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Team Code: B

ANAND LAW COLLEGE AND ANAND COLLEGE OF LEGAL STUDIES

INTRA MOOT COURT COMPETITION 2021

Before

THE HON’BLE SUPREME COURT OF ANDUIN

SPECIAL LEAVE PETITION No. Of 2004

ORIGINAL JURISDICTION

UNDER ARTICLE 136 r/w 32 OF THE CONSTITUTION OF ANDUIN, 1950

MR. LOUISE ANTHONY FERNANDES.............................PETITIONER

Versus

PRESIDING OFFICER, LABOUR COURT……………………RESPONDENT 1

BEJOINE INDUSTRIES…………………………….……………RESPONDENT 2

IN THE MATTER UNDER

ON SUBMISSION BEFORE THE REGISTRY OF THE COURT ON 6-01-2004

SUBMISSION ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

TABLE OF CONTENTS........................................................................................2
INDEX OF AUTHORITIES...................................................................................3
STATEMENT OF JURISDICTION......................................................................9
STATEMENT OF FACTS....................................................................................12
STATEMENT OF ISSUES...................................................................................13
SUMMARY OF PLEADINGS.............................................................................14
ARGUMENTS ADVANCED................................................................................16

ISSUE1. WHETHER THE SPECIAL LEAVE PETITION IS

MAINTAINABLE OR NOT?........................................................................................16
1.1 The petitioner has locus standi to approach the honorable supreme court…………………
16
1.2 The matter involves substantial question of law and gross injustice has been done……..17
1.3 Substantial question of law is involved…………………………………………………….17
1.4 Finding of facts may give rise to substantial question of law………………………………
17
ISSUE 2. WHETHER MR. LOUIS ANTHONY IS LIABLE FOR
MISCONDUCT AS ALLEGED BY THE MANAGEMENT?............................18
2.1 Innocent absenteeism……………………....………………………………………..18
ISSUE 3. WHETHER THE ORDER OF TERMINATION IS UNJUST,
UNFAIR AND AGAINST THE LAW OF NATURAL JUSTICE?....................19
3.1 Order made without complying with the principle of Audi Alteram Partem……………...20

3.2 Order of termination violates article 14 and 21 of the constitution of Anduin……………21

3.3 The order of termination fall under retrenchment…………………………………………24

ISSUE 4. WHETHER THE ORDER PASSED BY LABOUR COURT WAS JUST
AND PROPER?.................................................................................................................25
4.1 The finding of labour court is unjust, unfair………………………………………………25
4.2 Direction of termination is inappropriate…………………………………………………26
4.3 Mr. Louis is entitled for compensation with back wages Compensation…………………27

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INDEX OF AUTHORITIES

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29. 29.RBI - Reserve Bank of India

30. APSRTC - Andhra Pradesh State Road Transport Corporation
31. CA - Civil Appeal
32. Doc – Document
33. & - And
34. Rs. - Rupees
35. Ind Cas- Indian Cases
36. s- Section
37. Art- Article
38. SCR- Supreme Court Report
39. WLR - Weekly Law Reports
40. LJ - Law Journal
41. CS - Charge Sheet
42. WP- Writ Petition
43. COI - Constitution of India
44. TLR - Times Law Report

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AUTHORITIES CITED

SR.N CASE LAWS

O
1 Sadhanantham v. Arunachalam and Anr.
2 Union Carbide Corporation and Ors. v. Union of India and Ors.
3 Nihal Singh & Ors v. State of Punjab,
4 Pritam Singh v. State
5 Durga Shankar Mehta v. ThakurRaghuraj Singh and Ors.
6 State of Karnataka v. State of Tamil Nadu and Ors.
7 Barsay v Bombay
8 Banwari Lal v. Trilok Chand
9 Digvijay Singh v.Pratap Kumari
10 Chettiar v. Chettia
11 Dale & Carrington Invt. Ltd. v. P.K. Prathapan
12 Sir Chunilal Mehta and Sons, Ltd. v. Century Spinning and Manufacturing Co.
Ltd.,
13 Sumati Dayal v. CIT
14 Kathi Ranning Rawat v. The State of Saurashtra
15 Pritam Singh v. The State
16 Sripur Paper Mills v. Comm. of Wealth Tax
17 Om Prakash Sood v. Union of India
18 Krushnakant B.Parmar v. Union of India and another
19 Mohinder Singh Gill & Anr. v. The Chief Election Commissioner & Ors.
20 State of Orissa v. Dr. (Miss) Binapani Dei & Ors.,
21 A.K. Kriapak and Ors. v. Union of India & Ors.
22 J.N. Sinha v. Union of India & Anr.
23 State of West Bengal v. Anwar Ali Sarkar
24 Maneka Gandhi v. Union of India
25 Delhi Transport Corpn. v. D. T. C. Mazdoor Congress and Ors
26 D. T. C. v. D. T.C. Mazdoor Congress and Ors.
27 D.K. Yadav v. J.M.A. Industries Ltd
28 Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v.
Presiding Officer, Labour Court, Chandigarh and Ors.,
29 Workmen of FT &R Co. Vs The Management,
30 Rustom and Hornsby Ltd. Vs T B Kadam
31 State Bank of India vs. R K Jain
32 GMD and Corpn.Vs P.H Brohmbhatt
33 Saxby and Farmer India Ltd. Vs Third Industrial Tribunal
34 B. Viswanatha Rao vs management of Canara bank and others

