BEFORE THE HON’BLE HIGH COURT OF UTTAR NAGAR

IN THE MATTER OF:

TRADE UNION OF MALAL INDUSTRY …PETETIONER

VERSUS

MALAL INDUSTRY ...RESPONDENT

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Counsel Appearing on behalf of the petitioner

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THE TABLE OF CONTENTS

INDEX OF AUTHORITY

STATEMENT OF JURISDICTION

ISSUES

SUMMARY OF FACT

STATEMENT OF ARGUMENTS

ARGUMENTS ADVANCED

PRAYER

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THE INDEX OF AUTHORITIES

STATUTES:

1. CONSTITUTION OF INDIA, 1950.

2. FACTORIES ACT, 1948.

3. INDUSTRIAL DISPUTES ACT, 1947.

4. PAYMENT OF WAGES ACT, 1936.

5. THE EMPLOYEES COMPENSATION ACT, 1932.

6. THE MATERNITY BENEFIT ACT, 1961.

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ABBREVATION

S.No. ABBREVATION FULL FORM

1. & AND
2. A.I.R. ALL INDIA REPORTER
3. Anr. ANOTHER
4. Art. ARTICLE
5. H.C. HIGH COURT
6. Hon’ble HONORABLE
7. i.e., THAT IS
8. Ors. OTHERS
9. P. PAGE
10. r/w READ WITH
11. S.C. SUPREME COURT
12. S.C.C. SUPREME COURT CASES
13. S.C.R. SUPREME COURT REPORTER
14. Bom. BOMBAY
15. L.R. LAW REPORTER

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LIST OF CASES

LIST OF CASES

1. Abhilasha and Ors. v. H.P. State Forest Corporation, 2000 A.C.J. 666.

2. ACIT v. Banswara Syntex Ltd. (2005) 272 I.T.R. 642 (Raj).

3. All India Central Government Health Scheme Employees' Association (Delhi Branch)
v. Union of India, I.L.R. (2009) 5 Del. 771.
All India Lawyers Forum for Civil Liberties v. Union of India, (1999) 5 S.C.C. 714.
4.

5. Anima Goel v. Haryana State Agricultural Marketing board case, (2008) 1 S.L.J. 121
P. H.

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THE STATEMENT OF JURISDICTION

The Petitioner has humbly approached the Hon’ble High Court under Art.226 of the
Constitution of Uttar Nagar, 1950.

“Article 226- Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers,

throughout the territories in relation to which it exercise jurisdiction, to issue to any

person or authority, including in appropriate cases, any Government, within those

territories directions, orders or writs, including writs in the nature of habeas corpus,

mandamus, prohibitions, quo warranto and certiorari, or any of them, for the

enforcement of any of the rights conferred by Part III and for any other purpose

(2) The power conferred by clause (1) to issue directions, orders or writs to any

Government, authority or person may also be exercised by any High Court exercising

jurisdiction in relation to the territories within which the cause of action, wholly or in

part, arises for the exercise of such power, notwithstanding that the seat of such

Government or authority or the residence of such person is not within those

territories”.

The Petitioner humbly submits to the jurisdiction of the Hon’ble High Court.

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THE STATEMENT OF FACTS

Zara, the citizen of Estancia in the country Asiana, married to Altaf was working in Thor
Industrial Sector as a laborer for last 39 months. Thor Industrial Sector was one the most
successful industries in Asiana and contributes to the economic and Social welfare. i.e 20th
February 2022. Her Supervisor, Mr. Arushi Iyer instructed her to shift some Grain bags which
were lying outside, into the warehouse of the factory.

2. She requested her supervisor to assign her some other work, since she is in family way (three
months pregnancy) and her doctor had advised her not to lift heavy weighing things. The
supervisor was adamant and insisted to her that it was an order from the superiors; disobeying
will result in removing her from the services as her employment was not confirmed. Even after
all the instructions, she was not willing to lift the bags, therefore the Supervisor coerced her to
complete the work before 6:00 PM.

3. She had no other alternative than to execute the work assigned to her and at about 5:45 pm
she was feeling tired and was also having pain in her lower abdomen. She approached the
dispensary of the factory outlet and the doctor gave her the option of either taking some pain
killer tablets (knowing the fact that she was pregnant) or resting for an hour. However she
decided to take tablets and thereafter continued with her normal work, as the pain had
subsided for a few hours. When she left for her residence, she could again feel the lower
abdominal pain which became unbearable. Then her Husband and Father-in-law took her to
the nearby hospital.

