Petitioner Aug

TC -
1ST LAWSCHOLE VIRTUAL MOOT COURT COMPETITION, 2020
IN THE HON’BLE SUPREME COURT OF GEORGOPOL
SLP
(U/A 136 OF THE CONSTITUTION OF GEORGOPOL)
SLP NO. ................ OF 2020

IN THE MATTER OF:
UNION OF GEORGOPOL AND ORS. PETITIONER
v.
PRINCETON PRIVATE LIMITED RESPONDENT
ON SUBMISSION TO THE REGISTRY OF THE COURT OF THE HON’BLE SUPREME

COURT OF GEORGOPOL
Memorial on Behalf of The Petitioner

TABLE OF CONTENTS
i|Page
[MEMORIAL FOR THE PETITIONER]

LIST OF ABBREVIATIONS
¶ Paragraph
% Percent
§ Section
AIR All India Reporter
Art. Article
Cal Calcutta
COW Code Of Wages
Const. Constitution
DMA Disaster Management Act
DPSP Directive Principles of State Policy
EDA Epidemic Diseases Act
HC High Court
Hon’ble Honourable
IDA Industrial Disputes Act
MHA Ministry of Home Affairs
NEC National Emergency Committee
Ors. Others
POW Payment Of Wages
SC Supreme Court
SCC Supreme Court Cases
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INDEX OF AUTHORITIES
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STATEMENT OF JURISDICTION
Petitioners approach the Hon’ble Supreme Court of Georgopol under Article 1361 of the
Constitution of Georgopol which gives discretionary power to the Supreme Court of Georgopol
to hear any matter on appeal against the order passed by any court or tribunal in the territory of
Georgopol where justice and equity so demands.
1
“(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave
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.” 2 32. Remedies for enforcement of rights conferred by this Part (1) The right to move the Supreme
Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
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STATEMENT OF FACTS
1998 – Inception of Princeton Pvt.

Ltd., a Fabric manufacturing company
in Mellor City, Bumpkin, Georgopol 11 March, 2020 – SARS-
COV-2 declared as a
pandemic by WHO
EMPLOYEES
20 April, 2020 – Employees decided 14 March, 2020 – SARS

to get an upgrade in their working -COV-2 declared as a
conditions and demanded a hike in notified disaster
salaries. The management assured
the same but no decision was made.
20 March, 2020 – Ministry
of Labour and Employment
issues advisory appealing all
10-17 May, 2020 – Employees employers not to terminate
commissioned a no notice strike the employment or cut the
wages of its workers
29 March, 2020 – Ministry

of Home Affairs requires
employers to pay wages to
ADDENDU all the workers without any
deductions and not
M EMPLOYERS terminate employees during
Petition filed by the lockdown period
Employees
Association of PPL
dismissed by the
Hon’ble labour
commissioner
Employees Association of PPL has
approached the Hon’ble SC of
Then Petition Georgopol.
before Labour
Court was also
dismissed
The matter is reserved for
Writ Petition hearing in front of the Apex
filed by Court on jurisdiction and
Employees final arguments dated 20
Association of July, 2020
PPL before
High Court was
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STATEMENT OF ISSUES
……………………………….. ISSUE I………………………………..
WHETHER THE NOTIFICATIONS ISSUED BY THE MHA ARE INTRA VIRES DM

ACT AND OTHER RELEVANT STATUTES AND AREN’T ADVISORY BUT
MANDATORY?
……………………………….. ISSUE II ………………………………..
WHETHER THE STRIKE BY EMPLOYESS WAS LEGAL AND JUSTIFIED AND ARE
THEY ENTITLED TO WAGES FOR THE STRIKE PERIOD AND ARE THEY
ENTITLED TO INCREMENT AND AN UPGRADATION IN WORKING
CONDITIONS?
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SUMMARY OF ARGUMENTS
I. THAT THE NOTIFICATIONS ISSUED BY THE MHA ARE ILTRA VIRES DM ACT
AND OTHER RELEVANT STATUTES AND AREN’T ADVISORY BUT MANDATORY?
The counsel of Petitioners beseeches the Hon’ble court of the land that the guidelines,
notifications, orders, directions pushed through by the central government are intra vires the
DMA and EDA and cannot be held as advisory but mandatory in nature. The orders dated 24
March, 2020 and 29 March, 2020 are not just in consonance with the constitution but the
government’s decision is for the welfare of people. It is taken with humanitarian intent for
keeping in mind the subsistence of that population which forms the majority of the country as this
health shock has frowned upon these sections putting their daily subsistence in question. In the
times when the states were pushing through neo-liberal and capitalistic decisions and the
employers had starved the employees from their wages after repeated requests, urging, appeals,
advisories from the government, a decision backed up by statutes like those of EDA and DMA
were the need of the hour. The decision opted for by the government stands undefeated even
when passed through tests and touchstone of the constitution of those of Art. 14, Art. 19 and Art.
21 because right to livelihood is there right. The decision is backed by the very terminologies of
the Preamble and DPSP’s. The turning down the only notification mandating the employers for
no deductions in wages and no terminations were looked down by that class of the society and
called for huge hue and cry while on the other hand the other mandates received full respect and
obeisance clearly communicates their intention that profit is all they care for.
II. THE STRIKE BY EMPLOYESS WAS LEGAL AND JUSTIFIED AND THEY ARE
ENTITLED TO WAGES FOR THE STRIKE PERIOD
Employees and Employers are two wheels of the engine of the organisation which helps it to
prosper but the situation of health shock that the entire world is facing at present has invited a
huge havoc and discontent among its people in terms of both economical and sociological aspects
leading to disequilibrium. This situation has posed various questions of paramount importance,
one of them being whether the wages have to be paid or not. The answer to which is very clear
that as the contract of employment stands strong and it is the responsibility of the employers to
vii | P a g e

