14. No mandamus can be issued to the

Centre directing it to commence or fix the date for operation of Section 2(j) of the Act15.

5. The current industrial scenario does not warrant any requirement for reconsideration of the

definition. It is further stated that a ‘worker-oriented statute must receive a construction where

conceptual keynote thought must be the worker and the community, as the Constitution has

shown concern for them inter alia in Articles 38, 39 and 43’16. The principle aim of a socialist

state is to eliminate inequality and improve standards of living17. Social Justice helps mitigate

9
Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 273.
10
Union of India v. Raghubir Singh, AIR 1989 SC 1933.
11
Gen. Manager Telecom v. S. Sanjiva Rao, AIR 1998 SC 656.
12
Bangalore Water Supply case at note 6.
13
‘It shall come into force on such date as the Central Government may, by notification in the Official Gazette,
appoint’, Industrial Disputes (Amendment) Act, 1982, Section 1(2).
14
Compromis, para 6.
15
Union of India v. Shri Gajanan Maharaj Sanstha, (2002) 5 SCC 44, see also A.K Roy v. Union of India & Anr.,
AIR 1982 SC 710.
16
Bangalore Water Supply case at note 6.
17
D.S Nakara v. Union of India, (1983) 1 SCC 305.

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ 3

the sufferings of the deprived sections of the society and to elevate them to the level of

equality18. In various judicial interpretations19 including the ones quoted above, the law has

leaned in favour of the employees in the interest of a welfare state.

6. Presently, the industrial scenario must be read in strict consonance with the principle laid down

by the Apex Court as well as wide interpretation given to the definition u/s 2(j).

1.2 AISEL is an ‘industry’ under the Industrial Disputes Act.

7. It is contended that AISEL is an industry in accordance with Section 2(j) of the Industrial

Disputes Act and the three tests laid down in Bangalore Water Supply20 case.

8. The first criterion is that of a systematic activity21, which must be structured and well-defined.

It must be organised to obtain a certain objective22. AIESL was engaged in various engineering

services for aircrafts. It was an organisation of trade and business and thus satisfies the aspect

of ‘systematic activity’.

9. There must also be ‘cooperation between employer and employee’. AIESL is a company which

works with the aid of IT professionals23, who have been given ESOPs as incentives with a

vesting period of 3 years. This satisfies the said relationship.

10. The production and/or distribution of goods and services calculated to satisfy human wants

and wishes is the last essential factor here, as contemplated by the Act. AIESL has huge

18
Air India Statutory Corporation v. United Labour Union, AIR 1997 SC 645.
19
M.C Mehta v. State of Tamil Nadu, AIR 1997 SC 699.
20
Bangalore Water Supply at note 6.
21
Corp of City of Nagpur v. Its Employees, 1960 AIR 675.
22
D.N Banerji v. P.R Mukherjee, 1953 AIR 58.
23
Compromis, para 3.

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ 4

infrastructure which caters to line maintenance, base maintenance, engine overhaul and other

component overhaul activities24.

11. When definitions are inclusive in nature, it would be improper to put a restrictive interpretation

on terms of wider denotation25. The wide implications of Section 2(j) should not be stripped

of its natural meaning so as to limit the operation of the Act26. Thus, it is humbly submitted

before the Hon’ble Supreme Court that there is no requirement for reconsideration of the

definition of the term and AIESL falls u/s 2(j) of the Act.

I 2: WHETHER THE PROCESS OF DISCHARGE OF EMPLOYEES STANDS IN VIOLATION OF THE ACT.

12. It is contended that the discharge of employees violates the provisions of the Industrial

Disputes Act, 1947 as [2.1] AIESL is an ‘industrial establishment’ as defined u/s 25-L(a)(i) of

the Act and [2.2] The conditions for retrenchment given u/s Section 25N are not fulfilled.

