Memorial Petitioner

7TH SMT.
KASHIBAI NAVALE MOOT COURT COMPETITION, 2021

TC – SLC
7TH SMT. KASHIBAI NAVALE MOOT COURT COMPETITION, 2021
BEFORE THE HON’BLE SUPREME COURT OF SAURASHTRA

(UNDER ARTICLE 32 OF THE CONSTITUTION OF SAURASHTRA)
WRIT PETITION
IN THE MATTER OF:
SAURASHTRA KAMGAR SANGH.……………………………………….PETITIONER
V.
STATE OF SAURASHTRA………………………………………………..RESPONDENT
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

COUNSEL APPEARING ON BEHALF OF THE PETITIONER
MEMORIAL FOR THE PETITIONER
1
MEMORIAL OF THE PETITIONER
TABLE OF CONTENTS
S.NO. HEADING PAGE

NO.
I LIST OF ABBREVIATIONS 3
II INDEX OF AUTHORITIES 4-7
A ACT AND LEGISLATIONS 4
B BOOKS 5
C LAW DICTIONARIES / LEXICONS 5
D ONLINE DATABASES 5
E LIST OF CASE LAWS 6
III STATEMENT OF JURISDICTION 8
IV STATEMENT OF FACTS 9
V ISSUES RAISED 11
1. WHETHER THE NOTIFICATIONS BY THE LABOUR AND 13

EMPLOYMENT DEOARTMENT IN THE GARB OF INCENTIVIZING
ECONOMIC ACTIVITIES VIOLATES FUNDAMENTAL RIGHTS OF
WORKERS?
2. WHETHER THE ECONOMIC AND FINANCIAL CRISIS CAUSED DUE 19
TO COVID-19 FALLS WITHIN THE AMBIT OF ‘PUBLIC
EMERGENCY’ AS PROVIDED IN SEC. 5 OF THE FACTORIES ACT,
1948?
3. WHETHER THE IMPUGNED NOTIFICATIONS IS ULTRA VIRES OF 22
THE POWER CONFERRED BY SEC. 5 OF THE FACTORIES ACT,
1948?
VI SUMMARY OF ARGUMENTS 12
VII ARGUMENTS ADVANCED 13-25
VIII PRAYER 26
2
LIST OF ABBREVIATIONS
S. NO ABBREVIATION FULL FORM
1) & And
2) AIR All India Record

3) Anr. Another
4) Art./Art Article
5) Bom Bombay
6) Dept. Department
7) Sec. Section
8) e.g. for example
9) Govt. Government
10) Hon’ble Honorable
11) MANU Manupatra
12) p. Paragraph/page
13) Ref. Referred Only
14) SC Supreme Court
15) SCC Supreme Court Cases
16) SCR Supreme Court Reports
17) Ors. Others
18) v. Versus
19) Vol. Volume
20) W.P. Writ Petition
21) Gau Gauhati
3
INDEX OF AUTHORITIES
A. ACTS AND LEGISLATION

S.NO ACTS / LEGISLATIONS
1) Art. 14, The Constitution of India, 1949
15) Sec. 5, Factories Act, 1948
23) Disaster Management Act, 2005
4
B. BOOKS
S.NO BOOKS CITED / REFERRED
1) D.D. Basu, Introduction to the Constitution of India, (22nd Ed. Lexis Nexis, 2015)
2) V. N. Shukla, The Constitution of India, (10th Ed., p.37)
3) PM Bakshi, The Constitution of India, p.91 (14th Ed., 2017)
4) Jain, M.P, Indian Constitutional Law, Sixth Edition 2011, WadhwaButterworths,

Nagpur
C. LAW DICTIONARIES/ LEXICONS

1) Aiyer, Ramanatha P., Advanced Law Lexicon, Third Edition, 2005, Wadhwa, Nagpur.
2) Sethi R.P., Supreme Court on Words and Phrases, 2004, Ashoka Law House.
3) Venkatramaiya, Law Lexicon, Second Edition 2005, Law Publishers (India) Pvt Ltd.
D. ONLINE DATABASE REFFERED

