IN THE SUBMISSION TO THE HON'BLE SUPREME COURT OF INDIA AT NEW DELHI

CIVIL APPEAL NO. ____/ 2017

IN THE MATTER OF

Z UNIVERSITY

(APPELLANT)

V.

ROHIT BHARDWAJ AND ANR

(RESPONDENT)

MEMORIAL ON BEHALF OF THE APPELLANT

 TABLE OF CONTENTS

LIST OF ABBREVIATOINS .................................................................................................................................3

INDEX OF AUTHORITIES ..................................................................................................................................4
STATUTES .........................................................................................................................................................4
CASE LAWS ......................................................................................................................................................4
BOOKS REFERRED .........................................................................................................................................4
LEXICONS ........................................................................................................................................................4
ONLINE SOURCES ..........................................................................................................................................5
STATEMENT OF JURISDICTION .......................................................................................................................6
STATEMENT OF FACTS ......................................................................................................................................7
STATEMENT OF ISSUES ....................................................................................................................................8
ISSUE 1: .............................................................................................................................................................8
ISSUE 2: .............................................................................................................................................................8
SUMMARY OF ARGUMENTS ............................................................................................................................9
ISSUE 1: .............................................................................................................................................................9
ISSUE 2: .............................................................................................................................................................9
PLEADINGS/ ARGUMENTS ADVANCED ........................................................................................................10
ISSUE 1: .............................................................................................................................................................10
ISSUE 2: .............................................................................................................................................................12
PRAYER FOR RELIEF .........................................................................................................................................13

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 LIST OF ABBREVIATOINS

& And

AIR All India Reporter

HC High Court

Hon'ble Honourable

Ors. Others

S/ Section

r/w read with

SC Supreme Court of India

SCC Supreme Court Cases

u/s under section

v. Versus

 Page 3 of 13

 INDEX OF AUTHORITIES

• The Constitution of India, 1950

STATUTES
• Industrial Disputes Act, 1947

CASE LAWS
• University of Delhi and Anr. v. Ram Nath AIR 1963 SC 1873

• Management of Safardar Jang Hospital, New Delhi v. Kuldip Singh AIR 1970 SC 1407
• State of UP v. jaibir singh AIR 2005 SC C1
• Coir board ernakulam, cochin v. indira devai AIR 1998 SC 2801
• Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. AIR 1978 SC 548

BOOKS REFERRED
• Labour and Industrial Laws 27th Edition by S N Misra
• Labour and Industrial Laws 2nd Edition by P K Padhi
• The Law of Industrial disputes by O.P Malhotra,
• Practical Guide to Industrial Disputes by H.L. Kumar,
• Piyali Ghosh and Shefali Nandan, Industrial Relations and Labour Laws

LEXICONS
• Black's Law Dictionary
• Oxford Dictionary of English
• Webster's New World Dictionary

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 ONLINE SOURCES

• http://www.manupatrafast.com/
• http://www.scconline.com/
• http://www.scconline.com/WebEdition.aspx
• https://indiankanoon.org/
• http://judis.nic.in/
• http://www.du.ac.in/du/

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 STATEMENT OF JURISDICTION

THE HON‟BLE SUPREME COURT OF INDIA EXERCISES JURISDICTION TO

HEAR AND ADJUDICATE OVER THE MATTER UNDER ARTICLE 133 OF THE
CONSTITUTION OF INDIA, 19501.