2.1 AIESL is an ‘industrial establishment’ as defined u/s 25-L(a)(i) of the Act

13. It is contended that AIESL is an ‘industrial establishment’ attracting special provisions under

Chapter V-B of the Act as [2.1.1] AIESL is engaged in a ‘manufacturing process’ according

to Section 2(k) of the Factories Act, 1948 and [2.1.2] AIESL is a factory u/s 2(m) of the

Factories Act, 1948.

[2.1.1] AIESL is engaged in a ‘manufacturing process’ according to Section 2(k) of the

Factories Act, 1948
14. Section 2(k)(i) of the Factories Act, 1948, liberally27 defines a manufacturing process as ‘any

process for the making, altering, repairing,…,cleaning, breaking-up, demolishing, ..,any

24
Compromis, para 2.
25
State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610.
26
Sri Vishuddhananda Saraswathi Marwari Hospital v. Their Workmen, 1952 2 Lab LJ 327 (LATI-Cal).
27
Mohan Singh v. Railway Board, (2015) 10 SCC 759.

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ 5

article or substance with a view to its use, sale, transport, delivery, or disposal,28’. It covers a

broad ambit and the same is implied by the words ‘any process’ and ‘any article’29.

15. No dictionary meaning of the word manufacture is of relevance, and any human effort involved

in the aforementioned activities, constitutes a manufacturing process.30 Repairing and

maintaining any part of a machine or vehicle amounts to a manufacturing process31. A service

station for the purpose of restoring or mending a motor vehicle or any such similar machine

will be considered to be a ‘manufacturing process’32. It cannot be interpreted in a narrow sense

in respect of an Act meant for social welfare33.

16. Maintenance, Repair and Overhaul (MRO) means ‘all actions that have the objective of

retaining, repairing or restoring an item such that it can perform its required function.34’ Base

and line maintenance play an important role in keeping the product reliability and quality at

the appropriate level35. Engine overhaul is where the engine is deconstructed and repaired

before being fit into the aircraft again. These activities are the primary functions of AIESL. It

is submitted that engine overhaul, line and base maintenance are ‘manufacturing processes’.

[2.1.2] AIESL is a factory u/s 2(m) of the Factories Act, 1948.

28
The Factories Act, 1948, Section 2(k).
29
Nagpur Electric Light & Power Ltd v. Regional Director, Employees’ State Insurance Co, (1967) 3 SCR 92.
30
Ardeshir H. Bhiwandiwala v. State of Bombay, (1961) 3 SCR 592.
31
Gateway Auto Services v. ESI Corporation (1980) IILLJ 255 Bom.
32
Bhag Singh v. ESI Corporation, 1983 Lab IC 412, see also ESI Corpn v. Triplex Dry Cleaners, 1982 Lab IC 944,
see also T.V.P Punjab v. Regional Director, E.S.I Corpn, 1982 Lab IC NOC 102 (Cal).
33
M/S Qazi Nooran Hasan Hamid Hussain Petrol Pump v. Deputy Director ESI Corpn (2003) LLR 476.
34
Darli Vieira, Paula Loures, MRO fundamentals and strategies- an Aeronautical Industry Overview, 135
INTERNATIONAL JOURNAL OF COMPUTER SCIENCES (February 2016).
35
Id.

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ 6

17. Section 2(m) states the definition of a factory as a place where 20 or more workers are engaged

in a manufacturing process in the premises of the same36. To be a factory u/s 2(m) the

conditions of a ‘manufacturing process’ (as submitted above) and ‘worker’ u/s 2(l) need to be

satisfied. A person who is ‘employed, directly37 ,…,whether for remuneration or not, in any

manufacturing process38, …. , or in any other kind of work incidental to, or connected with,

the manufacturing process39,’ is a worker40.

18. All persons receiving fixed wages or being paid according to the quantum of work are

‘workers’ within the purview of the Act41. If employed in connection with a factory, whether

or not employed as ‘workers’ in the literal sense, they can reap the benefit of the Act42. A

person is a worker under Section 2(l) if he/she is employed in the precincts of a factory in any

kind of work connected with the subject of the manufacturing process43. When there are several

factories, plants or workshops of the same organisation at different locations but engaged in

‘manufacturing processes’, the same will be covered u/s 25L(a)(i) of the Act44.

