IN THE HONORABLE SUPREME COURT OF ESTANCIA

Case filed seeking an Order under Article 226 of the Constitution of ESTANCIA

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

. Trade union ………………………Petitioner

v.
Poonkudil industry ………………………. Respondent

Trade union Vs. Poonkudil industry

Most respectfully submitted before the Hon’ble Chief Justice and companion
Judges of Supreme Court of Estancia

MEMORANDUM ON BEHALF OF THE RESPONDENT

DRAWN AND FILED BY THE COUNSELS FOR THE RESPONDENT
 TABLE OF CONTENTS

INDEX OF AUTHORITIES………………………………………………………… 3

ABBREVIATIONS AND EXTENSIONS ………………………………………… 4

STATEMENT OF JURISDICTION ……………………………………………….. 6

STATEMENT OF FACTS ………………………………………………………… 7

STATEMENT OF ISSUES ……………………………………………………….... 9

SUMMARY OF ARGUMENTS ……………………………………………...…… 10

ARGUMENTS ADVANCED ……………………………………………………… 11

PRAYER…………………………………………………………………………….. 17
 INDEX OF AUTHORITIES

LEGISLATIONS REFERRED
1. The Constitution Of Estancia, 1950
2. Industrial Disputes Act, 1947
3. Factories Act, 1948
4. The Trade Unions Act, 1926
5. Maternity Benefit Act, 1961
CASES REFERRED
1. Calcutta Chemical Co. v CCC Trade Union
2. Virendra Swaroop Srivastava Son ... ...
3. United Labour Federation vs The Management Of Rickett
4. Surendra Kumar Verma Etc vs The Central Government
5. TISCO Ltd v. Workmen
6. T.K. Rangarajan v Government of Tamil Nadu
7. General Labour Union (Red Flag) v/s B. V. Chavan And Ors
8. Kingfisher Airlines v Balwant Rai Saluja
9. Olga Tellis vs. Bombay Municipal Corporations
10. Mewa Ram v. A.I.I. Medical Science
11. State of Orissa v. Balaram Sahu

BOOKS REFERRED
1. J N Pandey, Constitutional Law Of Estancia, Central Law Agency, 2014, 51th Edition
2. Ascent Publication's Labour Law I by Dr. Ashok Kumar
3. Andhra Law House's Lectures on Labour & Industrial Laws for LL.B by Dr. Rega surya Rao
4. Allahabad Law Agency's Labour & Industrial by Meenu Paul
5. Central Law Publication's Handbook on Labour Laws for LL.B by Prof. Ullas Kumar Saha
WEBSITE REFERRED
1. https://www.ilo.org/legacy/english/dialogue/ifpdial/llg/ch5/ex4.htm
2. https://ncib.in/pdf/ncib_pdf/Labour%20Act.pdf
3. https://www.legalserviceindia.com/legal/article-2083-strikes-and-lockouts-a-
contemporary-analysis.html
4. https://law-all.com/index.php?route=product/category&path=59_767_63_162_163_166
5. https://cgit.labour.gov.in/cause-list
6. https://www.legalserviceindia.com/articles/dispute.htm

ABBREVIATIONS AND EXTENSIONS

ABBREVIATION EXTENSION

NO. Number

AER All Estancia reporter

ART Article
IDA Industrial disputes act,1947

Ed Edition

Hon’ble Honurable

TUA Trade union act ,1926

WCA Workmens compensation act ,1923

No Number

Sec Section

hC The high court of estancia

ACC Apex court cases

ACR Apex court reporter

Vol Volume

SC Supreme court

PIL Public interest litigation

 STATEMENT OF FACTS

1. Pooja , the citizen of Estancia in the country Asiana, married to Ashok, worked as a
laborer in Poonkudil Industrial Sector for the last 39 months. Her Supervisor, Mr. Ashik
Patel instructed her to shift some Grain bags which were lying outside, into the
warehouse of the factory.
2. 2. She requested her supervisor to assign her some other work, since she is in family way
(three months pregnant) and her doctor had advised her not to lift heavy weighing things.
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.
3. 3. She was examined by the Gynecologist Dr. Wraddha. 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.
4. 4. 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.
5. 5. The Trade Union filed a petition for violation of constitutional principles under Article
21 and non-compliance of the standards set for the workers in factories and use of
bouncers. In return Thor 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.

STATEMENT OF JURISDICTION
It is most humbly and respectfully submitted that the Petitioner has approached this Hon’ble
High Court under Art. 226 of the Constitution of Estancia and accepts that this Hon’ble court has
the inherent jurisdiction, power, and authority to try, entertain and dispose of the present petitions
clubbed together by virtue of Art. 226 of The Constitution of Estancia.The petitioner sets forth
the facts and laws on which the claims are based.

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.

STATEMENT OF ISSUES
1. WHETHER THE ACTION OF THE EMPLOYER IS A VIOLATION OF ARTICLE 21
OF THE INDIAN CONSTITUTION?
2. WHETHER THE STRIKE HELD BY THE TRADE UNION IS ILLEGAL?