pay wages, there shouldn’t be any deductions whatsoever. The question of increase in payment of
wages is very much a part of the contract and is the right of the employees and moreover, the
management fully well versed with the present pandemic assured the same not just once but
multiple times. The question of strike when posed answers the same as it being legal, reasonable
and justified as the decision prompted after various altercations and assurances from April to the
start of May, looking at the present situation and expenditure going up the action taken by the
employees was need of the hour and their right. The working conditions which the workers are
exposed to is not up to the mark and is unfit for the workers. Clean and sanitised working
conditions are significant and demanding an upgradation in the same is something which cannot
be questioned.
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ARGUMENTS ADVANCED
I. THAT THE ORDERS ISSUED ARE INTRA VIRES
(¶ 1.) The Health shock2 the country is facing at present demanded a bold action from the
government3 and it is very clear that the biggest and the most adverse is on the poor the
migrant labour, and other marginalised sections4. While there is no specific fundamental right
to food, health care, shelter, etc., Art. 215 of the Constitution which provides that no person
shall be deprived of his life and liberty without a procedure established by law, has been given
a wide interpretation by the Supreme Court which has broadened the definition of life to not
just include “mere animal existence6” but the right to live with human dignity which includes
the right to livelihood.7
(¶ 2.) Thus it is not merely a moral or legal obligation of the State to look after the people but
also the right of the people to demand and obtain these very essentials from the State. 8 The
government using the pandemic has pushed through a lot of advisories, guidelines,
notifications, and orders for people’s welfare. This can be proved on the following grounds: -
[A] SC has no authority to interfere, [B] These guidelines strengthen the touchstone of the
constitution, [C] Evaluating the various related acts.
A. The supreme court has no authority to interfere
2
Manoj Mohanan, Casual Effects of Health Shocks on Consumption and Debt: Quasi-Experimental Evidence
from Bus Accident Injuries, THE NATIONAL CENTER FOR BIOTECHNOLOGY INFORMATION (Aug. 20, 2020,
10:30 am), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5166431/.
3
Antony Oliver, UK business demands bold action from new government on infrastructure and skills,
INFRASTRUCTURE INTELLIGENCE (Aug. 20, 2020, 10:45 am), http://www.infrastructure-
intelligence.com/article/may-2015/uk-business-demands-bold-action-new-government-infrastructure-and-skills.
4
Team Lounge, How to help the most vulnerable during the covid-19 lockdown, LIVEMINT (Aug. 20, 2020,
10:45 am), https://www.livemint.com/mint-lounge/features/how-to-help-the-most-vulnerable-during-the-covid-
19-lockdown-11585631303316.html.
5
GEORGOPOL CONST. art. 21.
6
Mihir Desai, COVID-19 and the Indian Supreme Court, CITIZENS FOR JUSTICE AND PEACE (Aug. 20, 2020,
10:45 am), https://cjp.org.in/covid-19-and-the-indian-supreme-court/.
7
People’s Union for Democratic Rights v. Union of India, A.I.R. 1982 S.C. 1473 (India).
8
Mihir Desai, COVID-19 and the Indian Supreme Court, BLOOMBERG (Aug. 20, 2020, 10:47 am),
https://www.bloombergquint.com/coronavirus-outbreak/covid-19-and-the-indian-supreme-court.
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(¶ 3.) The SC has been repeatedly saying it cannot substitute its own wisdom for that of the
Executive and it cannot interfere in policy matters. 9 The SC did not issue such a direction, but
it did say that: “We trust and expect that all concerned viz., State Governments, Public
Authorities and Citizens of this country will faithfully comply with the directives, advisories
and orders issued by the Union of India in letter and spirit in the interest of public safety.”10
H.V. Kamath had once said while criticising the clauses on Emergency powers in the
Constituent Assembly Debates: “We trust the executive implicitly.”11
B. The guidelines strengthens the touchstone of the constitution