19. Here, IT professionals employed by AIESL were workers within the ambit of the Factories

Act.. The job of being engaged in this activity which was instrumental to the work of AIESL

36
The Factories Act, 1948, Section 2(m).
37
Lal Mohammed v. Indian Rly. Corporation Ltd, (1999) 1 SCC 596.
38
Mohan Singh v. Railway Board, (2015) 10 SCC 759.
39
Shibu Metal Works v. Workmen, (1966) 1 LLJ 717.
40
The Factories Act, 1948, Section 2(l).
41
State v. H.B Namjoshi, AIR 1956 Bom 189.
42
Union of India v. G.M Kokil, 1994 Supp SCC 196.
43
Rohtas Industries Ltd. v. Ramlakhan Singh, (1978) 2 SCC 140.
44
State Transport Accountants Association v. Orissa State Road Transport Corporation, 1990 Lab IC 1378.

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ 7

and they were included in ‘any other kind of work incidental to, or connected with, the

manufacturing process.45’ As AIESL is engaged in a manufacturing process and IT

professionals are ‘workers’ as denoted in the Factories Act, it is humbly submitted that AIESL

is a factory u/s 2(m) of the Factories Act46. Hence, it satisfies the requirement u/s 25-L(a)(i)47

of the Act and thus attracts the special provisions under Chapter V-B of the Act.

2.2 The conditions for retrenchment given u/s Section 25N are not fulfilled.

20. The conditions specified u/s 25N of the Act have not been fulfilled. § 25N(1)(a) mandates a

notice of three months specifying the reasons of retrenchment to be given to the employees or

payment in lieu of such notice48. § 25N(1)(b) directs the employer to get permission from the

appropriate government before retrenchment of employees49. Section 25N(9) makes the

payment of retrenchment compensation of 15 days average pay compulsory50.

21. Prior permission to retrench a worker is foremost precondition to valid retrenchment 51. The

conditions u/s 25N are mandatory and non-compliance of these requirements will render the

retrenchment illegal and inoperative and the workmen will be entitled to all benefits52.If the

provisions are not complied with in the presence of a contract to the contrary, the retrenchment

45
Compromis, para 3 and 4.
46
The Factories Act, 1948, Section 2(m).
47
Industrial Disputes Act, Section 25-L; Definition of ‘industrial establishments’.
48
Industrial Disputes Act, 1947, Section 25N(1)(a).
49
Id., section 25N(1)(b).
50
Id., section 25N(9).
51
State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610.
52
Indian Farmers Fertiliser Co-op Ltd v. Industrial Tribunal (I), Uttar Pradesh Allahabad 1991 Lab IC 1747.

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ 8

will still be invalid and void53. Additionally, the power granted to the appropriate government

to give permission for retrenchment is not unreasonable54.

22. When an industry is an ‘industrial establishment’ according to the definition u/s 25-L (a)(i) of

the Act, the conditions u/s 25N must be strictly complied with55. If workers are retrenched

without permission of the Government, they are entitled to reinstatement and back wages 56.

The retrenchment can be for any reason whatsoever57. The reasons of termination are not

limited to any particular class and need not be only on economic grounds such as redundancy58.

23. The retrenchment compensation as u/s 25N (9) is payable at the time of retrenchment as this

provision has been created in favour of the workmen59. If the retrenchment order is invalid and

void-ab-initio, subsequent payment of compensation cannot validate the act60.

24. The discharged employees were only paid wages for 1 month and not three as specified u/s

25N of the Act. AIESL did not apply for permission to retrench 100,000 workers and

retrenchment compensation of 15 days’ average pay was also not paid. Thus, it is humbly

submitted that the process of discharge of employees is in violation of the Act.