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35 Hindustan Tin Works (P) Ltd v Employees

36 Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya

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BOOKS REFERRED

1. Labour & lndustrial Laws S. N. Misra 28th edition Central Law

Publications

2. Labour & Industrial Laws Dr. V. G. Goswami 8th edition Central Law
Agency

3. Labour & Industrial Laws S. N. Misra 10th edition Allahabad Law

Agency

4. Banking Laws R. N. Chaudhary 3rd edition Central Law Publications

5. Principles of the law of evidence Dr. Avtar Singh 20th edition Central
Law Publications

6. Constitutional Law of India Dr. J. N. Pandey 56th edition Central Law

Agency

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WEBSITES

1. https://indiankanoon.org/
2. https://www.scconline.com/
3. www.suprecourtofindi.com
4. www.casemine.com
5. https://www.sci.gov.in/
6. https://main.sci.gov.in/judgments
7. https://www.livelaw.in/
8. https://www.thehindu.com/
9. https://www.scribd.com/docs

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STATEMENT OF JURISDICTION

THE PETITIONER HAS FILED THIS PETITION BEFORE THE HON’BLE

SUPREME COURT OF ANDUIN, UNDER ART. 136 r/w ART. 32 OF THE
CONSTITUTION OF ANDUIN THEREFORE, THIS HON’BLE COURT NEEDS NOT
TO ENTERTAIN ITS JURISDICTION IN THIS SPECIAL PETITION.
THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS
AND ARGUMENTS.

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STATEMENT OF FACTS

Anduin is a large, economically prosperous and a multi-ethnic country. Its citizens enjoy a mixed
combination of high-class, middle-class and poor-class standard of living in terms of access to education,
health, livelihood and civil rights. It follows a three-tier system of Judiciary – Supreme Court, High
Courts and District Courts.
Bejoine is a private industrial was engaged in manufacturing industrial pipes and fittings. As any
other industry, Bejoine Industries had employees with a total strength of 1000. Also, there was a
recognized Trade Union operating in the company. One of the employees of that company named Louise
Anthony Fernandes was a worker on the rolls of the concern since the year 2000. In 2003, Louise was
absent from work due to unavoidable circumstances for a period of eight days from December 3, 2003
without leave or prior information permission from the management. In consequence of reasonable
continued absence for more than eight days, it was deemed that the employee has left the service of the
company of his own account and lost his lien on his appointment. The company took shield under Clause
13 (2)(iv) of the Certified Standing Order Accordingly, the company sent a letter dated December 12,
2003 which was received by the employee on December 19, 2003 intimating the termination. Without
any kind of disclipnary inquiry
DISPUTE AND THE SUITES

Against the termination, the employee took up the issue in the Labour Court. He takes the defence
that despite his reporting to duty on December 3, 2003 and on all subsequent days and readiness to join
duty he was prevented from reporting to duty, nor he was permitted to sign the attendance register. He
pleaded that he was not permitted to join duty without assigning any reasons. Without considering any
kind of evidences or without giving employee chance to put his side properly the , the Labour Court
upheld the termination of the employee as legal and valid. The award was given by the Labour Court on
2nd January,2004.
Against the award of the Labour Court, the employee filed a Special Leave Petition on 6 th January
2004 in the Supreme Court on the ground that the decision of the Labour Court was violative of Article
14 of the Constitution of India and file the present special leave petition by approaching the supreme court.

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STATEMENT OF ISSUES
1.WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE OR
NOT?
2.WHETHER MR. LOUIS ANTHONY IS LIABLE FOR MISCONDUCT AS
ALLEGED BY THE MANAGEMENT?
3.WHETHER THE ORDER OF TERMINATION IS UNJUST, UNFAIR AND
AGAINST THE LAW OF NATURAL JUSTICE?
4.WHETHER THE ORDER PASSED BY LABOUR COURT WAS JUST AND
PROPER?