(¶ 4.) The orders enforced by the MHA are in consonance with the constitution. The action
has been taken by the executive of the country which comes within the definition of state
under Art. 1212, they are not in violation of Part III of the Constitution of Georgopol, they
aren’t void, being in consonance with Art.13(2) 13 of the Constitution, the main objective of
which is to secure the paramountcy of the constitution 14. The state is prohibited from making
any law which abridges rights conferred by the Constitution15, if the state makes such a law
then, it would be ‘still born law’ and void to the extent of such contravention 16. The
aforementioned orders do not violate Art.1417 and Art. 19(1)(g)18 of the Constitution.
i. The order does not violate article 19(1)(g)
(¶ 5.) Art. 19(1)(g)19 guarantees right to practice any profession or to carry on any occupation,
trade or business to all citizens’ subject to Art.19 (6) 20 which enumerates the nature of
9
Prashant Bhushan, The Supreme Court Is Locked Down and Justice Is in 'Emergency' Care, THE WIRE (Aug.
20, 2020, 10:48 am), https://thewire.in/law/lockdown-supreme-court-justice.
10
Alakh Alok Srivastava v. Union of India, A.I.R. 2018 S.C. 2440 (India).
11
Constituent Assembly Debates, Vol. IX, Speech of H.V. Kamath, 536(August 20, 1949). This remark came as
a critique of excluding judicial review during an Emergency.
12
13
GEORGOPOL CONST. art. 13, cl. 2.
14
Renu v. District and Session Judge, Tis Hazari, A.I.R. 2014 S.C. 2175 (India).
15
16
Deep Chand v. The State of Uttar Pradesh, A.I.R. 1959 S.C. 648 (India).
17
18
GEORGOPOL CONST. art. 19, cl. 1, s. cl. g.
19
20
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restriction that can be imposed by the state upon the above right of the citizens. Restriction
means to put a limit on what you can do or limiting the amount or size of something; a fact or
situation that limits you or prevents you from doing what you want to do. Implied restriction is
power to impose restriction upon the right guaranteed under Article 19 (1) (g) must be plainly
expressed in a statute.21 In Narendra Kumar & Ors. v. Union of India & Ors.,22 the hon’ble
court observed that the ‘restriction’ did not mean “deprivation”. There has to be a nexus
between the restriction and the object sought to be achieved and the object must not, itself, be
repugnant to the letter or the spirit of the Constitution.23
(¶ 6.) It is clear that Art. 19(1)(g)24 is not the only right at issue in the present case, but that
Art. 2125 is involved as well. It is further crucial to note that Art. 1426 is also implicated: the
ability and means to work from home is directly related to socio-economic class, and therefore
the Guidelines of closure of 24th March disproportionately impacted workers who are already
the most vulnerable and marginalized in society 27. In formulating the standard of
reasonableness, the SC has taken into account the preamble to the Constitution and the DPSP,
which aim at creation of an ideal social order.28
a. The restrictions imposed are proportional to the objectives of the orders
(¶ 7.) The SC noted that in case there was a clash of two fundamental rights, the doctrine of
proportionality would apply29. Proportionality – in such cases – requires a balancing exercise
21
Anuradha Bhasin v. Union of India , (2019) S.C.C .OnLine S.C. 1725 (India).
22
Narendra Kumar v. Union of India, (1960) 2 S.C.R. 375 (India).
23
24
25
26
27
Gautam Bhatia, Coronavirus and the Constitution – XXXI: The Payment of Wages Order, INDIAN
CONSTITUTIONAL LAW AND PHILOSOPHY (Aug. 20, 2020, 11 am),
https://indconlawphil.wordpress.com/tag/right-to-livelihood/.
28
Lovely Tokas, Directive Principles of State Policy (DPSPs), LEGAL SERVICE INDIA (Aug. 20, 2020, 11 am),
http://www.legalserviceindia.com/legal/article-916-directive-principles-of-state-policy-dpsps-.html.
29
Justice K. S. Puttaswamy (Retd.) v. Union of India, (2017) 10 S.C.C. 1(India); Chintaman Rao v. State of
Madhya Pradesh, A.I.R. 1951 S.C. 118 (India); State of Madras v. V.G. Row, A.I.R. 1952 S.C. 196 (India)`;
Mohd. Faruk v. State of Madhya Pradesh , A.I.R. 1970 S.C. 93, (1970) 1 S.C.R. 156 (India); Om Kumar v. Union
of India, (2001) 2 S.C.C. 386 (India) ; Anuradha Bhasin v. Union of India, (2019) S.C.C .OnLine S.C. 1725
(India) and Internet and Mobile Association of India v. Reserve Bank of India, (2020) S.C.C. OnLine S.C. 275
(India).
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that ensures that neither of the two rights is effaced. It is clear that no Direction at all would
deprive the workers entirely of their right to livelihood during the period of the lockdown, and
thus effectively efface Art. 21 during that time. 30 On the other hand, it is not evident that a
temporary order for the payment of wages would efface the right under Art. 19(1)(g) 31 (i.e.,
force permanent closure of business). To the extent that it does impose a burden upon
employers – that also flows from State action – there is no doubt that the State ought to pay
compensation. For that, however, there should lie a direct claim against the State for its failure
to protect rights under Art. 19(1)(g)32 after its own action has led to their deprivation.
However, the remedy for that cannot be to throw the other party to the equation – the more
vulnerable and marginalised party – to the wolves, by striking down the payment of wages
order itself.
b. Doctrine of necessity
(¶ 8.) While SC reiterated satisfaction of proportionality standards for any restrictions in

orders/legislations, it is important to analyse Order from the perspective of the Doctrine of
Necessity. Doctrine of Necessity means administrative actions which are designed to restore
order, within the constitutional limits.33 Though not mentioned expressly, the Courts have
applied the doctrine in numerous instances and held that the orders/acts of State in times of
necessity (emergency) are legal. SC observed the doctrine of necessity to be a common law
doctrine and is applied to tide over the situations where there are difficulties 34. In the case
of Election Commission of India and Ors. vs. Subramanian Swamy and Ors, 35 it held that the
Necessity shall be applied to cases where there is an absolute need for its invocation. The
relevant extracts are reproduced herein below:
30
Bhatia, supra note 26.
31
32
33
Prithviraj Senthil Nathan, India: MHA Order Dated March 29, 2020: Proportionality and Necessity
Arguments, MONDAQ, (Aug. 20, 2020, 11:10 am), https://www.mondaq.com/india/constitutional-administrative-
law/932272/mha-order-dated-march-29-2020-proportionality-and-necessity-arguments.
34
Lalit Kumar Modi v. Board of Control for Cricket in India, (2011) 10 S.C.C. 106 (India).
35
Election Commission of India v. Dr. Subramanian Swamy, (1996) 4 S.C.C. 104 (India).
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" It is well settled that the law permits certain things to be done as a matter of necessity which
it would otherwise not countenance on the touchstone of judicial propriety. Stated differently,
the doctrine of necessity makes it imperative for the authority to decide and considerations of
judicial propriety must yield. It is often invoked in cases of bias where there is no other
authority or Judge to decide the issue. If the doctrine of necessity is not allowed full play in
certain unavoidable situations, it would impede the course of justice itself and the defaulting
party would benefit therefrom If the choice is between allowing a biased person to act or to
stifle the action altogether, the choice must fall in favour of the former as it is the only way to
promote decision-making"
(¶ 9.) Similarly, few commentators are of the view that the Supreme Court recently in M.
Siddiq (D) thr. L.Rs. vs. Mahant Suresh Das and Ors 36 popularly referred to as Ayodhya case
exercised its extraordinary jurisdiction under Art. 142 37 of the Constitution and applied the
Doctrine of Necessity to grant relief. It may be pertinent to note the joint reading of its
observations, which are interspersed below:
"The extraordinary constitutional power to pass any decree or order which, in the opinion of
this Court is necessary for doing complete justice embodies the idea that a court must, by
necessity, be empowered to craft outcomes that ensure a just outcome......Whether a belief is
justified is beyond judicial inquiry. Once faith is established, courts should defer to it"
ii. The order does not violate article 14