I 3: WHETHER THE EXERCISE OF RIGHTS BY THE INVESTOR AMOUNTS TO ‘CONTROL’ AS PER

SEBL TAKEOVER REGULATIONS, 2011?

53
EID Parry (I) Ltd. v. Labour Court, Guntur (1992) 2 LLJ 580.
54
Workmen at Meenakshi Mills v. Meenakshi Mills Ltd. (1992) 2 LLJ 295, 309(SC).
55
Shaw Wallace Gelatines Ltd. v. OP Singh (2001) 4 LLN 503 (MP).
56
Hindustan Wire Products Ltd. v. Jaspal Singh, (2001) 3 LLN 821 (SC).
57
The Industrial Disputes Act, No. 14 of 1947, INDIA CODE, 1993, VOL 13. Section 2(oo).
58
Delhi Cloth and General Mills Co. Ltd. v. Shambu Nath Mukherjee, 1978 AIR 8.
59
Adaishwar Laal v. Labour Court, 1970 Lab IC 936, 941 (Del).
60
National Iron and Steel Co. Ltd. v. State of West Bengal, (1967)2 LLJ 23 (SC).

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ 9

25. The exercise of rights by the investor amounts to control as per SEBL Takeover Regulations,

2011 as ‘control’ is defined as the right to appoint majority of directors of to control the

management or policy decisions exercisable by a person by virtue of their shareholder or voting

agreements61. The inclusive definition of the term ‘control’ protects the circumstances even

when there has been no acquisition of shares. Any change in ‘control’ would impact the

company’s policies and business prospects. A ‘change in control’ and not ‘change in

management’ is crucial for a public offer to be made62 .

26. The existence or non- existence of control over a listed company would be a question of fact,

or a mixed question of fact and law, to be answered on a case to case basis63, dependent on the

facts and circumstances surrounding each case64. It was also suggested that the definition of

‘control’ must be amended to include even the ability of the investor to influence management

decisions of the Target Company65. The Regulations also provide for a quantitative threshold

for acquisition of control. Regulation 3 of the Takeover Code66 mandates any investor

acquiring more than 25% shares or voting rights to make a public offer as there is a ‘substantial

acquisition of shares’ in the target company.

27. An open-ended definition of control is understandable as it is a “term of wide connotation and

amplitude67.If a contractual requirement states that the target company obtain the prior

61
SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011, Section 2(1)(e).
62
Justice P. Bhagwati Committee Report on Takeovers, 1997, 6.3 (Takeovers).
63
Report of the Takeover Regulations Advisory Committee, p. 29, 3.3 (July 19, 2010)
64
Id., p. 29, 3.5
65
Id.
66
Substantial Acquisition of Shares or Voting Rights, Regulation 3, SEBI (Substantial Acquisition of Shares and
Takeover Regulations), 2011.
67
Ashwin K Doshi v. Securities and Exchange Board of India, 2004 SAT 112.

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ 10

approval of the acquirer on certain major matters concerning its affairs, it amounts to

acquisition of control68. The Discussion Paper on ‘Brightline Tests for Acquisition of Control’

provides an indicative list of affirmative/veto rights which would not amount to ‘acquisition

of control’69. Veto rights will be deemed protective only if they do not interfere will day to day

matters and policy decisions70. ‘Management control’ is when the acquirer has a say through a

contract in the day-to-day affairs or the regular business of the target71.

28. However, MCA opined that changing the current inclusive definition of ‘control’ may reduce

regulatory scope and may be prone to abuse72. Hence it would be more appropriate to take

decisions on a case to case basis. The Supreme Court has left the question of ‘acquisition of

control’ open to interpretation by SEBI73. The attempt made by SAT to define ‘control’ was

overturned by the Supreme Court74. Hence, though checks and balances by the investor do not

amount to ‘control’, formulating policies of the same leads to acquisition of ‘control’75.

29. Presently, the investor started exercising its veto rights in multiple affairs of the company

including operating procedures for line maintenance, base maintenance and engine overhaul.