1) Manupatra (www.manupatra.com)
2) Lexis Nexis (www.lexisnexisadvance.com)
3) SCC Online (www.scconline.com)
4) Hein Online (www.home.heinonline.org)
E. OTHER AUTHORITIES
1) Priyanka Guleria and Madhvi Wadhawan, A critique on the suspension of Labor Laws,
Legal Bites, October 2, 2020
2) Sarkaria Commission Report, Chapter VI: Emergency Provisions (1988)
F. LIST OF CASES (In order of mention)
5
S.NO. NAME OF THE CASES WITH CITATION
1) Glenrock Estate(P.)Ltd. v. State of T.N., [2010] AIR SCW 6045
2) Pathumma & Ors. v. State of Kerala and Ors., [1978] AIR SC 771
3) Ameeroonissa v. Mehboob [1953] SCR 404
4) K. Thimmappa v. Chairman, Central Board of Directors SBI, AIR 2001 SC 467
5) National Council for Teachers Education v. Shri Shyam Shikha Sansthan, [2011] 3
SCC 238
6) Municipal Corporation of Delhi v. Ganesh Razak, [1993] 52 DLT 594
7) Supreme Court Employees Welfare Association v. Union of India, AIR 1990 SC

334
8) Municipal Council Latur v. Shivaji Vaijnath Kamble, [1995] (3) BomCR 8
9) Randhir Singh v. Union of India and Ors., [1982] AIR 879
10) State of Madhya Pradesh v. Pramod Bhartiya, [1993] AIR SC 286
11) Shayara Bano v. Union of India and Ors. [2017] AIR SC 4609
12) Nikesh Tarachand Shah v. Union of India & Anr., [2017] AIR SC 5500
13) Dalmia Cement v. Union of India, [1960] AIR SC 143
14) Rubinder Singh v. Union of India, [1982] AIR 879
15) Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295;
16) Francis Coraline Mullin v. UT of Delhi, [1981] AIR SC 756
17) Bandhua Mukti Morcha v. Union of India, [1984] AIR SC 802
18) Vikram Deo Singh Tomar v. State of Bihar, [1988] AIR SC 1782
19) Air India Statutory Corporation v. United Labor Union, [1997] AIR SC 645
20) Maneka Gandhi v. Union of India, [1978] AIR SC 597
6
21) Sunil Batra v. Delhi Admn. AIR 1978 SC 1675
22) People’s Union for Democratic Rights and Ors. v. Union of India and Ors., AIR
1982 SC 1473
23) Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789
24) Jilubhai Nanbhai Kachar v. State of Gujarat, AIR 1995 SC 142
25) Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors. Etc., [1986] AIR SC
180
26) Madhu Kishwar and Ors. v. State of Bihar and Ors., [1996] AIR SC 1864
27) Sanjit Roy vs. State of Rajasthan, [1983] AIR SC 328
28) S R Bommai vs. Union of India, [1994] 2 SCR 644
29) Gujarat Mazdoor Sabha vs. State of Gujarat, AIR 2020 SC 4601
30) State of Tripura & Ors. vs. Pramode Debbarma & Ors., 2007 (1) GLT 740
31) Vasantha R. vs. Union of India (UOI) & Ors., [2001] IILLJ 843 Mad.
32) The Clothing Factory, National Worker’s Union Aradi,, Madras vs. Union of India
and Ors., AIR 1990 SC 1383
7
STATEMENT OF JURISDICTION
The Hon'ble Supreme Court of Saurashtra has jurisdiction to hear the instant matter under:
Article 32 of the Constitution of Saurashtra
Article 32 of the Constitution of Saurashtra reads as: –