4. She was examined by the Gynecologist Dr. Shraddha and after preliminary examination, the
Doctor advised Mr. Altaf to immediately admit her to the hospital. However, the process of
miscarriage has already started and she lost the child due to imminent abortion. Her
Gynaecologist identified the reasons for miscarriage to be the after effects of the pills taken by
her at the factory and lifting of the heavy bags.

5. A year before this, she had suffered a miscarriage. After a month, when her health improved,
her husband had an altercation over the miscarriage issue stating that she cannot become a
mother. She moved to her parents’ house who were quite poor and not in a position to
maintain her. After all this difficulties, Zara United with her husband on 17th November 2021,
After recovering from the 2nd miscarriage, Zara reported for duty on 15th March 2022, her
supervisor informed her thathad been replaced and her services were not required anymore.
Even she has not been paid any of her dues.

6. The news of this occurrence reached the registered Trade Union in the Thor Industrial Sector.
The trade union called an emergency meeting and decided to hold a silent strike on the
premises of the factory. The workers went on a strike and the negotiations between the
management and the trade union failed, leading to a lock out decided by the management.

7. Thereafter when the Trade Union found out that Zara had taken the pills given by the doctor
who was aware that she was pregnant, few Union members were agitated by this gross
violation of labour laws. The next day the few angry union members started throwing stones at
the bungalow
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of Mr. Arushi Iyer and even broke the windows of his office. Arushi Iyer was provoked by

thisand Since he had a good relationship with the President of the regional ruling political

party, he was able to hire bouncers who used coercive force including lathi-charge on the

workers, which further deteriorated the situation.

8. The Trade Union filed a suit for violation of constitutional principles under Article 21 and

noncompliance of the standards set for the workers in factories and use of bouncers. In return

Malala Industrial Sector filed a counter suit for attack on its supervisor and illegal strike held by

the Trade Union as the industry deals with food items and is classified as essential services.

9. The court combined both the petitions and set the date for hearing on 25th August 2022..

For administrative purposes, the Trade Union will be Petitioners and Malala Industry will be

Respondents.

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THE STATEMENT OF ISSUES

1. Whether the petition filed by the Malal Industrial Sector is maintainable?

2. Whether a person who is working in industry for 3 years, can be denied the rights

as defined u/s 9 of The Maternity Benefit Act, 1961 (i.e. leave for miscarriage) &

then financial assistance?

3. Whether there has been violation of right to life enshrined under Article 21 of the

Constitution of India, 1950 or not?

4. There has been negligence on part of the trainee doctor of the dispensary of the

factory by giving pain killer pills which further accelerated the process of

miscarriage. Who would be liable to pay compensation?

5. Whether miscarriage can become a reason for justifying Triple Talaq?

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THE SUMMARY OF ARGUMENTS

1. That the petition filed by the Malal Industrial Sector is not maintainable.

It is humbly submitted before this Hon’ble High Court that the petition filed by the Malal

Industrial Sector is not maintainable because they have not exhausted the alternative remedy

which is provided under ID Act.

2. That a person who is working in industry for 3 years, cannot be denied the rights as

defined u/s 9 of The Maternity Benefit Act, 1961 (i.e. leave for miscarriage) & then

financial assistance.

It is humbly submitted before this Hon’ble High Court that a person who is working in

industry for 3 years, cannot be denied the rights as defined u/s 9 of The Maternity Benefit

Act, 1961 (i.e. leave for miscarriage) & then financial assistance. It is because a person

placed under probation will also come under the definition of workmen under ID Act, 1947

and every woman who is workmen, is entitled to the said relief.

3. That there has been violation of right to life enshrined under Article 21 of the

Constitution of India, 1950.

It is humbly submitted before this Hon’ble High Court that there has been violation of right

to life enshrined under Article 21 of the Constitution of India, 1950. Zara’s right to

motherhood, right to livelihood are violated which are part of Right to life.

4. That there has been negligence on part of the trainee doctor of the dispensary of the

factory by giving pain killer pills which further accelerated the process of miscarriage.

The factory is liable to pay the compensation.

It is humbly submitted before this Hon’ble High Court that there has been negligence on part

of the trainee doctor of the dispensary of the factory by giving pain killer pills which further

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accelerated the process of miscarriage. The factory being the employer would vicariously be

liable to pay compensation.

5. That miscarriage cannot become a reason for justifying Triple Talaq.

It is humbly submitted before this Hon’ble High Court that miscarriage cannot become a

reason for justifying Triple Talaq as per the Holy Quran as there must be a reasonable cause

for giving Talaq which is absent in this case.