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SUMMARY OF ARGUMENTS
ISSUE-1: WHETHER THE PRESENT PETITION IS MAINTAINABLE OR NOT?
It is humbly submitted that the Special Leave Petition against the judgment of Hon’ble High Court is
maintainable under Article 136 of the Constitution of India. Article 136 empowers the Supreme Court to
grant in discretion Special leave to Appeal from any judgement, decree, determination, sentence or order
in any cause or matter passed or made by any court or tribunal in the territory of India 1. It is humbly
submitted that powers under Article 136 can be exercised against any kind of judgement or order which
is causing injustice to any party, and to serve the need, the power under Article 136 is unfettered 2. This
SLP is maintainable as, firstly the petitioner has locus standi to approach the Honorable SC [A],
secondly the matter involves question of general public importance involving a substantial question of
law [B]
ISSUE-2: WHETHER MR. LOUIS ANTHONY IS LIABLE FOR MISCONDUCT AS ALLEGED
BY THE MANAGEMENT?
The proper procedure established for inquiry must be followed to arrive at decision which is to be in
good faith and in accordance with the natural justice. But here the inquiry is vitiated as the rule of natural
justice of workman is violated on the ground of non-examination of witnesses and non-appointment of
presenting officer for the enquiry. Any order made in violation of principles of natural justice is void
ab-initio and is liable to be annulled and cancelled.
ISSUE-3. WHETHER THE ORDER OF TERMINATION IS UNJUST, UNFAIR AND AGAINST
THE LAW OF NATURAL JUSTICE?4
It is a fundamental rule of law that no decision must be taken which will affect the right of any person
without first being informed of the case and be given him an opportunity of putting forward his case. In
the aforesaid matter the principle of Audi Alteram Partem which is the fundamental principles of natural
justice was not complied by the management as the workman was not given enough opportunity to put
forward his case. An order involving civil consequences must be made consistently with the rules of
natural justice.
ISSUE 4. WHETHER THE ORDER PASSED BY LABOUR COURT WAS JUST AND
PROPER?
In the present case labour court neither founded the considered that no domestic enquiry held and nor
considered that the punishment imposed by the employer without affording an opportunity and
dismissed the workman is highly disproportionate. Thus, directed the employer to terminate the
workman without any concrete finding. that even though the Labour court has found that the domestic

1
Art. 136, Constitution of India, 1950
2
(Sadhanantham v. Arunachalam and Anr. (1980) 3 SCC 141; Union Carbide Corporation and Ors. v. Union of India
and Ors. (1991) 4 SCC 584

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inquiry was not conducted and an opportunity was not afforded to the workman although erroneously
hold that the dismissal of workman by the employer is valid. Then after the Labour court has power to
reappraise the evidence presented and examine the finding recorded during domestic inquiry. Thus,
Labour Court has a power to alter the punishment imposed on the workman but has not considered the
same

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ARGUMENTS ADVANCED

ISSUE-1: WHETHER THE PRESENT PETITION IS MAINTAINABLE OR

NOT?
1. It is humbly submitted that the Special Leave Petition against the judgment of Hon’ble High
Court is maintainable under Article 136 of the Constitution of India. Article 136 empowers
the Supreme Court to grant in discretion Special leave to Appeal from any judgement,
decree, determination, sentence or order in any cause or matter passed or made by any court
or tribunal in the territory of India3. It is humbly submitted that powers under Article 136 can
be exercised against any kind of judgement or order which is causing injustice to any party,
and to serve the need, the power under Article 136 is unfettered 4. This SLP is maintainable
as, firstly the petitioner has locus standi to approach the Honorable SC [A], secondly the
matter involves question of general public importance involving a substantial question of law
[B]
1.1 THE PETITIONER HAS LOCUS STANDI TO APPROACH THE
HON’BLE SUPREME COURT.
2. It is humbly submitted before this Hon’ble SC that the appellant has locus standi to approach
the Hon’ble SC in the present case. Article 136 of the Constitution is couched in the widest
phraseology5 .This Court's jurisdiction is limited only by its discretion6.
3. It is pertinent to note that the scope of Article 133 providing appeals to the SC in civil
matters is limited whereas Article 136 is very broad-based & confers discretion on the court
to hear “in any cause or matter”7. The plenitude of power under Article 136 of the
Constitution has been authoritatively stated by the Constitution Bench in Durga Shankar
Mehta v. ThakurRaghuraj Singh and Ors.8 and the exercise of the said power by the Court
cannot be curtailed by the original constitutional provision or by any statutory
provision.9Therefore, civil appeals may be brought to the SC under article 136 when these
are not covered by Article 133.10

3
Art. 136, Constitution of India, 1950
4
Sadhanantham v. Arunachalam and Anr. (1980) 3 SCC 141; Union Carbide Corporation and Ors. v. Union of India and
Ors. (1991) 4 SCC 584
5
Nihal Singh & Ors v. State of Punjab, AIR 1965 SC 26
6
Ibid
7
Pritam Singh v. State, AIR 1950 SC 169
8
AIR 1954 SC 520
9
State of Karnataka v. State of Tamil Nadu and Ors., Civil Appeal No. 2453 of 2007 decided on December 9, 2016.
10
(Barsay v. Bombay AIR 1961 SC 1762; Banwari Lal v. Trilok Chand, AIR 1980 SC 419; Digvijay Singh v.Pratap
Kumari, AIR 1970 SC 137; Chettiar v. Chettiar, AIR 1968 SC 915)