“32. Remedies for enforcement of rights conferred by this Part-
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)
(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution”
8
STATEMENT OF FACTS
ABOUT SAURASHTRA KAMGAR SANGH
Saurashtra Kamgar Sangh is a trade union registered under the Trade Unions Act, 1926. It
represents about thirty thousand workers employed in factories and industrial establishments
in the State of Saurashtra.
NOTIFICATION BY THE LABOR AND EMLOYMENT DEPARTMENT
Due to the outbreak of COVID-19, the Labor and Employment Department of the State of
Saurashtra issued various notifications dated 17th April 2020 and 20th July 2020.
Invoking the powers conferred by Section 5 of the Factories Act, 1948, the Govt. of Saurashtra
directed that all the factories registered under the Factories Act, 1948 shall be exempted from
various provisions relating to weekly hours, daily hours, intervals for rest etc. of adult workers
under Sec. 51, Sec 54, Sec. 55 and Sec. 56.
The provisions, whose application the notification sought to exempt factories from 20th April
till 19th July 2020, read:-
(1) No adult worker shall be allowed or required to work in a factory for more than twelve
hours in any day and seventy two hours in any week.
(2) The Periods of work of adult workers in a factory each day shall be so fixed that no
period shall exceed six hours and that no worker shall work for more than six hours
before he has had an interval of rest of at least half an hour.
(3) No female workers shall be allowed or required to work in a factory between 7:00 PM
to 6:00 AM.
(4) Wages shall be in proportion of the existing wages.
Govt. of Saurashtra issued another notification on 20th July 2020 with similar content which
extended the exemption granted to factories from 20th July 2020 till 19th October 2020.
9
FILING OF WRIT PETITION
Aggrieved by the said notifications and using economic chaos as a smokescreen to extract more
work from the workers without paying them their overtime wages in stringent working
conditions, Saurashtra Kamgar Sangh filed Writ Petition invoking the jurisdiction of the
Hon’ble Supreme Court of Saurashtra.
10
ISSUES RAISED
I.
WHETHER THE NOTIFICATIONS BY THE LABOUR AND EMPLOYMENT

DEPARTMENT IN THE GARB OF INCENTIVIZING ECONOMIC ACTIVITIES
VIOLATES FUNDAMENTAL RIGHTS OF WORKERS?
II.
WHETHER THE ECONOMIC AND FINANCIAL CRISIS CAUSED DUE TO

COVID-19 FALLS WITHIN THE AMBIT OF ‘PUBLIC EMERGENCY’ AS
PROVIDED IN SECTION 5 OF THE FACTORIES ACT, 1948?
III.
WHETHER THE IMPUGNED NOTIFICATIONS IS ULTRA VIRES OF THE

POWER CONFERRED BY SECTION 5 OF THE FACTORIES ACT, 1948?
11
SUMMARY OF ARGUMENTS
1. WHETHER THE NOTIFICATIONS BY THE LABOUR AND EMPLOYMENT

DEPARTMENT IN THE GARB OF INCENTIVIZING ECONOMIC ACTIVITIES
VIOLATES FUNDAMENTAL RIGHTS OF WORKERS?
It is humbly submitted before this Hon’ble court that the notifications of the Labor and
Employment Dept. issued on 17th April, 2020 and 20th July, 2020 bear no reasonable
connection to the ultimate purpose, i.e. economic upliftment. The impugned notifications are
therefore pleaded to be declared void as should be held because firstly, the notifications violate
the fundamental rights available to the workers secondly, it completely disregards the vital
Directive Principles of State Policy.
2. WHETHER THE ECONOMIC AND FINANCIAL CRISIS CAUSED DUE TO

COVID-19 FALLS WITHIN THE AMBIT OF ‘PUBLIC EMERGENCY’ AS
It is most humbly submitted before this Hon’ble Court that the economic and financial crisis
caused due to COVID-19 pandemic does not fall within the ambit of ‘public emergency’ firstly,
because it does not fulfil the three essential elements provided in Sec. 5 of the Factories Act,
1948 and secondly, the situation in the present scenario does not constitute ‘internal
disturbance’.
3. WHETHER THE IMPUGNED NOTIFICATIONS IS ULTRA VIRES OF THE

POWER CONFERRED BY SECTION 5 OF THE FACTORIES ACT, 1948?
It is most humbly submitted before this Hon’ble Court that the impugned notifications are ultra
vires of the power conferred by Sec. 5 of the Factories Act because firstly, Sec. 5 only permits
exemption to be granted to “any factory or class or description of factories”, not blanket
exemption secondly, Sec. 65(2) and not Sec.5 allows exemption of Sections 51, 54, 55 and 56
and thirdly the impugned notifications violate Sec. 59 of the Factories Act, 1948.
12
ARGUMENTS ADVANCED
ISSUE 1 - WHETHER THE NOTIFICATIONS BY THE LABOUR AND