(¶10.) It cannot be disputed that the lockdown measures enforced by the government under the
DMA had equally adverse effect on the employees as well as on employees 38, but it is the
subsistence of employees which is in question. Employers continue to be privileged sections
of the society. Classifying the different classes on a reasonable basis. The principle of 'no
work-no wages' cannot be applied during the present extraordinary situation prevailing in the
country due to the COVID-19 pandemic.39
36
M. Siddiq (D) Thr. Lrs. v. Mahant Suresh Das, (2019) S.C.C. OnLine S.C. 1440 (India).
37
38
Ficus Pax Private Limited v. Union of India, (2020) S.C.C. OnLine S.C. 503 (India).
39
Rashtriya Shramik Aghadi v.The State of Maharashtra, (2020) S.C.C. OnLine Bom. 634 (India).
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a. Reasonable classification explained

(¶11.) Reasonable classification is such classification which is based upon some real and
substantial distinction bearing a reasonable and just relation to the object sought to be attained,
and the classification cannot be made arbitrarily and without any substantial basis. 40 Right to
equality is violated if the categories are similarly situated 41 but in the instant case Employers
and Employees are not even remotely similarly situated. Every classification is in some degree
likely to produce some inequality, and mere production of inequality is not enough. 42 Selective
prosecution violates the right to equal protection. 43 Selective prosecution is such prosecution
that has a discriminatory effect and it was motivated by discriminatory intent 44 and there was
no such intent. The nexus between the employer and employee is very precise and is
illustrated further. MHA Circular was issued in the public interest and is neither arbitrary nor
capricious, and the ground of incapacity to pay wages is untenable to challenge the exercise of
statutory power.
C. The guidelines are not illegal
(¶12.) The Central Government has the legislative competence to make laws on the subject.
As a subject of legislative competence, disaster management may, thus, impliedly be taken to
be part of the provisions of Art. 24845 dealing with residuary powers of the legislation. By
providing that parliament has exclusive power to make any law with respect to any matter not
enumerated in the concurrent list or state list, Art. 248 46 extends its jurisdiction to the subject
of disaster management in view of the fact that subject does not find mention in any of the list
given in the seventh schedule of the constitution.
Thus the central government has the power to impose clauses against payment of wages
during the lock down period.
i. The epidemic diseases act, 1897 can be invoked
40
Bahadur Singh v. Jaswant Raj Mehta, A.I.R. 1953 Raj. 158 (India).
41
In re: The Special Courts Bill v. Unkown, A.I.R. 1979 S.C. 478 (India).
42
Bahadur Singh v. Jaswant Raj Mehta, A.I.R. 1953 Raj. 158 (India).
43
Wayte v. United States, 470 U.S. 598 (1985); United States v. Armstrong, 517 U.S. 456 (1996).
44
Wayte v. United States, 470 U.S. 598 (1985); United States v. Armstrong, 517 U.S. 456 (1996).
45
GEORGOPOL CONST. art. 248
46
GEORGOPOL CONST. art. 248
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(¶13.) Section 247 of EDA entails the power to take special measures and prescribe regulations
as to dangerous epidemic disease. Paying wages to workers definitely is a measure against the
spread of COVID-19. Without wages, workers cannot afford soaps, sanitation and other health
care and safety requirements.
ii. The payment of wages act
(¶14.) As mentioned in § 5(1)48 of the Payment of Wages Act, 1936, a wage period cannot
exceed a month. Deductions can be made on specified grounds given in § 7 of this Act. § 7(2)
(b)49 permits deduction of wages due to absence from duty. However, absence during
lockdown cannot be treated as absence from duty. Because production has been stopped due
to the lockdown, the absence from duty cannot be attributed to workers only. In fact,
production has stopped because of exigencies backed up by government notifications.50
Payment of Wages Act, 1936, did not foresee a situation like the present one, where there is a
lockdown due to a pandemic. Thus there is no explicit section specifying payment of wages in
case of stoppage of work under extraordinary circumstances.
(¶15.) 25C51 of the Act requires employers employing 50 or more workers who lays off
workmen to pay a compensation equivalent to 50% of the wages. § 25M(1)52 of this Act
requires an industrial establishment with more than 100 workmen to seek prior permission
from the appropriate government or authority. However, such permission is not necessary if
the lay-off is due to a natural calamity.
iii. The industrial disputes act, 1947 cannot be invoked
(¶16.) Settlements between employers and employees are governed by § 2(p)53 and Section
1854 of the IDA, 1947, which provides for written agreements for settlements, arrived at
47
The Epidemic Diseases Act, 1897 (Georgopol).
48
The Payment of Wages Act, 1936 (Georgopol).
49
50
Kingshuk Sarkar, Payment of Wages and Retrenchment in Lockdown Times, NEWSCLICK (Aug. 20, 2020,
11:15 am), https://www.newsclick.in/Payment-Wages-Retrenchment-Lockdown-Times.
51
52
53
The Industrial Disputes Act, 1947 (Georgopol).
54
The Industrial Disputes Act, 1947 (Georgopol).
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outside of conciliation proceedings. Such agreements for settlement would be binding and
would allow employees to get back to work without placing a wedge in maintaining amicable
relations with employers.
(¶17.) Conversely, if negotiations fail, will labour authorities be equipped to adjudicate on a