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1.2 THE MATTER INVOLVES SUBSTANTIAL QUESTION OF LAW

AND GROSS INJUSTICE HAS BEEN DONE.
4. It is humbly submitted by the petitioner before this Hon’ble Court that, the matter involves
substantial question of law as it concerns the violation of fundamental right of the workman
and gross injustice has already been resulted due to noncompliance with the principle of
natural justice.
1.3 SUBSTANTIAL QUESTION OF LAW IS INVOLVED.
5. It is humbly submitted that where findings are entered without considering relevant materials
and without following proper legal procedure, interference of SC is called for.11 In the instant
case, the Labour Court has erred in deciding a very substantial question of law, related to
principle of natural justice i.e Audi Alteram Partam which is not afforded to workman.
6. Whether a matter involves substantial question of law, depends on whether it affect the rights
of the parties, or it has already been decided by the highest Court. 12 It will, therefore, depend
on the facts and circumstance of each case whether a substantial question of law is involved
in the case.13
7. It is submitted that, the present case involves a matter principle of natural justice as it
directly and substantially affects the rights of the parties as the order is erroneous and
prejudicial to the interest of workman and also the labour court had erred in dismissing the
matter that Audi alteram Partem is not a fundamental rule of Natural justice.
8. The judgment of Labour court is bad in the eyes of law as it did not recognize the right to
hear which is an intrinsic part of principle of natural justice. Grave miscarriage of justice has
occurred because of this serious and flagrant violation of rule of natural justice has been
committed by the Labour Court for which interference of the SC is required.
1.4 FINDING OF FACTS MAY GIVE RISE TO SUBSTANTIAL
QUESTION OF LAW.
9. The SC is not precluded from going into the question of facts under Art. 136, if it considers
it necessary to do so.14, See also, Achyut Adhicary v. West Bengal, AIR 1963 SC 1039).Art.
136 uses the words ‘in any cause or matter’. This gives widest power to this court to deal

11
Dale & Carrington Invt. Ltd. v. P.K. Prathapan, (2005) 1 SCC 212
12
Sir Chunilal Mehta and Sons, Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314
13
Sumati Dayal v. CIT, (1995) 214 ITR 801
14
Kathi Ranning Rawat v. The State of Saurashtra, AIR 1952 SC 123

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with any cause or matter.15

10. It is plain that when the SC reaches the conclusion that a person has been dealt with
arbitrarily or that a court or tribunal has not given a fair deal to a litigant, then no technical
hurdles of any kind like the finality of finding of facts, or otherwise can stand in the way of
the exercise of this power.16
11. In the instant case, the Labour Court, in haste, reached the conclusion that right of Audi
Alteram Partem that is to deny opportunity to put forth his case. Thus, on the above grounds,
it is humbly submitted that the petition is maintainable before the Hon’ble SC of Andiun.
ISSUE-2: WHETHER THE MISCONDUCT IS DONE BY MR. LOUIS AS
ALLEGED BY COMPANY?
12. The proper procedure established for inquiry must be followed to arrive at decision which is
to be in good faith and in accordance with the natural justice. But here the inquiry is vitiated
as the rule of natural justice of workman is violated on the ground of non-examination of
witnesses and non-appointment of presenting officer for the enquiry. Any order made in
violation of principles of natural justice is void ab-initio and is liable to be annulled and
cancelled.
2.1THE ALLEGATIONS MR. LOUISE IS JUST AN INNOCENT
ABSENTEEISM.
13. The Supreme Court in Krushnakant B.Parmar v. Union of India and another 17 whereunder
Hon'ble the Supreme Court has clearly held that the charge of unauthorized absence from
duty cannot be decided without deciding the question as to whether the absence is willful or
is because of compelling circumstances.
14. In the said matter the workman having such circumstance which warrants an immediate
action from him. But the same was not look by the management by following an enquiry and
merely concluded that a misconduct is established.
15. It has been further held that in a departmental proceeding, if allegation of unauthorized
absence from duty is made, the disciplinary authority is required to prove that the absence is
wilful and in the absence of any such finding, the absence will not amount to misconduct.
Absence from duty without any application or prior permission may amount to unauthorized
absence but it does not always be wilful and, therefore, does not amount to grave

15
Pritam Singh v. The State, AIR 1950 SC 169
16
Sripur Paper Mills v. Comm. of Wealth Tax, AIR 1970 SC 1520; See also, Om Prakash Sood v. Union of India, Civil
Appeal No. 9169 of 1996
17
(2012) 3 SCC 178)

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misconduct. In the present case neither management conducted an enquiry nor they try to
find out genuines of the workman.
16. The counsel submits the circumstances show that it was not his intention to wilfully flout the
order, but the circumstances forced him to do so. In that view he further conceded that it was
open to the authorities to visit reason behind him and try to inquire the same by complying
with required standard, but the management utterly failed to comply with their own set
standard.
17. The counsel submits that when an employee gets absent to work without giving any
intimation in advance may be on basis of genuine like having sudden health issues, any
family issues or any family obligations which cannot be skipped. The counsel submits that
before taking any decision on unauthorized absenteeism by employee, employer must know
the facts or reasons which insisted employee get absent to work. The workman is terminated
from job for the reason of unauthorized absenteeism without knowing any facts or reasons
behind the same and therefore treated as wrongful termination.
18. Further states that termination of workman has taken place without giving any chance to him
explain or give reasons for his absent to work is against the Principles of Natural Justice.
According to principles of natural justice, one should be given opportunity to explain before
taking any decision against him. There is a famous principle of natural justice is "Audi
alteram partem"- Hear the other party or the rule of fair hearing or the rule that no one should
be condemned unheard. According to this principle, before taking any decision against any
person, one should have fair hearing and give opportunity to explain in his words and
subsequently can come to decision. The management fail utterly on this point, thereby
violates fundamental principles of rule of natural justice.
19. The management neither try to inquire the genuiness of workman nor afforded him with an
opportunity to put forth his case. But when it becomes possible for workman to join the duty
and went to join the duty with full devotion, he was not permitted to rejoin duty neither to
sign the registers. The management intentionally showed very unjustified behavior to
workman in order to hide their own fault of not conducting an enquiry.
ISSUE 3: WHETHER THE ORDER OF TERMINATION IS UNJUST,
UNFAIR AND AGAINST THE LAW OF NATURAL JUSTICE?
20. It is a fundamental rule of law that no decision must be taken which will affect the right of
any person without first being informed of the case and be given him an opportunity of
putting forward his case. In the aforesaid matter the principle of Audi Alteram Partem which