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THE ARGUMENTS ADVANCED

1. That the petition filed by the Malal Industrial Sector is not maintainable.

1) It is most humbly submitted before this Hon’ble High Court that the counter suit filed by

Malal Industrial Sector is not maintainable. For adjusting of labor disputes, recourse

should be had to the machinery provided under the Industrial Disputes Act, 1947. 1 The

Supreme Court has laid down the proposition that when statutory forum or Tribunal is

specially created by a Statute for redressal of specified grievances of persons on certain

matters, the High Court should not normally permit such persons to ventilate their

specified grievances before it by entertaining petitions under Art.226 of the Constitution. 2

In the present case, Malal Industry without first going to the alternative remedy provided

under section 103 of ID Act, 1947 has directly approached this Hon’ble High Court which

is not permitted. The High Court will not permit by entertaining a petition under Art.226

of the Constitution the machinery created under Statute to be bypassed, and will leave

the party applying to it to seek resort to the machinery to set up.4

2)

In Thansingh Nathmal And Ors v. A. Mazid, Superintendent Taxes,5 the Apex Court

adverted to the rule of self-imposed restraint that the writ petition will not be entertained if

an effective remedy is available to the aggrieved person. In Titaghur Paper Mills Co. Ltd. v.

State of Orissa,6 Apex Court observed that “It is now well recognised that where

1
Basant Kumar v. Eagle Rolling Mills, A.I.R. (1964) S.C.1260; Prafulla Chandra v. Oil of India, A.I.R (1971) S

4
All India Lawyers Forum for Civil Liberties v. Union of India, (1999) 5 S.C.C. 714.

5
Thansingh Nathmal And Ors v. A. Mazid, Superintendent Of Taxes, (1964) 6 S.C.R. 654.

6
Titaghur Paper Mills Co. Ltd v. State Of Orissa, (1983) 2 S.C.C. 433.

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a right or liability is created by a statute which gives a special remedy for enforcing it, the

remedy provided by that statute only must be availed of.” The respondents could not

invoke the extraordinary jurisdiction under Art.226 for redressal of his grievances, by-

passing the special forum created specifically by law for redressal of such grievances

adequately.7

2. A person who is working in industry for 3 years, cannot be denied the rights as defined

u/s 9 of The Maternity Benefit Act, 1961 (i.e. leave for miscarriage) & then financial

assistance.

It is humbly submitted before this Hon’ble High Court that Zara cannot be denied the

rights defined u/s 9 of The Maternity Benefit Act, 1961 (i.e. leave for miscarriage) & then

financial assistance.

Section 9 of The Maternity Benefit Act reads as:

“Leave for Miscarriage-In case of miscarriage or medical termination of pregnancy, a

woman shall, on production of such proof as may be prescribed, be entitled to leave

with wages at the rate of maternity benefit for a period of six weeks immediately

following.

7
State of Uttar Pradesh v. Labh Chand, (1993) 1 S.C.R. 878.

8
Neville v. London Express Newspapers Ltd. (1919) (A.C.) 368; Tobago v. Gordon Grant and Co. Ltd., (1935)
A.C. 532 (P.C.); Secy. of State v. Mask and Co., 1940 (42) Bom.L.R. 767.

9
Nivedita Sharma v. Cellular Operators Assn. of India, (2011) 14 S.C.C. 337; G.K.N. Driveshafts (India) Ltd. v. ITO
(2003) 1 S.C.C 72; ACIT v. Banswara Syntex Ltd. (2005) 272 I.T.R. 642 (Raj.).

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3. That there has been a violation of right to life enshrined under Article 21 of the

Constitution.

It is humbly submitted before this Hon’ble High Court that there has been a violation of

Article 21 of the Constitution. Article 21 of the Constitution reads as: Protection of life

and personal liberty: No person shall be deprived of his life or personal liberty except

according to procedure established by law.

She was not even paid any of her dues. But Acc. to Section 2(iv)(d) of Payment of

Wages Act, 1936, Wages includes:

any sum which by reason of the termination of employment of the person employment is

payable under any law, contract or instrument which provides for the payment of such

sum whether with or without deductions, but does not provide for the time within which

the payment is to be made.

Also Acc. to Section (5) of Payment of Wages Act, 1936: In case of the termination of employment

of an employee, the wages earned by him shall be paid before the expiry of the second working

day from the day on which employment is terminated

33
C.E.S.C. Limited v. Subhash Chandra Bose, (1992) 1 S.C.C. 441, 463.

34
Common Cause v. Union of India, (1999) 6 S.C.C. 667.

35
Devshree Bande v. Chattisgarh State Power Holding Company Ltd. and Ors, 2017 (5) C.G.L.J. 340.

36
Bandhua Mukti Morcha v. Union of India, (1984) 3 S.C.C. 161.

37
Board of Trustees of the Port of Bombay v. Dilipkumar R. Nandkarni, A.I.R.1983 S.C. 109.

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4. That there has been negligence on part of the trainee doctor of the dispensary of the

factory by giving pain killer pills which further accelerated the process of miscarriage.