These activities of AIESL are their daily affairs and are intricately linked to the policy of the

68
Rhodia SA v. Securities and Exchange Board of India, (2001) 45 CLA 422.
69
Discussion Paper on “Brightline Tests for Acquisition of ‘Control’ under SEBI Takeover Regulations”, (March
2016) available at https://www.sebi.gov.in/sebi_data/attachdocs/1457945258522.pdf
70
Id.
71
Umakanth Varotil, Comparative Takeover Regulations and the Concept of ‘Control’, SING JLS, 208, 228 (2015).
72
Press Release- Acquisition of Control under SEBI (Substantial Acquisition of Shares and Takeovers) Regulations,
2011, PR No. 56/2017 (September 2017).
73
SEBI v. Subhkam Ventures (I) Pvt. Ltd. (2010) SAT 35.

Id., ‘Keeping in view the above changed circumstances, it is in the interest of justice to dispose of the present
74

appeal by keeping the question of law open and it is also clarified that the impugned order passed by the SAT will
not be treated as a precedent’
75
In re., Kamat Hotels (I) Ltd WTM/GM/EFD/DRAIII/20/MAR/2017, para 21.

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ 11

company. Hence, such positive rights of the investor amounts to ‘acquisition of control’.

Moreover, the investor acquired 40% shares along with voting rights, thus making it a

substantial acquisition. Any recommendation or influence in this matter will have a binding

effect on the decisions of the company. Thus, it is humbly submitted that the exercise of rights

by the investor amounts to control as per SEBL Takeover Regulations, 2011.

I 4: IN THE LIGHT FACTUAL MATRIX, WHETHER THE EMPLOYEES CAN EXERCISE THE ESOPS
EVEN AFTER BEING DISCHARGED FROM THE EMPLOYMENT? 


30. It is contended that the discharged employees can exercise ESOPs as [4.1] Options have been

vested in the employees and [4.2] The vested options can be exercised.

4.1 Options have been vested in the employees

31. Vesting is defined in regulation 2(1)(zi) of the SEBI (Share Based Employee Benefit)

Regulations, 201476 as the process by which an employee is granted the right to exercise issued

ESOPs. Similarly, vesting period, as defined in regulation 2(1)(zj)77, means the period during

which the vesting of the option granted to the employee in pursuance of ESOS takes place.

32. ESOPs can be vested in the form where no options can be exercised till end of the period, where

the options accrue at periodic intervals, or where there is a proportionate change over the years

of vesting period78.Regulation 18(2) provides for an optional lock-in period & the same must

be notified at the time of issuing79. Hence, there is no delay before which the ESOPs can be

76
SEBI (Share Based Employee Benefit) Regulation, 2014, Regulation 2(1)(zi).
77
Id, Regulation 2(1)(zj).
78
Infosys Technologies Ltd. v. Deputy Commissioner Of Income Tax, 297 ITR 147.
79
SEBI (Share Based Employee Benefit) Guidelines, 2014, Regulation 18(2).

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ 12

exercised by the parties, and the vesting period starts from the date of issuance of the scheme80.

Where no method has been prescribed, the options are to be accrued by the employees over

three years, getting vested with 1/3 of the options every year81.

33. If the options are not claimed, the accounting of the options issued, and the discount on the

same, is essential82. Once, certain accounting variables are recorded in the books of a company,

the same must accrue in the real life to the employees83. In Biocon Ltd. v. DCIT84, the ESOPs

were to be issued by the end of four years, but 25% were vested annually.

34. Presently, the Employee Stock Exchange Plans (ESOPs) were issued to the employees on

September 201585. Thereafter, the employees were discharged from employment in January

201786. Hence, one year’s worth of stock options have been vested with the employees.

4.2 Vested options can be exercised

35. The options can be claimed by a discharged employee. Regulation 9.687 states that in the event

of resignation or termination of the employee, all options not vested as on that day shall expire.