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is the fundamental principles of natural justice was not complied by the management as the
workman was not given enough opportunity to put forward his case. An order involving civil
consequences must be made consistently with the rules of natural justice.
3.1 ORDER MADE WITHOUT COMPLYING WITH THE PRINCIPLE OF AUDI
ALTERAM PARTEM.
21. It is a fundamental rule of law that no decision must be taken which will affect the right of
any person without first being informed of the case and be given him an opportunity of
putting forward his case.
22. In the aforesaid matter the principle of Audi Alteram Partem which is the fundamental
principles of natural justice was not complied by the management as the workman was not
given enough opportunity to put forward his case. An order involving civil consequences
must be made consistently with the rules of natural justice. In Mohinder Singh Gill & Anr. v.
The Chief Election Commissioner & Ors. 18 the Constitution Bench held that 'civil
consequence' covers infraction of not merely property or personal right but of civil liberties,
material deprivations and non- pecuniary damages. In its comprehensive connotation
everything that affects a citizen in his civil life inflicts a civil consequence.
23. The Counsel submits that the order passed by the management without hearing the other side
resulted in both mental and civil consequence. And lead not only the workman but his family
to face serious mental trauma.
24. In State of Orissa v. Dr. (Miss) Binapani Dei & Ors., 19 this court held that even an
administrative order which involves civil consequences must be made consistently with the
rules of natural justice. The person concerned must be informed of the case, the evidence in
support thereof supplied and must be given a fair opportunity to meet the case before an
adverse decision is taken. Since no such opportunity was given it was held that order was in
violation of principles of natural justice.
25. In A.K. Kriapak and Ors. v. Union of India & Ors., 20 a Constitution bench of this court held
that the distinction between quasi-judicial and administrative order has gradually become
thin. Now it is totally eclipsed and obliterated. The aim of the rule of the natural justice is to
secure justice or to put it negatively to prevent miscarriage of justice. These rules operate in
the area not covered by law validly made or expressly excluded as held in Col. J.N. Sinha v.
Union of India & Anr.21
18
( [1978] 2 SCR)
19
( 1967 AIR 1269)
20
([1969] 2 SCC 262)
21
([1971] 1 SCR 791.)

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26. Rule of natural justice being the part of divine law need to be looked even in area which are
not covered by law. It is settled law that certified standing orders have statutory force
which do not expressly exclude the application of the principles of natural justice must
follow the same. With respects to the said matter principles of natural justice would apply as
the employer does not justify its exclusion on given special and exceptional exigencies.
27. The cardinal point that has to be borne in mind, in every case, is whether the person
concerned should have a reasonable opportunity of presenting his case and the authority
should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is
to act fairly, namely' the procedure adopted must be just, fair and reasonable in the particular
circumstances of the case. The counsel submits facts clearly shows that the management
being supreme authority has not given opportunity to the workman and act arbitrarily
effecting right of concerned workman.
3.2 ORDER OF TERMINATION VIOLATES ARTICLE 14 AND 21 OF
CONSTITUTION OF ANDUIN.
28. In State of West Bengal v. Anwar Ali Sarkar 22, per majority, a seven Judge bench held that
the rule of procedure laid down by law comes as much within the purview of Art. 14 of the
Constitution as any rule of substantive law.
29. In Maneka Gandhi v. Union of India.23, another bench of seven judges held that the
substantive and procedural laws and action taken under them will have to pass the test under
Art, 14. The test of reason and justice cannot be abstract. They cannot be divorced from the
needs of the nation. The tests have to be pragmatic otherwise they would cease to be
reasonable.
30. The procedure prescribed must be just, fair and reasonable even though there is no specific
provision in a statute or rules made thereunder for showing cause against action proposed to
be taken against an individual, which affects the right of that individual. The duty to give
reasonable opportunity to be heard will be implied from the nature of the function to be
performed by the authority which has the power to take punitive or damaging action. Even
executive authorities which take administrative action involving any deprivation of or
restriction on inherent fundamental rights of citizens, must take care to see that justice is not
only done but manifestly appears to be done. They have a duty to proceed in a way which is
free from even the appearance of arbitrariness, unreasonableness or unfairness.
31. The counsel contends that action of management which is punitive in nature and which
22
([1952] SCR 289)
23
( [1978] SCR (2) 621)