flood of conciliation proceedings in a timely manner? The potential for delay in such
proceedings will be further aggravated by the fact that courts across the country may not
resume in their full capacity for a few more months, and the fact that employers and
employees’ unions may find it difficult to separate the dispute over wages from the reopening
of businesses that is expected in the coming weeks, if settlements are not reached sooner
rather than later.
iv. The disaster management act can be invoked

(¶18.) The primary argument of the employers turns upon the contention that the DMA does not
grant the central government the power to compel the payment of wages to the workers. The
order itself invoked § 10(2)(l)55 of the DMA, and the employers argue that this provision only
enables guidelines to government authorities, not private entities. Petitioners also contend that §
6556 of the DMA, which allows the NEC to “requisition resources” in order to ensure a prompt
response, and is followed by § 6657, which compels the payment of compensation in case of
requisition, is the only provision under the DMA which authorizes the government to impose
obligations on private parties is § 65. This (or so the argument goes), on its terms, does not allow
a direction for the mandatory payment of wages; and that in any event, even if it does, the terms
of § 66 have not been complied with.
(¶19.) Now, as a legal argument, this contention is very clearly flawed. There are two reasons for
this. The first is that the series of guidelines and orders issued on and after the 24th of March
2020 have not been issued under § 65 of the DMA, but under Sections 10 – in particular, 10(1)
and 3558 of that Act however, as long as these sections remain on the statute books, the power of
55
The Disaster Management Act, 2005 (Georgopol).
56
57
58
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the government to act remains within the framework of the DMA (Section 35, in particular,
authorises the government to take measures that are “expedient” for the purposes of the Act).
(¶20.) More importantly, however, the point is this: the impugned direction in the order of 29th
March cannot be severed from all the other directions that have been passed by the NEC under
the framework of the DMA. These directions – that constitute the warp and the weft of the
lockdown itself – impose obligations upon private parties. These include, for example: the basic
point is that if the Court was to hold that the payment of wages direction is unconstitutional
because the DMA denies to the government the power to impose obligations upon private, then it
would necessarily follow that the lockdown itself – which is nothing more than a web of
interlocking obligations imposed upon private parties – is itself unconstitutional, as a whole. or
to put it another way: in order to enforce the lockdown, the government imposed a series of
obligations and restrictions upon a whole host of private parties and individuals, that have put
them to a significant amount of hardship. It would be oddly asymmetrical if
those restrictions were upheld, but directions to mitigate their impact upon some of the most
vulnerable and marginalised segments of society, were struck down for want of power.
II. THE STRIKE BY EMPLOYESS WAS LEGAL AND JUSTIFIED, THEY ARE
ENTITLED TO WAGES FOR THE STRIKE PERIOD AND THEY ARE ENTITLED
TO INCREMENT AND AN UPGRADATION IN WORKING CONDITIONS
(¶21.) Employers and employees are the two wheels of the engine of an organization which
help it to prosper but the outbreak of the pandemic has led to the disequilibrium between them
and the world has been irrevocably altered. This situation has given way to various questions
of fact and of law the most significant one of which is “whether wages should be paid to the
employees for the lockdown period or not?” the answer to this question is given in the
following submissions in four folds namely: [A] The right to wages is a pre-existing right
flowing from labour laws and articles 14 and 21 of the Constitution; [B]The ground of
incapacity to pay wages is untenable to challenge the exercise of statutory power; [C] MHA
circular was a measure to mitigate the financial hardship of labourers and employees; [D] The
strike was legal and justified; [E] The doctrine of no work-no pay is not applicable.
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A. The right to wages is a pre-existing right flowing from labour laws and articles 14 and
21 of the constitution
(¶22.) Georgeopol is a welfare state and the Constitution makes it imperative for the State to
secure to its citizens’ rights guaranteed by Constitution. Art. 21 of the Constitution of
Georgeopol which guarantees to every citizen protection of his life and personal liberty, is
repository of all important human rights which are essential for a person or a citizen. When there
is a natural calamity the State as guardian of the people (Parens Patria) is obliged to provide
help, assistance and support to the victims of such natural calamities to help them to save their
lives.
(¶23.) Black’s Law Dictionary59 defines ‘parens patria’ as: “The State regarded as a sovereign;
the state in its capacity as provider of protection to those unable to care for themselves.”
In Heller vs. DOE60, Kennedy, the Judge observed:“ The State has a legitimate interest under its
parens patriae powers in providing care to its citizens who are unable to care for themselves.”
(¶24.) The DPSP as well as the Fundamental Rights enshrined in our Constitution make it
imperative for the State to secure to all its citizens the rights guaranteed by the Constitution and
where the citizens are not in a position to assert these rights, the State comes into picture and
protects the rights of such Citizens61.
(¶25.) The Preamble to our Constitution read with Art. 38, Art. 39 and Art. 39A makes it
amply clear that the State must take up these responsibilities. The State must strive to promote
social, economic and political welfare of the people. A harmony needs to be maintained
between the Fundamental Rights and the DPSP by the State so as to effectively discharge its
commitments towards the people. While discharging these commitments, the state may even
deprive some rights and privileges of the individual victims or their heirs to protect their other
important rights in a better manner and secure the ends of social welfare.
59
Garner, B. A., & Black, H. C. (2009). Black's law dictionary. 9th ed. St. Paul, MN: West.
60
509 U.S. 312 (1993).
61
Charan Lal Sahu Etc. v. Union Of Georgeopol And Ors., AIR 1990 SC 1480.
10 | P a g e