1. 133. Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters.
(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a
High Court in the territory of India if the High Court certifies under article 134
a. that the case involves a substantial question of law of general importance; and
b. that in the opinion of the High Court the said question needs to be decided by the Supreme Court.
(2) Notwithstanding anything in Article 132, any party appealing to the Supreme Court under clause (1) may urge as one
of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been
wrongly decided.
(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to
the Supreme Court from the judgment, decree or final order of one Judge of a High Court.
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 STATEMENT OF FACTS

1. Department X of Z University had administrative staff of 22 employees, consisting of two

section officers, one cashier, one storekeeper, six office assistants, seven typists, two peons, one
electrician, one waterman and one driver.
2. During the economy drive ordered by Z University directing all departments to reduce
their administrative staff by 10 percent, Department X terminated the services of one peon
Rohit Bhardwaj, who was on probation and the sole driver, Rahul Srivastava.
3. Their services were terminated by serving a notice on both the employees. The language of
the notice is as follows:
It is informed to you that your service is terminated w.e.f. 01-01-2015 on payment on one month
salary in advance in lieu of notice as per Z University Rule .
4. Rohit Bhardwaj and Rahul Srivastava, both challenged the termination order in the labour
tribunal as being arbitrary and illegal.
5. They pleaded that termination of the services of one of only two peons and the sole driver
was apparently arbitrary in view of the large staff and the fact that Department Y continued to
maintain a car.
6. Further they were not the junior most among all the cadres.
7. The main contention of Z University before the tribunal was that the application was not
maintainable before the labour tribunal. Z University was not an industry under section 2(j) of
Industrial Disputes Act 1947 and the provision of that Act did not apply to it. Internal
management of the Z University and its departments was not open to scrutiny by any
adjudicatory body unless the applicant proved existence of personal bias in relation to them.
8. The labour tribunal gave its finding in favour of Z University.
9. The employees challenged the said decision before the High Court. The High Court directed

Z University to reinstate the employees.

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 STATEMENT OF ISSUES

ISSUE 1:

Whether University an educational institution is an Industry?

ISSUE 2:

Whether the reinstatement order of the High Court should be set aside as the employees have been gainfully
employed elsewhere?

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‘
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 SUMMARY OF ARGUMENTS

ISSUE 1:
Whether University an educational institution is an Industry?

The counsel initiates its arguments by showing the court that Z University an educational institution is
not an industry. It is not an industry according to sec 2 (j) of Industrial dispute Act 1947 which defines an
industry. Industry as defined in Section 2 (j) of the Act does not include university as stated by supreme
court in state of u.p v.ramnath2. Therefore the term educational institution in not expressly included in the
definition of industry because it is a mission and a tool to enhance mental and emotional aspect of the
society . Moreover, Z University also not satisfy the Triple Test for an entity to be an industry which
was laid down in Bangalore Water Supply case3, as the dominant part of education institution is
imparting education and subordinate staff play minor role. Thus, termination of services of employees
is not an industrial dispute as per section 2A of the Industrial dispute Act 1947 and University is not
an industry.

ISSUE 2:
Whether the reinstatement order of the High Court should be set aside as the employees have

been gainfully employed elsewhere?

In this case there is no wrongful termination of services taken place because during the economic drive
ordered by Z university directing all departments to reduce their administrative staff by 10%. While
obeying this order X department terminated these two employees.
There claim is not maintainable because university is not coming under the definition of Industry .The
high court was erred in its decision of reinstatement of these two employees.

2. State of U.P v. Ramnath AIR 1963 SC 1873

3. Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. AIR 1978 SC 548

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‘
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 PLEADINGS/ ARGUMENTS ADVANCED

ISSUE 1:
Whether University an educational institution is an Industry?

1. The Counsel would like to bring to the notice of the Court the definition of Industry
Definition of Industry:
Section 2(j) of The Industrial Disputes Act, 1947: industr means any business, trade,
undertaking, manufacturer or calling of employers and includes any calling, service,
employment, handicraft, or industrial occupation or avocation of workmen.

Clause (j) shall stand substituted as below when sec. 2(c) of Act 46 of 1982 will come into force:
"industry" means any systematic activity carried on by co-operation between an employer and
his workmen (whether such workmen are employed by such employer directly or by or through
any agency, including a contractor) for the production, supply or distribution of goods or services
with a view to satisfy human wants or wishes (not being wants or wishes which are merely
spiritual or religious in nature), whether or not,--

(i) any capital has been invested for the purpose of carrying on such activity; or

(ii) such activity is carried on with a motive to make any gain or profit,

but does not include--

(3) educational, scientific, research or training institutions.