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results in civil consequence must be duly discharged while complying with the procedure
prescribed n order to avoid the unfairness in the decision.
32. The law must therefore be now taken to be well-settled that procedure prescribed for
depriving a person of livelihood must meet the challenge of Art. 14. 24 and such law would be
liable to be tested on the anvil of Art. 14 and the procedure prescribed by a statute or
statutory rule or rules or orders effecting the civil rights or result in civil consequences would
have to answerthe requirement of Art. 14. So it must be right, just and fair and not arbitrary,
fanciful or oppressive0.
33. Therefore, can be no distinction between a quasi-judicial function and an administrative
function for the purpose of principles of natural justice. The aim of both administrative.
inquiry as well as the quasi-.judicial enquiry is to arrive at a just decision and if a rule of
natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of
justice, it is difficult to see why it should be applicable only to quasi-judicial enquiry and not
to administrative enquiry. It must logically apply to both. Therefore, fair play in action
requires that the procedure adopted must be just, fair and reasonable.
34. The manner used by management to exercise the power and its impact on the rights of the
workman affected is not in conformity with the principles of natural justice.
35. In Delhi Transport Corpn. v. D. T. C. Mazdoor Congress and Ors, 25 this court held that right
to public employment and its concomitant right to livelihood received protective umbrella
under the can copy of Arts. 14 and 21 etc. All matters relating to employment includes the
right to continue in service till the employee reaches superannuation or until his service is
duly terminated in accordance with just. Fair and reasonable procedure prescribed under the
provisions of the constitution and the rules made under the provisions of the constitution and
the rules made under proviso to Art. 309 of the Constitution or the statutory provisions or the
rules, regulations or instructions having statutory flavour. They must be conformable to the
rights guaranteed in Part III and IV of the Constitution.
36. Art. 21 guarantees right to life which includes right to livelihood, the deprivation thereof
must be in accordance with just and fair procedure prescribed by law conformable to Arts.
14 and 21 so as to be just, fair and reasonable and not fanciful, oppressive or at vagary. The
principles of natural justice is an integral part of the Guarantee of equality assured by Art.
14. Any law made or action taken by an employer must be fair, just and reasonable.
37. The counsel here submits that power to terminate the service of a workman in accordance
24
( Constitutiom of India,1950)
25
([1991] Suppl. 1 SCC 600)

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with just, fair and reasonable procedure is an essential inbuilt of' natural justice. Arts. 14
strikes at arbitrary action. It is not the form of the action but the substance of the order that is
to be looked into. It is open to the Hobble court to lift the veil and gauge the effect of the
impugned action to find whether it is the foundation to impose punishment or is only a
motive.
38. It is thus well settled law that right to life enshrined under Art. 21 of the Constitution would
include right to livelihood. The order passed by management of the termination of service of
an workman visits with civil consequences of jeopardizing not only his livelihood but also
career and livelihood ofdependents.
39. Therefore, before taking said action putting an end to the tenure of an workman fair play
requires that a reasonable opportunity to put forth his case is given and domestic enquiry
conducted to comply with the principles of natural justice but same was ignored by the
management.
40. In D. T. C. v. D. T.C. Mazdoor Congress and Ors.26 the constitution bench, per majority, held
that termination of the service of a workman giving one month's notice or pay in lieu thereof
without enquiry offended Art. 14. The order terminating the service of the employees was set
aside.
41. In this case admittedly neither opportunity was given to the workman nor enquiry was held.
The applicant’s plea put forth at the earliest was that despite his reporting to duty on
December 3, 2003 and on all subsequent days and readiness to join duty he was prevented to
report to duty, nor he be permitted to sign the attendance register. Instead of giving
opportunity the management blame the workman for the impugned action. Even though the
Labour Court did not record any conclusive finding in this behalf.
42. It is submitted that the Labour court had erroneously concluded that management had power
under Cl. 13 of the certified Standing Orders to terminate with the service of the appellant.
Therefore, we urged the principles of natural justice must be read into the standing order No.
13 (2) (iv).25(moot problem) Otherwise, it would become arbitrary. Unjust and unfair
violating Arts. 14.
43. The Honble Supreme court Court in DK Yadav's case D.K. Yadav v. J.M.A. Industries
Ltd27 strictly speaking did not answer the same in a categorical fashion though undoubtedly
read into Certified Standing Order compliance with the doctrine of natural justice as also the
principles underlying in Article 14 of the Constitution. The observations in Yadav (supra)

26
( 1990 SCR supl.(1) 142)
27
D.K. Yadav v. J.M.A. Industries Ltd (1993 (3) SCC 259)