(¶26.) The pandemic has created a socio-economic condition fortuitous for regimes ready to
crop hard-earned rights of workers and the vulnerable. This ruthless attack on democratic
and constitutional rights is ominous. What emerges clearly is the regression to the days
when the Bastille was stormed, where worker’s rights are concerned. Art. 21 of the
Constitution gives the right to every citizen to have access to all the minimal requirements of
living with dignity and consequently obligates the State to provide these minimal facilities to
them especially when they are deprived of these on account of the orders of the State (even
when such orders are required for dealing with disasters). Art. 21 guarantees human dignity,
which in turn guarantees further rights.
(¶27.) In Francis Coralie Mullin v Union Territory of Delhi 62 Hon'ble Bhagwati J. (as he then
was) opined for a two Judge Bench of this Hon'ble Court: “The fundamental right to life
which is the most precious human right and which forms the ark of all other rights must
therefore be interpreted in a broad and expansive spirit so as to invest it with significance and
vitality which maybe endure for years to come and enhance the dignity of the individual and
the worth of the human person..” Similar views were given in the landmark judgment of M
Nagraj v. union of Georgeopol63
(¶28.) In any case, the fundamental rights of all persons under Art. 2l obligate the government
to provide food, healthcare and shelter and all the basic necessities for leading a dignified life
to these migrant workers. It is therefore essential for enforcement of the rights of these
workers under Article 2l and, for enforcing the obligations of the government under the
National Disaster Management Act for the central or State governments to be complied to pay
the wages of these migrant workmen.
(¶29.) Moreover, the employees are entitled to wages because the doctrine of reasonable
classification would come into play in this situation and thus the employees have to be treated
as a separate class from the employers and both cannot be treated as being equally affected by
the pandemic. It is true that the epidemic has affected both the employer and the employee
62
(1981) 1 SCC 6O8.
63
(2006) 8 SCC 212.
11 | P a g e

equally i.e. both of them are not free to move out of their houses. However, in terms of
financial impact, the employees are worst affected as their survival is totally dependent on
their wages.
(¶30.) Employee, more so of the workmen category, as a class has to be treated separately for
a definite object sought to be achieved namely to ensure that they strictly follow the lockdown
and social distancing norms in the present situation. It is well known fact that in the absence of
employment, many labourers had come out on road and had started walking towards their
native places. Such widespread movement of large number of human beings is definitely
dangerous and contrary to the efforts of containment of the disaster.
B. The ground of incapacity to pay wages is untenable to challenge the exercise of statutory
power
(¶31.) Employers should follow the motto that, “Morality forbids what the law doesn’t” and at
least on that principle alone pay their workers. The government’s active interference in the
dynamics between employers and employees has been to prevent inequality in bargaining
power and to add further value to the beneficial nature of the labour legislations.
However, the refusal to pay wages on the ground of financial hardships is not legally tenable.
Payment of wages has been refused by companies having reserves of profits saved in their
bank accounts citing financial hardship and cash crunch. In this crucial time, it is important to
acknowledge the hardship faced by employees for whom their salary will make the difference
between destitution and the ability to fight another day.
(¶32.) The Centre has justified in the Supreme Court its March 29 direction asking private
establishments to pay full wages to workers during the COVID-19 lockdown and said that
employers claiming incapacity in paying salaries must be directed to furnish their audited
balance sheets and accounts in the court.64
64
PTI, Employers claiming incapacity in paying wages must place balance sheets in court, THE
ECONOMICTIMES, (Aug19, 2020, 3:02 pm)
https://economictimes.Indiatimes.com/news/economy/policy/employers-claiming-incapacity-in-paying-wages-
must-place-balance-sheets-in-court-centre-to-sc/articleshow/76192443.cms?from=mdr.
12 | P a g e