However, the employee shall be entitled to retain all vested options. This provision is not to be

merely illusory and a remedy must exist to give it meaning88. This remedy must be in form of

80
Vijay Gopal Jindal v. ACIT Cir 23(1), New Delhi, [2011] ITAT 1105
81
Biocon Ltd. v. DCIT, (2013) 144 ITD 21 (Bang.).
82
DCIT-2(3)(2) v. Kotak Mahindra Bank Ltd., [2018] 168 ITD 529(Mum).
83
Suryakant Sandibigraha and Ors. v. The State Govt. of NCT of Delhi, 2018 SCC Online Del 11449.
84
Biocon Ltd. v. DCIT, (2013) 144 ITD 21 (Bang.).
85
Compromis, para 3.
86
Compromis, para 4.
87
SEBI (Share Based Employee Benefit) Regulations, 2014, Reg. 9.6.
88
Siegel v. First Pennsylvania Banking and Trust Co, 201 F. Supp. 664 (E.D.Pa. 1961)

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ 13

enforcement of the options after termination or retirement89. The Liability of a company gets

crystalized upon the grant of options to the employees and thereafter the option is with

employees to exercise such grant and on which the assessee company had no control90.

Exceptions are only in cases like that of termination due to misconduct in a company91.

36. As discussed earlier, certain options are already vested to the employees, prior to the discharge

of employment. Moreover, it was submitted already that the termination from employment was

invalid92. Hence, it is submitted that the petitioners be entitled to exercise the ESOPs issued to

them, irrespective of whether they are still in employment of the company or not.

I 5: IN THE PRESENT INDUSTRIAL SCENARIO, WHETHER THERE IS A NEED TO MOVE LABOUR

LAWS FROM THE CONCURRENT LIST TO THE STATE LIST OF THE CONSTITUTION OF LAPINDA.

37. It is contended that Entries pertaining to Labour Laws be transferred from List III93 to List II94

of the Constitution95 as [5.1] The labour law regime in Lapinda would be more functional in

the State List, and [5.2] Status-quo breaches the fundamental rights of employees.

[5.1.] The labour law regime in Lapinda would be more functional in the state list.

89
Pramod Lele v. Department of Income Tax, (2011) 47 SOT 363 (Mum)(Trib).
90
People Interactive (I) Pvt. Ltd. v. Department of Income Tax, TS-129-ITAT-2012.
91
Assistant Commissioner of IT v. Shri Param Paul Uberoi, 2012 SCC OnLine ITAT 16694.
92
Compromis Para 4
93
‘Concurrent List’, INDIA CONST., 1950.
94
‘State List’, INDIA CONST., 1950.
95
Jayant Verma v. Union of India, (2018) 4 SCC 743.

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ 14

38. A disparity between the laws governing labourers in various states exists, and an expensive

spirit of procrastination is cultivated in the states to combat such issues96. The resultant

statutory framework impairs proper governance. This warrants a serious degree of change97.

39. The subjects contained in Entries 22, 23, and 24, of List III98, shall better serve the interests

that they seek to protect if they were placed in List II. Due to the vast number of legislations,

and ambiguities99 in and disparities100 between the central and the state legislations,

uncertainties in the language adversely affect the judicial interpretation of the provisions101.

40. There are approximately 200 state legislations, and numerous central legislations; on Labour

Law, which are elaborate, and ambiguous, with an alarmingly high degree of incoherency with

other laws102. The rule of law is compromised, for aggrieved employees are often victims,

justice is often denied, as the loopholes are sought to be exploited by the employers103.

41. State Governments, are often perversely incentivized to utilize lapses on the part of labour law

regulation, as political currency to malign rival political parties with sway at the centre.104 The

ambiguity felt in the labour law framework within the nation is further aggravated as a result

of a slow mechanism to implement reform. Amendments are and state statutes are inadequate.