MEMORIAL ON BEHALF OF PETITIONER

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seems to be rather apposite on this score. As such the same is set out hereinbelow:
44. The counsel submits that the management utterly failed to comply with rule of natural justice
which warrants that no party should be unheard which is and thereby violates the
fundamental rule of moral law and also violates the right of equality as enriched in the
constitution of Andiun.
3.4TERMINATION OF MR. LOUISE FALL UNDER
RETRENCHMENT.
45. Section 2(oo)28 of the Act defines 'Retrenchment' means the
termination by the employer of the service of a workman for any
reason whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include-(a) voluntary
retirement of the workman, or(b) retirement of the workman on
reaching the age of superannuation of the contract of
employment between the employer and the workman concerned
contains a stipulation in that behalf, or(c) termination of the
service of a workman on the ground of continued ill health."
46. Section 25F prescribes mandatory procedure to be followed before the retrenchment
becomes valid and legal and violation there of visits with invalidation of the action with
consequential results.
47. In Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding
Officer, Labour Court, Chandigarh and Ors.,29 the Constitution Bench considered the scope
of the word 'retrenchment' defined by s.2(oo) and held in para 71 at page 716 that "analysing
the definition of retrenchment in Section 2(oo) we find that termination by the employer of
the service of a workman would not otherwise have covered the cases excluded in Clauses
(a) and (b) namely, voluntary retirement and retirement on reaching the stipulated age of
retirement or on the grounds of continued ill health. There would be no violational element
of the employer. Their express exclusion implies that those would otherwise have been
included". In para 77 at page 719 it was further held that "right of the employer and the
contract of employment has been effected by introducing section 2(oo).
48. The counsel submits before the honble court that therefore management to terminate the
service of an employee under the certified standing Orders and under the contracts of
employment was negatived holding that the right of the management has been effected by

28
(Industrial Dispute Act,1947)
29
[1990] 3 SCC 632

MEMORIAL ON BEHALF OF PETITIONER

 25

introduction of s. 2(oo) and s. 25F of the Act.

49. In Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding
Officer, Labour Court, Chandigarh and Ors.,30 this court concluded that the definition in
s.2(oo) of the Act of retrenchment means "the termination by the employer of the service of
a workman for any reason whatsoever except those expressly excluded in the section".
50. Therefore, the counsel for appellant submits that the definition 'retrenchment' in S.2(oo) is a
comprehensive one intended to cover any action of the management to put an end to the
employment of an employee for any reason whatsoever. Moreover, submits that the action
taken by management under in the present matter falls within the ambit of the retrenchment
ISSUE 4: WHETHER THE ORDER PASSED BY LABOUR COURT WAS
JUST AND PROPER?
51. In the present case labour court neither founded the considered that no domestic enquiry held
and nor considered that the punishment imposed by the employer without affording an
opportunity and dismissed the workman is highly disproportionate. Thus, directed the
employer to terminate the workman without any concrete finding. that even though the
Labour court has found that the domestic inquiry was not conducted and an opportunity was
not afforded to the workman although erroneously hold that the dismissal of workman by the
employer is valid. Then after the Labour court has power to reappraise the evidence
presented and examine the finding recorded during domestic inquiry. Thus, Labour Court
has a power to alter the punishment imposed on the workman but has not considered the
same.
4.1THE FINDING OF LABOUR COURT IS UNJUST, UNFAIR.
52. It is held in Workmen of FT &R Co. Vs The Management, 31 Even where the dismissal of a
workman by an employer on ground of misconduct is preceded by proper and valid domestic
inquiry (section 11 A)32 now empowers the Labour Court or Tribunal reappraise the evidence
and examine the correctness of the finding arrived at the domestic inquiry.
53. The counsel here contends that even though the Labour court has found that the domestic
inquiry was not conducted and an opportunity was not afforded to the workman although
erroneously hold that the dismissal of workman by the employer is valid. Then after the
Labour court has power to reappraise the evidence presented and examine the finding
recorded during domestic inquiry. Thus Labour Court has a power to alter the punishment

30
[1990] 3 SCC 632 in paragraph 82 at page 722
31
AIR 1972 SC 1227
32
Industrial Dispute Act, 1974

MEMORIAL ON BEHALF OF PETITIONER

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imposed on the workman but has not considered the same.

54. It is Held Rustom and Hornsby Ltd. Vs T B Kadam 33 Labour court may interfere with the
finding of a domestic inquiry where the penalty imposed is shockingly disproportionate to
charge found against the workman.
55. In the present case labour court neither founded the considered that no domestic enquiry held
and nor considered that the punishment imposed by the employer without affording an
opportunity and dismissed the workman is highly disproportionate. Thus directed the
employer to terminate the workman without any concrete finding.
56. The termination of an employee's service must be preceded by a proper domestic inquiry
held in accordance with rules of natural justice held in State Bank of India vs. R K Jain 34.
The counsel submits that the workman was not given reasonable chance to put forward his
case , which is unfair as the inquiry is not held and same violate the right of equality which
is enriched under article 14 of our constitution on the ground of in-accordance with principle
of natural justice. And thus the termination of workman from the service is against natural
justice due to its non-compliance with the rule of natural justice.
57. GMD and Corpn.Vs P.H Brohmbhatt35 Held If the Tribunal is satisfied that the order of
discharge is punitive or mala fide or is made to victimize the workman or amount to unfair
labour .practice , it is competent to set aside.
58. The counsel here contends that Labour court has not properly gone through the arbitrary
action taken by Management and also not evaluated the procedure followed by the
Management in terminating the workman. Furthersubmits that the order passed by employer
to dismiss the workman amounts to unfair labour practice as same does not comply principle
of equality and same need to set aside by the honble court.
59. In case of Saxby and Farmer India Ltd. Vs Third Industrial Tribunal 36 ,It was Held; For
domestic inquiry to be fair the rule of natural justice must be followed. Natural justice
requires that the contesting parties should be given opportunity of being heard no man
should be a judge of his own cause, the decision arrived at should be in good faith and an
orderly course of procedure should be adopted during inquiry.
60. The counsel urges that the proper procedure established for inquiry must be follow to arrive
at decision which is to be in good faith and in accordance with the natural justice and must
comply with equality and exclude arbitrary action.But here no inquiry is conducted as the
33
AIR 1975 SC 2025
34
AIR 1974 SC 136
35
AIR 1970 SC 136
36
1962 II LLJ 52 (Cal)