EMPLOYMENT DEPARTMENT IN THE GARB OF INCENTIVIZING ECONOMIC
ACTIVITIES VIOLATES FUNDAMENTAL RIGHTS OF WORKERS?
It is humbly submitted before the Hon’ble Supreme Court of Saurashtra that in the instant case,
the notifications of the Labour and Employment Dept. dated 17th April 2020 and 20th July 2020
are invalid because, [1.1] the impugned notifications pave way to violate the fundamental rights
available to workers and, [1.2] such notifications neglect the vital Directive Principles of State
Policy.
[1.1] The impugned notifications violate Fundamental Rights of workers
i. It is humbly submitted that by suspending most of the vital provisions of the Factories
Act, 1948, the impugned notifications have violated the basic rights available to the
workers. Further, it is contended that the changes will lead to the curtailment of the
basic allowances, like overtime payment, advances etc., basic rights like minimum pay
etc., fixed working hours, and handover immense powers of exploitation in the hands
of the employers.
[1.1.1] The notifications violate the Right to Equality under Article 14 and Rule of Law
ii. It is humbly submitted that Right to Equality is the backbone of Saurashtrian

democracy. “The equal protection of the laws guaranteed under Art. 14 of the
Constitution is a positive right which means right to be treated equally which is the
essence and core of the right to equality, the State is under the obligation to take
necessary steps so that every individual is given equal respect and concern which he is
entitled to as a human being”.1
1
V. N. Shukla, The Constitution of India, (10th Ed., p.37)
13
iii. It is humbly submitted that the impugned notifications violate the Right to Equality of
the workers by creating an unreasonable classification and unequal treatment among
those who are “similarly situated” 2, and hence disrupt the spirit enshrined in the rule of
law.
iv. It is submitted that the phrase “equal protection of laws” means the right to equal
treatment in ‘similar circumstances’ both in privileges conferred and in the liabilities
imposed by the laws. The rule of equality mandates “equality of law among equals”
and “like should be treated alike”. 3 Art. 14 only entitles a difference in treatment when
the classification is ‘reasonable’ i.e., not arbitrary but rational.4 The reasonable
classification should be such as: based on intelligible differentia, and having a rational
nexus to the object sought to be achieved by the legislation in question. 5
v. Your Lordships, the impugned notifications enable the state of Saurashtra to treat its
workers arbitrarily based on an unreasonable classification from those who are not
subject to these notifications. Such a classification neither based on intelligible
differentia nor having reasonable nexus, deprives those workers of their rightful
interests who are subject to the notifications.
[A] The impugned notifications violate Equal Pay for Equal Work
− It is humbly submitted that in Ganesh Razak6 case, the court held that doctrine of equal pay
for equal work envisaged in Art. 39 (d) of the constitution of Saurashtra is exalted to the
position of fundamental right by reading it along with Art. 14. If any classification is made
relating to the pay scales and such classification is unreasonable/or is based on no
classification, then Art. 14 will be attracted.7 The doctrine is as much a part of the equality
of opportunity guaranteed by Art. 16.8
2
Glenrock Estate(P.)Ltd. v. State of T.N., [2010] AIR SCW 6045
3
D. D. Basu, Introduction to the Constitution of India, (22nd Ed., Lexis Nexis, 2015)
4
Pathumma & Ors. v. State of Kerala and Ors., [1978] AIR SC 771
5
Ameeroonissa v. Mehboob [1953] SCR 404, K. Thimmappa v. Chairman, Central Board of Directors SBI, AIR
2001 SC 467, National Council for Teachers Education v. Shri Shyam Shikha Sansthan, [2011] 3 SCC 238
6
Municipal Corporation of Delhi v. Ganesh Razak, [1993] 52 DLT 594
7
Supreme Court Employees Welfare Association v. Union of India, AIR 1990 SC 334, see also, Municipal Council
Latur v. Shivaji Vaijnath Kamble, [1995] (3) BomCR 8
8
Randhir Singh v. Union of India and Ors., [1982] AIR 879; State of Madhya Pradesh v. Pramod Bhartiya, [1993]
AIR SC 286
14
− Furthermore, under Sec. 599, wages for work exceeding the permissible limit of 9 hours per