SUMMARY OF ARGUMENTS

1. WHETHER THE ACTION OF THE EMPLOYER IS A VIOLATION OF

ARTICLE 21 OF THE INDIAN CONSTITUTION?
No, it is humbly submitted to the honorable high court that the petition filed by the trade union
under article 21 of the trade union before the Hon’ble High Court is not maintainable or violative
of article 21 either. Since there is no human right violation or collective interest being affected.
and it's just the personal interest of Mrs.Pooja which projected through the trade union to make
losses to the industry. Article 21 of Mrs. Pooja is not violated because the miscarriage of Mrs.
Pooja is not caused through the negligence of the Industries and she successfully instigated the
trade union to conduct their strike and lockouts without any prior notification to the Thor
industrial sector.
2.. WHETHER THE STRIKE HELD BY THE TRADE UNION IS ILLEGAL?
It is humbly submitted before this hon’ble High Court of Estancia that the act of cessation of
work by the trade union which is a body of persons employed in the industry acted in
combination, or a concerted refusal, or a refusal under a common understanding of the members
who demonstrated a silent strike held by the registered trade union is illegal as it was in
compliance with law.
ARGUMENTS ADVANCED
1. WHETHER THE ACTION OF THE EMPLOYER IS A VIOLATION OF ARTICLE 21
OF THE INDIAN CONSTITUTION?
No, it is humbly submitted to the honorable high court that the petition filed by the trade union
under article 21 of the trade union before the Hon’ble High Court is not maintainable or violative
of article 21 either. Since there is no human right violation or collective interest being affected.
and it's just the personal interest of Mrs.Pooja which projected through the trade union to make
losses to the industry. Article 21 of Mrs. Pooja is not violated because the miscarriage of Mrs.
Pooja is not caused through the negligence of the Industries and she successfully instigated the
trade union to conduct their strike and lockouts without any prior notification to the Thor
industrial sector.
A) Rights guaranteed by the constitution and violated by Thor Industries
1. As Article 21 reads, “Protection of Life and Personal Liberty: No person shall be deprived of
his life or personal liberty except according to procedure established by law.” As we speak about
wages and employment as a right under article 21, In the case of the State of Karnataka v.
Umadevi, the Court rejected that right to employment at the present point of time can be
included as a fundamental right under the Right to Life under Art. 21.
2. The miscarriage caused to her, cannot be made as a mistake done by Poonkudil Industries.
Here, Mrs. Pooja is being little hesitant about work and that's the reason the supervisor make her
do the allotted work also no was in the fact, it is mentioned that lifting up the heavy material is
the reason for the miscarriage caused to Mrs. Pooja And Pooja is a child baring mother with all
the intellect mother should have, as she mentioned to the supervisor about not lifting the weight.
3. Then, the pill was given to her and taken by her happened out of the full consent of Mrs. Pooja
. No, where in the facts it has been mentioned about the pill was taken out of coercion or
compulsion. Mrs. Pooja is not a teenager or a child to be taught about the after-effects of the pill
and still, she consented to take the pill. Pooja had the option to take rest or take the pill, but still,
she picked the option she wanted to reduce her pain in an instant or may be intended to miscarry
the pain. And trade unions have just used up this cause to root up against industries.

B) The violation of the right to livelihood under article 21 and DPSP of the Estancia
constitution.
1. As Article 21 reads, “Protection of Life and Personal Liberty: No person shall be deprived of
his life or personal liberty except according to procedure established by law.” As we speak about
wages and employment as a right under article 21, In the case of the State of Karnataka v.
Umadevi, the Court rejected that right to employment at the present point of time can be
included as a fundamental right under the Right to Life under Art. 21.
2. Here, the employer has his own right to remove any employer for misbehaving or for the long
absence and even bad conduct on the Site. Here, the doctrine of equal pay or pay at the time
maternal benefit cannot be applied. In Mewa Ram v. A.I.I. Medical Science, the Supreme Court
has held that the doctrine of 'equal pay for equal work' is not an abstract doctrine. Equality must
be among equals, unequals cannot claim equality. Even if the duties and functions are of similar
nature but if the educational qualifications prescribed for the two posts are different and there is a
difference in the measure of responsibilities, the principle of equal pay for equal work would not
apply. Different treatment of persons belonging to the same class is permissible classification on
the basis of educational qualifications.
3. The miscarriage is not been informed to the industry by Mrs. Pooja, this can be proved by
even the trade union was not aware of the fact Mrs. Pooja miscarried. The management was
unhappy about the uninformed leave and not willing to take up the job assigned to her. The
reason to lose her job is just because of her negligence caused by her choosing the option given
by the doctor, informing the reason for her absence. Here there is no violation of article 21 or
restraining of social security.