MEMORIAL ON BEHALF OF PETITIONER

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rule of natural justice Audi Alteram Partem of workman is violated as no opportunity is

given to him.
4.2 DIRECTION OF TERMINATION IS INAPPROPRIATE.
61. It is urged that there is bias against workman as neither charges alleged against workman
was proved nor the workman was allowed to rejoin the duties without any reasonable reason
therefore the labour Court was not fully justify in exercising is jurisdiction under section
11(A)37of the act and therefore we request the Hon’ble High Court to quashed said order.
62. Here the counsel urged that the findings on merit are vitiated on accounts of violation of
principle of natural justice . The labour Court has not properly gone through the arbitrary
action and also not pointed out any infirmities, in said order and it has therefore erroneously
come to conclusion that the order of termination was proper and upheld the same . All the
judicial body including Labour Court is bound by the divine law. The Labour Court has
wrongly concluded the termination instead it is ought to have directed the reinstatement of
workman.
63. In the case of B. Viswanatha Rao vs management of Canara bank and others 38,it is said that
“Holding of a fair and regular enquiry is sine quo non before an order of dismissal is passed
on the ground of misconduct. The Disciplinary Enquiry is a quasi- judicial enquiry which is
held according to the principles of natural justice and the Enquiry Officer has a duty to act
judicially because the charges of misconduct, if proved will result not only in deprivation of
livelihood of the workman but will also attach stigma to his character.” In the present case
this principle is overlooked by disciplinary authority as well as Labour Court while passing
the order of termination
4.3MR. LOUIS IS ENTITLED FOR COMPENSATION WITH BACK
WAGES COMPENSATION.
64.In the case of Hindustan Tin Works (P) Ltd v Employees39 it has been held by a
three-judge bench of the Supreme Court that "...Full back wages would be the
normal rule and the party objecting to it must establish the circumstances
necessitating departure." The bench also observed that this ratio has been
subsequently followed in various decisions by the Supreme Court.
65.The counsel submits that the employer is liable to pay wages to the workman as

37
Industrial Dispute Act, 1947
38
2005 (1) KarLj 562
39
Hindustan Tin Works (P) Ltd v Employees

MEMORIAL ON BEHALF OF PETITIONER

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the employer has failed to comply with principle of natural justice which
rendered it illegal in law and there is no reasonable circumstances to deny the
same to the workman.
66.The Supreme Court relied on the case of Deepali Gundu Surwase v. Kranti
Junior Adhyapak Mahavidyalaya40 which laid down certain principles for the
payment of back wages, and unequivocally stated that, "...In cases of wrongful
termination of service, reinstatement with continuity of service and back wages
is the normal rule...". The aforesaid rule is subject to the rider that the
adjudicating authority/courts may take into consideration "...the length of
service of the employee/workman, the nature of misconduct, if any, found
proved against the employee/workman, the financial condition of the employer
and similar other factors...".
67.The counsel submits that the termination without due compliance with rule of
natural justice amounts to wrongful termination of an employee. The
management has followed unfair Method in removing or terminating an
employee without assigning valid opportunity on valid grounds. It is treated as
unfair on the part of employer as an workman is removed without giving him
opportunity of being heard which is also against to the principles of natural
justice.
68.It further held that, "...If the employer wants to deny back wages to the
employee or contest his entitlement to get consequential benefits, then it is for
him/her to specifically plead and prove that during the intervening period the
employee was gainfully employed and was getting the same emoluments...".
69.The counsel submits that the denial of back wages to an workman, who has
suffered mental trauma due to an illegal act of the employer would amount to
indirectly punishing the workman concerned, by relieving the employer of the
obligation to pay back wages. Therefore, the management is required to
perform necessary obligations to reinstate the workman with full wages.
PRAYER
40
Surwase v. Kranti Junior Adhyapak Mahavidyalaya

MEMORIAL ON BEHALF OF PETITIONER

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In the light of the facts stated, issues raised, arguments advanced and
authorities cited, it is most humbly prayed by the respondent that the Hon’ble
Supreme court may be pleased to:
(i) To allow the petition filed by petitioner,
(ii) To quash the award pass by Labour Court to terminate the workman,
(iii)To reinstate the workman with full back wages,
(iv) To direct the employer to compensate the workman with 25000 rupees,
(v) To order the employer to pay the necessary charges with interest incurred by the
respondent on proceedings till today.
(vi) To pass such orders as may be deemed necessary on the facts and in
circumstances of the case.

For this act of Kindness and Justice, the petitioner, as in duty bound, shall forever
pray.

Place: ANDUIN Respectfully Submitted by Date:

(Counsel on behalf of the petitioner)

MEMORIAL ON BEHALF OF PETITIONER