IN UNIVERSITY OF DELHI V. RAMNATH CASE:

The supreme court held that university is not an industry because :

• Main scheme of educational institution is imparting education.
• Teaching is not within the purview of industry.
• The subordinate staff play a minor or insignificant role in the process of imparting education.
• Permitting the insignificant role of the subordinate staff to lend the colour of industry is
unreasonable.

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 Re examination of Bangalore water supply case:

There can be no doubt that the law laid down in the Bangalore water supply case requires
reconsideration in the light of economic liberalization and various changes taking place in the
society. The court also has been feeling that the very liberal interpretation given to the provisions
of labour laws has not helped the cause of industrial peace nor the cause of productivity. In coir
board case4 the apex court said that it is necessary to re examine the Bangalore water supply case.

STATE OF U.P V. JAIBIR SINGH 5

A five judge bench of the supreme court observed that the interpretation given by in Bangalore
water supply case is over expansive and one sided i.e only worker oriented . It requires
reconsideration by a larger bench. The decision in Bangalore water supply case was not a
unanimous decision. Majority opinion expressed the view that their interpretation was only
tentative and temporary till the legislature stepped in and remove vagueness and confusion. In
such circumstances it is difficult to ascertain whether the said decision can be an authoritative
precedent . worker oriented approach in construing the definition of industry ,unmindful of the
interest of the employer and the public who are the ultimate beneficiaries, is a one sided approach
and not in accordance with the provisions of the act. The main aim of the statue is to regulate and
harmonise relationship between employers and employees for maintaining industrial peace and
social harmony.
Overemphasis on the rights of the workers and undue curtailment of the rights of the employer to
organize their business has given rise to a large number of industrial and labour claims resulting in
burdensome and defeat the purpose of the act.
After this judgement justice T.S Thakur ,in a two paragraph order said serious and wide ranging
implication of the issue fall for determination in the instance reference order and it should be heard by
nine judge bench.

4Coir board ernakulam, cochin v. indira devai AIR 1998 SC 2801

5State of U.P v jaibir singh AIR 2005 5SCC1

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 In the view of the aforesaid, the status of an educational institution as not an Industry is beyond

any doubts and Ho ble Court should approved the appeal.

ISSUE 2:

Whether the reinstatement order of the High Court should be set aside as the employees have

been gainfully employed elsewhere?

In this case there is no wrongful termination of services taken place because during the economic drive
ordered by Z university directing all departments to reduce their administrative staff by 10%. While
obeying this order X department terminated these two employees.
There claim is not maintainable because university is not coming under the definition of Industry .The
apex court in safdarjung hospital case 6 held that hospital is not an industry and held the termination of
employees appropriate . The high court was erred in its decision of reinstatement of these two employees.
The question of compensation under section 25f of industrial dispute act7 is irrelevant as university is not
come under the definition of an industry. While determining whether university is come under the
definition of industry the labour tribunal took the right view and gave its finding in favour of Z university.

6Management of safdarjung hospital v. kuldip singh AIR 1970 SC 1407

7Section
25F of Industrial Disputes Act, 1947: Conditions precedent to retrenchment of workmen.-
No workman employed in any industry who has been in continuous service for not less than one year under an
employer shall be retrenched by that employer until--
a. the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of
notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice:
b. the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days'
average pay [for every completed year of continuous service] or any part thereof in excess of six months; and
c. notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by
the appropriate Government by notification in the Official Gazette].

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 PRAYER FOR RELIEF

Wherefore in the light of the facts stated, issues raised, authorities cited, and arguments advanced, it

is most humbly prayed before this Court that it may be pleased to:

(i) To set aside the order of the Ho ble High Court.

(ii) Pass any other order that it seems fit in the interest of Justice, Equity and Good

Conscience And for this, the appellant as in duty bound, shall humbly pray.

Place: New Delhi

Respectfully submitted by

(Counsel for the Respondent)

Date:

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