96
B.R. Singh v. Union of India, (1989) 4 SCC 710.
97
Saurabh Chaudhri v. Union of India, (2003) 11 SCC 146.
98
Jindal Stainless Steels Ltd. v. State of Haryana, (2017) 12 SCC 1.
99
Chief Inspector of Mines v. Karam Chand Thapar, (1962) 1 SCR 9.
100
Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1.
101
Tarem Singh v. State of Punjab, (1994) 5 SCC 392.
102
R. Mitchell & P.G. Gahan, The Evolution of Labour Law in India: An Overview and Commentary on Regulatory
Objectives and Development, 1 ASIAN JOURNAL OF LAW AND SOCIETY 413, 413-451 (2014).
103
Express Newspapers (P) Ltd. v. Union of India, 1959 SCR 12.
104
In re, The Punjab Termination of Agreement Act, 2004, (2016) 16 SCC 804.

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ 15

[5.2] Status-Quo is a breach of the fundamental rights of employees.

42. It is contended that Courts attempt to safeguard the fundamental rights of employees105.

Industrial Disputes can be adjudged in the interest of justice, equity, and good faith, as the

interests of the public demand the same106. Many cases mirror instances of liberal

interpretation107. The inflexibility of labour laws leads to a disparity between the work

conditions in different parts of the nation & leads to an arbitrary distinction between the

conditions experienced by the subjects. This is aggravated by the ambiguity of unnecessarily

diverse legislations, and leads to delayed pronouncements by the Courts on the same108.

43. It violates Article 14 of the Constitution, which requires for the absence of arbitrariness without

reasonable classification109. The lack of incentive of the states to legislate on crucial labour

issues violates the rights of the employees u/A 21 of the Constitution of Lapinda110.

44. The contemporary needs from the system of labour law within Lapinda are not met by the

framework. It raises procedural concerns for the employees of AIESL as it is an industry spread

over various bases and line stations across states, thus making the application of both Central

and State legislations a hassle. This exigency, it is submitted, provides a commendable juncture

for the Apex Court to move Labour Law from List III to II.

105
People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235.
106
Raghubir Singh v, Haryana Roadways, (2014) 10 SCC 301.
107
Indian Drugs & Pharmaceuticals Ltd. v. Workmen, (2007) 1 SCC 408, see also Regional Manager SBI v. Raja
Ram, (2004) 8 SCC 164.
108
Workmen v. Bhurkunda Colliery of Central Coalfields, (2006) 3 SCC 297.
109
State of Kerala v. N.M. Thomas, AIR 1976 SC 490.
110
Alagaapuram R. Mohanraj v. T.N. Legislative Assembly, (2016) 6 SCC 82.

MEMORIAL ON BEHALF OF PETITIONER

 ~SURANA AND SURANA LABOUR LAW MOOT COURT COMPETITION 2018~ 16

PRAYER

Wherefore, in light of the issues raised, arguments advanced, and authorities cited, may this
Hon’ble Court be pleased to:

1. AFFIRM that the present industrial scenario does not necessitate the revision of the term
industry as u/s 2(j) of the Industrial Disputes Act, 1947.
2. UPHOLD that AIESL is an ´industry´ u/s 2(j) of the Industrial Disputes Act, 1947 and the
‘triple test’.
3. DECLARE that the discharge of employees by AIESL violates the special provisions
under Chapter V-B of the Industrial Disputes Act, 1947 and due to this, the employees are
entitled to reinstatement and back wages.
4. HOLD that the exercise of rights by the investor does amount to ‘Control’ as per the SEBL
Takeover Regulations.
5. AFFIRM that the Employee Stock Option Plans can be exercised by the discharged
employees after their termination from AIESL.
6. DECLARE that the Labour Laws be moved from the Concurrent List (List III) to the State
List (List II) of the Constitution of Lapinda.

AND/OR
Pass any other Order, Direction, or Relief that this Hon’ble Court may deem fit in the interests
of justice, equity and good conscience.

For this act of Kindness, the Petitioners, as in duty bound, shall humbly pray.

Place:

Date:

Sd/-

(Counsel for the Petitioners)

MEMORIAL ON BEHALF OF PETITIONER