(¶33.) At a time when unemployment is on a rise globally, the government is doing all it can
to ensure that employer-employee relations are amicable and flexible enough to gradually
reverse the worrying trend. The government wants to reduce or mitigate the loss which can be
suffered by the workers due to stoppage of work in various factories/ establishments, which is
very appreciable and demands a standing ovation for the thought and intent.
C. MHA circular was a measure to mitigate the financial hardship of labourers and
employees
(¶34.) During the period of the lockdown, workers are in want of increased wages and
compensation in light of the hike in prices of food and essentials. Additionally, the present
situation also fastens increased expenses on workers for extra sanitation necessities and
hygiene products such as soaps, masks, gloves etc. for adequate personal protection.
Moreover, despite the closure of most functions, all expenses of the workers remain fixed and
unchanged, which include school fees, rent, loan repayments, electricity, food, etc. In fact,
some of these costs have also increased as the cost of the basic essentials has also increased.
(¶35.) A careful reading of the advisories and orders of the Central and State Governments
will show that the rationale for the direction to the private establishments to pay
wages/salaries and not terminate the employees is to “not weaken their financial condition’
and ‘mitigate the economic hardship’ the employees will face during the lock down period
which could have a direct impact on their right to life and livelihood - to live with dignity.
(¶36.) The POW Act 1936 states that a wage period cannot exceed one month65. Deductions
can be made on specified grounds given in § 7 of this Act. § 7(2)(b) permits deduction of
wages due to absence from duty. However, absence during lockdown cannot be treated as
absence from duty. Because production has been stopped due to the lockdown, the absence
from duty cannot be attributed to workers only. In fact, production has stopped because of
exigencies backed up by government notifications.
65
POW Act,§ 5(1) (Georgopol).
13 | P a g e

(¶37.) POW Act, 1936, did not foresee a situation like the present one, where there is a
lockdown due to a pandemic. Thus there is no explicit § specifying payment of wages in case
of stoppage of work under extraordinary circumstances. It is assumed that wages are payable
only when work is being done and there is no provision to pay wages when no work is being
done. Thus this Act may not be sufficient to be invoked to ensure payment of wages in
today’s circumstances.
(¶38.) It is in the light of this truism that the case of Workmen v. Binny Ltd66, should be
viewed, wherein it was said that:
“...it is a trite law that in matters of welfare legislation, especially involving labour, the terms
of contracts and the provisions of law should be liberally construed in favor of the weak.”
(¶39.) Paying wages to workers definitely is a measure against the spread of COVID-19.
Without wages, workers cannot afford soaps, sanitation and other health care and safety
requirements. The termination of employee from the job or reduction in wages in this scenario
would further deepen the crises and will not only weaken the financial condition of the
employee but also hamper their morale to combat their fight with this epidemic.
(¶40) It is in this view that the various orders and advisories have been passed by the
government.
D. The strike was legal and justified
i. Strike declared by workers was completely legal and justified

(¶41.) Workers did not break any law and the strike was outcome of the arbitrary policies of
the management.
(¶42.) In the present case, strike was justified because it was outcome of the consciously
chosen silence of the management on the matter of working conditions and increments raised
by the employees. During the period of the lockdown, workers are in want of increased wages
66
1973 AIR 353, 1972 SCR (3) 462.
14 | P a g e

and compensation in light of the hike in prices of food and essentials. Additionally, the present
situation also fastens increased expenses on workers for extra sanitation necessities and
hygiene products such as soaps, masks, gloves etc. for adequate personal protection.
(¶43.) It was held in the case of Swadesh Industries Ltd v Their Workmen 67, the first and
foremost requirement of a justified strike is that it should be launched only for economic
demands of workmen like basic pay, dearness allowance, bonus, provident fund, gratuity,
leave and holidays etc., which are the primary objects of a trade union. The political
considerations cannot supply and good answer to legal obligations. The economic demands
should be prima facie reasonable.
(¶44.) It is significant to mention that, Hon`ble Apex Court has stated that in determining the
justifiability of the strike, service conditions of the workmen, causes which led to strike and
nature of demands has to be seen.68
ii. Strike declared by workers was completely valid in the eyes of the law
PPL owns fabric manufacturing plants, meaning thereby, it is a non-public utility service
because garment and fabric manufacturing industries have not been declared public utility
service by either the central government or state government. Thus, the strike was legal
because in case of non-public utility services, strike can be declared without giving notice.69
(¶45.) It is pertinent to notice that, in Crompton Greaves Ltd. v. Workmen70, it was held that in
order to entitle the workmen to wages for the period of strike, the strike should be legal and
justified. A strike is legal if it does not violate any provision of the statute. It cannot be said to
be unjustified unless the reasons for it are entirely perverse or unreasonable. Whether
particular strike is justified or not is a question of fact, which has to be judged in the light of
the fact and circumstances of each case.
67
AIR 1960 SC 1258, 1960 (1) FLR 576, (1960) IILLJ 78 SC.
68
Syndicate Bank & Anr. v. K. Umesh Nayak, AIR 1995 SC 319.
69
As per §s 22 & 23, Industrial Disputes Act, 1947 (Georgopol).
70
AIR 1978 SC 1489, 1978 (36) FLR 329, 1978 LablC 1379, (1978) IILLJ 80 SC, (1978) 3 SCC 155, 1978 (10)
UJ 366 SC.
15 | P a g e

(¶46.) The employees of PPL had expressed their dissatisfaction with the working conditions
and their dire and urgent need for increments in order to sustain their living amidst lockdown.
However the callous and indecisive attitude of the management pushed the employees to call
for a strike.71
(¶47.) The constitutional bench in Syndicate Bank v. K. Umesh Nayak72 decided the matter, the
Supreme Court held that a strike may be justified or unjustified depending upon several factors
such as the service conditions of the workmen, the nature of demands of the workmen, the
cause led to strike, the urgency of the cause or demands of the workmen, the reasons for not
resorting to the dispute resolving machinery provided by the Act or the contract of employment
or the service rules provided for a machinery to resolve the dispute.
E. The doctrine of no work-no pay is not applicable
(¶48.) The no work-no pay policy means that if the employee does not come to work without
giving any justification, then the employee is not entitled to salary compensation. However it is
pertinent to note that on 12th May 2020, the Aurangabad Bench of the Bombay High Court
observed that during this present time of COVID-19, the principle of no work-no pay cannot be
made applicable by the employers as these are extraordinary circumstances and the courts cannot
be insensitive to the plight of such workers face unfortunately on account of the Covid-19
pandemic73.
(¶49.) The Hon’ble Court can take judicial notice of the fact that one of the worst pandemics in
the history of humankind (the COVID-19 pandemic) is presently afoot. In such a situation the
Government has deemed it necessary to have a lockdown. Most workers cannot survive such a
lockdown without wages. As such it is clearly in the nature of a measure to make the lockdown
effective.
71
Express Newspapers Ltd., v Michael Mark, 1963 AIR 1141, 1963 SCR Supl. (3) 405.
72
AIR 1995 SC 319.
73
Rashtriya Shramik Aghadi. Versus The State of Maharashtra and Others, 2020 SCC OnLine Bom 634.
16 | P a g e