2. WHETHER THE STRIKE HELD BY THE TRADE UNION IS ILLEGAL?

It is humbly submitted before this hon’ble High Court of Estancia that the act of cessation of
work by the trade union which is a body of persons employed in the industry acted in
combination, or a concerted refusal, or a refusal under a common understanding of the members
who demonstrated a silent strike held by the registered trade union is illegal as it was in
compliance with law.
1. THE RIGHT TO STRIKE IS NEITHER FUNDAMENTAL NOR ABSOLUTE
Even a very liberal interpretation of Article 19(1) (c) will not lead to the conclusion that the trade
unions have a guaranteed right to an effective collective bargaining or to strike, either as part of
collective bargaining or otherwise. The right to strike or the right to declare a lockout may be
controlled or restricted by appropriate industrial legislation. (Baldev Singh Gandhi v. State of
Rajasthan, AIR 2002 SC 1124).
24. Illegal strikes and lockouts.—(1) A strike or a lock-out shall be illegal if— (i) it is
commenced or declared in contravention of section 22 or section 23; or (ii) it is continued in
contravention of an order made under sub-section (3) of section 10 1 [or sub-section (4A) of
section 10A].
(2) Where a strike or lock-out in pursuance of an industrial dispute has already commenced and
is in existence at the time of the reference of the dispute to a Board, 4 [an arbitrator, a] 2 [Labour
Court, Tribunal or National Tribunal], the continuance of such strike or lock-out shall not be
deemed to be illegal, provided that such strike or lock-out was not at its commencement in
contravention of the provisions of this Act or the continuance thereof was not prohibited under
sub-section (3) of section 10 4 [or sub-section (4A) of section 10A].

(3) A lock-out declared in consequence of an illegal strike or a strike declared in consequence

of an illegal lock-out shall not be deemed to be illegal.
In the case of Mineral Miners’ Union v. Kudremukh Iron Ore Co. Ltd. ILR 1988 KAR 2878, the
court held: “The consequential hardship to go on strike, due to the delay in the action of the
authorities under the Act, was held to be unfortunate, by the Supreme Court; but such a delay
would not vest a right in the workmen to ignore the mandatory requirements of the law. The
remedy of workmen lies elsewhere. As the Act now stands, it is not possible to entertain the plea
put forth by the learned Counsel for the workmen.”
2. NATURE OF THE STRIKE IS IMMATERIAL
The purpose for which the strike was declared is not relevant in directing the legality:
The justifiability of strike has no direct relation to the question of its legality and illegality. The
justification of strike as held by the Punjab & Haryana High Court in the case of Matchwell
Electricals of India v. Chief Commissioner, (1962) 2 LLJ 289, is entirely unrelated to its legality
or illegality. The justification of strikes has to be viewed from the standpoint of fairness and
reasonableness of demands made by workmen and not merely from the standpoint of exhausting
all other legitimate means open to them for getting their demands fulfilled.
In Syndicate Bank v. K. Umesh Nayak, (AIR 1995 SC 319) Justice Sawant opined: “The strike,
as a weapon, was evolved by the workers as a form of direct action during their long struggle
with the employer, it is essentially a weapon of last resort being an abnormal aspect of employer-
employee relationship and involves withdrawal of labour disrupting production, services and the
running of enterprise.

It is a use by the labour of their economic power to bring the employer to meet their viewpoint
over the dispute between them. The cessation or stoppage of works whether by the employees or
by the employer is detrimental to the production and economy and to the well-being of the
society as a whole. It is for this reason that the industrial legislation, while not denying the rights
of workmen to strike, has tried to regulate it along with the rights of the employers to lockout
and has also provided machinery for peaceful investigation, settlement arbitration and
adjudication of disputes between them.
The strike or lockout is not to be resorted to because the concerned party has a superior
bargaining power or the requisite economic muscle to compel the other party to accept its
demands. Such an indiscriminate case of power is nothing but assertion of the rule of ‘might is
right’.
In the case of Rangarajan v The Union, it relies on a number of case laws dating back to the
1960s (Kameshwar Prasad & AIBE Association). The only recent judgments that the Court
relied upon - namely, Harish Uppal vs, UOI (2003) and Bharat Kr. Palicha vs. State of Kerela
(1998) - to demonstrate that there is no right to strike seems to have been misapplied, contrary to
their letter and spirit.
Thus, initially, employees must resort to dispute settlement by alternative mechanisms. Only
under extreme situations when the alternative mechanisms have totally failed to provide any
amicable settlement, can they resort to a strike as a last resort, which the trade union has failed
on.

PRAYER
In the light of facts stated, issues raised, arguments advanced and authorities cited, the
respondent most humbly and respectfully pray before Hon’ble High Court:

1. To declare that neither the actions of Thor Industry nor that of the State Authorities has
resulted in infringement of any fundamental rights under Article 21
2. To declare that the strike held by trade union is illegal,
3. To pass such other writ(s), order(s) or direction(s) as is deemed fit and proper in the premises
of the case, which is not specifically prayed for hereinabove,

For this act of establishing law and kindness, the respondent shall be duty bound forever. All of
which is humbly prayed.

(Counsel on behalf of Respondent)