The Malal Industry would be liable to pay compensation.

It is humbly submitted before this Hon’ble High Court that there has been negligence on

the part of the trainee doctor of the dispensary of the factory by giving pain killer pills

which further accelerated the process of miscarriage. Malal Industry would be vicariously

liable to pay compensation for the negligence of the trainee.

In Section 10 of the Factories Act, 1948 a qualified medical practitioner means a person

holding a qualification granted by an authority. In the present case the trainee is

employed by the factory which has an authority to employ the professionals in the

dispensary and hence is a qualified medical practitioner enshrined in this section.

Halsbury’s Laws of England, states –

“Duties to the patients” as: “a person who holds himself out as ready to give medical

advice or treatment impliedly undertakes that he is possessed of skill and knowledge for

the purpose. Such a person, whether he is a registered medical practitioner or not, who is

consulted by a patient, owes him certain duties, namely, a duty of care in deciding

whether to undertake the case; a duty of care in deciding what treatment to give; and a

duty of care in his administration of that treatment. A breach of any of these duties will

support an action for negligence by the patient42”.

43
Mahadev Prasad Kaushik v. State of U.P. and Ors., (2008) 14 S.C.C. 479; Laxman Balkrishna Joshi v. Trimbak
Bapu Godbole And Anr., (1969) 1 S.C.R. 206; Bolam v. Friern Hospital Management Committee, (1957) 1 W.L.R.
582.

44
Jacob Mathew v. State of Punjab, A.I.R. 2005 S.C. 457.

45
Parmanand Kataria v. Union of India, (1989) 3 S.C.R 997

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5. That miscarriage cannot become a reason for justifying Triple Talaq.

The Counsels on behalf of the Petitioners humbly submits that miscarriage cannot

become a reason for justifying Triple Talaq.

A Muhammadan husband cannot divorce his wife at his whim or caprice i.e., divorce

must be for a reasonable cause and it must be preceded by a pre-divorce conference to

arrive at a settlement prior to the divorce and when there was no such attempt prior to

divorce to arrive at a settlement by mediators, then there cannot be a valid divorce under

the Muhammadan Law.54 In Firdaus Bano v. Mohammad Ashraf,55 the correct law of

Talaq as ordained by the holy Quran is that Talaq must for a reasonable cause and must

be preceded by attempts of reconciliation. A divorce must be pronounced orally in the

presence of competent witness.

29) In the present case, the Talaq was not pronounced in the presence of any witnesses. The

husband pronounced Triple Talaq stating that she cannot become mother again which

cannot be a reasonable ground to give Talaq . The husband never denied her employment

in the factory and it is not the woman who is responsible she for the act of miscarriage

53
Hindustan Aeronautics Limite v. M.S. Bhagya, 1999 (4) L.L.N. 303 (Kant H.C.).
54
Zulakha Begum Alias Rahamathunnisa Begum v. Abdul Rahim, I.L.R. 2000 (Kar.).
55
Firdaus Bano v. Mohammad Ashraf, 2008 (2) M.P.H.T. 111 C.G.

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and it is only because of the negligence of the factory that the miscarriage took place. It

cannot be justified to make her suffer because of no mistake of hers. Though there has

occurred two miscarriages there is always a chance that the women can give birth even

after this and hence the act of the husband cannot be justified.

68
Ex-Capt. Harish Uppal v. Union of India, A.I.R. 2002 S.C.R. 1141.
69
Industrial Disputes Act, 1947, s. 2(1).
70
General Labour Union (Red Flag) v. B. V. Chavan And Ors., (1985) 2 S.C.R. 64.
71
M/s. Tata Iron and Steel Co. Ltd v. Workmen of M/s. Tata Iron and Steel Co. Ltd., (1973) 1 S.C.R. 594.
72
Industrial Disputes Act, 1947, s. 22(2).

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THE PRAYER

Wherefore, in the lights of facts stated, issues raised, authorities cited & arguments

advanced, it is most humbly prayed & implored before the Hon’ble High Court, that it

may be graciously pleased to adjudge & declare –

1. That the petition filed by the respondents is not maintainable,

2. That the Zara shall be granted leave for miscarriage and financial assistance,

3. That Malal Industry is liable to pay compensation,

4. That the miscarriage cannot become a reason for triple Talaq,

5. That the strike is justified and lockout on part of factory is not justified,

AND/OR

Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of

Justice, Fairness, Equity & Good Conscience. For This Act of Kindness, the Prosecution

Shall Duty Bound Forever Pray.

COUNSEL FOR THE PETITIONER

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