(¶50.) The workers’ wages are paid under a contract. The contract is that the worker will get his
wages as long as he is employed and is ready to work. It cannot be read into the contract that he
will not be entitled to wages if the employer is unable to provide him with work. The
establishments which are shut are so shut because they are prohibited from working during the
lockdown. In those establishments where they are permitted to work, the workers are attending
work as per the permissions given. The workers, even though not given work are expected to
abide with all other terms of the contract such as not taking employment elsewhere, not
disclosing trade secrets to rivals, etc. In such a situation it is clear that the contract of service is
valid and subsisting during the lockdown and workers are entitled to wages under such a
contract. The workers are neither absent nor abandoned, they are obeying statutory direction
issued by the government. The statutory/social relation b/w employer and employee stands
continued during this period. Hence, Payment of salary/ wages in normal circumstances is a
contractual/statutory obligation of the company. When employer was making profits, they
weren’t sharing it with workers now the employer cannot pass on the loss to the workers alone.
Hence the doctrine of no work-no pay has no application in this case.
17 | P a g e

18 | P a g e

PRAYER
Wherefore it is prayed, in light of the issues raised, arguments advanced, and authorities cited,
that this Hon'ble Supreme Court may be graciously pleased to hold:
 That the various orders and directions issued by the Government calling upon the private
employers not to deduct the salaries of their employees and further advising them not to
terminate their employment during the lockdown period are mandatory in nature.
 That the employees are entitled to any increment in wages considering the devastating
impact on the financials owing to the covid-19 pandemic.
 To declare the strike commissioned by the employees from 10th May 2020 to 17th May
2020 as reasonable, justified and legal.
And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of
Justice, Fairness, Equity and Good Conscience.
For This Act of Kindness, the Respondent Shall Duty Bound Forever Pray.
Sd/-
(Counsel for the Petitioner)
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TC -

1ST LAWSCHOLE VIRTUAL MOOT COURT COMPETITION, 2020

IN THE HON’BLE SUPREME COURT OF GEORGOPOL

SLP NO. ................ OF 2020

PRINCETON PRIVATE LIMITED RESPONDENT

ON SUBMISSION TO THE REGISTRY OF THE COURT OF THE HON’BLE SUPREME

Memorial on Behalf of The Petitioner

[MEMORIAL FOR THE PETITIONER]

AIR All India Reporter

COW Code Of Wages

DMA Disaster Management Act

DPSP Directive Principles of State Policy

EDA Epidemic Diseases Act

IDA Industrial Disputes Act

MHA Ministry of Home Affairs

NEC National Emergency Committee

POW Payment Of Wages

SCC Supreme Court Cases

[MEMORIAL FOR THE PETITIONER]

[MEMORIAL FOR THE PETITIONER]

[MEMORIAL FOR THE PETITIONER]

1998 – Inception of Princeton Pvt.

20 April, 2020 – Employees decided 14 March, 2020 – SARS

29 March, 2020 – Ministry

[MEMORIAL FOR THE PETITIONER]

……………………………….. ISSUE I………………………………..

WHETHER THE NOTIFICATIONS ISSUED BY THE MHA ARE INTRA VIRES DM

……………………………….. ISSUE II ………………………………..

[MEMORIAL FOR THE PETITIONER]

[MEMORIAL FOR THE PETITIONER]

[MEMORIAL FOR THE PETITIONER]

I. THAT THE ORDERS ISSUED ARE INTRA VIRES

A. The supreme court has no authority to interfere

[MEMORIAL FOR THE PETITIONER]

B. The guidelines strengthens the touchstone of the constitution

i. The order does not violate article 19(1)(g)

[MEMORIAL FOR THE PETITIONER]

[MEMORIAL FOR THE PETITIONER]

(¶ 8.) While SC reiterated satisfaction of proportionality standards for any restrictions in

[MEMORIAL FOR THE PETITIONER]

ii. The order does not violate article 14

[MEMORIAL FOR THE PETITIONER]

a. Reasonable classification explained

[MEMORIAL FOR THE PETITIONER]

ii. The payment of wages act

iii. The industrial disputes act, 1947 cannot be invoked

[MEMORIAL FOR THE PETITIONER]

(¶17.) Conversely, if negotiations fail, will labour authorities be equipped to adjudicate on a

iv. The disaster management act can be invoked

[MEMORIAL FOR THE PETITIONER]

[MEMORIAL FOR THE PETITIONER]

[MEMORIAL FOR THE PETITIONER]

[MEMORIAL FOR THE PETITIONER]

[MEMORIAL FOR THE PETITIONER]

[MEMORIAL FOR THE PETITIONER]

D. The strike was legal and justified

i. Strike declared by workers was completely legal and justified

[MEMORIAL FOR THE PETITIONER]