day would entitle the worker to double the wage rate for the overtime work. But the
impugned notifications state that the wage rate for the overtime hours would be
proportionate to the per hour wage rate given for the regular hours. 10 For e.g., if the wage
rate for working 9 hours is Rs. 90, then the wage rate for working 11 hours would be Rs.
110. Without the notifications, Your Lordships, the wage beyond 9 hours would be double,
so if Rs. 10 is the wage rate per hour, the overtime of 2 hours would imply that Rs. 40
would be earned (2 hours overtime x Rs. 20). In the sum, it would mean that for 11 hours,
the worker would earn Rs. 130.11
− Your Lordships, for the daily wage workers, who are just a step above poverty, this loss of
Rs. 20 would act as a world of difference. Karl Marx’s statement that “The pay of the
common soldier is also reduced to a minimum – determined purely by the production costs
necessary to procure him”, would not be an exaggeration. 12 This reduction of wages is an
exploitation of the worker , and Karl Marx’s theory of surplus-value of labor would apply
here.13
− Your Lordships, while the worker struggles with even getting basic subsistence, the
employers would simply be lining their own pockets with the surplus that should rightly be
distributed with the workers. Hence, it is submitted that in the instant case, the notifications
pave way for a situation where the fundamental rights to equality is being denied by virtue
of the statutory protection for ‘equal pay for equal work’ being nullified.
[B] The impugned notifications are manifestly arbitrary
− It is submitted that in Shayara Bano v. UOI14, legislation was struck down on the ground
that it is manifestly arbitrary. What is manifestly arbitrary is obviously unreasonable and
being contrary to the rule of law, would violate Art. 14. Therefore, it is humbly stated that
the impugned notifications fail to meet the reasonable classification test and disrupts the
right to equality before law which is a correlative to Dicey’s concept of rule of law,
9
Factories Act, 1948
10
Moot Proposition
11
Priyanka Guleria and Madhvi Wadhawan, A critique on the suspension of Labor Laws, Legal Bites, October 2,
2020
12
Ibid
13
Ibid
14
Shayara Bano v. Union of India and Ors. [2017] AIR SC 4609; see also, Nikesh Tarachand Shah v. Union of
India & Anr., [2017] AIR SC 5500
15
necessary for all round evaluation of healthy social order.15 Further, Your Lordships, rule
of law requires that no person should be subjected to harsh, uncivilized and discriminatory
treatment even when the object is securing the paramount exigencies of law and order. 16
− Your Lordships, the task of responsive govt. is to ensure the economic survival of diverse
interest but not by knee jerk reactions, but by thoughtful decisions rooted in equity. In the
instant case, as a result of the notifications, the workers will be put to sheer exploitation in
terms of working hours, wages, health and safety conditions. Therefore, the impugned
notifications are arbitrary and violate the Right to Equality of the workers.
[1.1.2] The notifications violate Right to Life under Art. 21
vi. It is humbly submitted that the impugned notifications deprive the workers of their
Right to Life in an arbitrary manner without due observance of the procedure
established by law.
vii. In the case of Kharak Singh17, it was held that Right to Life includes the right to live
with human dignity which is more than mere animal existence. The court in Bandhua
Mukti Morcha18 held that protection of health and strength of the workers.….ensuring
just and humane conditions of work, etc. are the basic minimum requirements which
enable a person to live with human dignity, is derived from DPSP.19 Therefore, the state
is barred from any action depriving a person from these essentials.20
viii. It is humbly submitted that it was held in Air India Statutory Corporation v. United
Labor Union21, that every action pf public authorities should be guided by public
interest, in exercise of public power, hedged with public element is open to challenge
by the test of reasonableness, fairness and justness. Your Lordships, if the exercise of
power is arbitrary, unjust and unfair, like in the instant matter, the public authority, is
not free to prescribe any unconstitutional conditions or limitation in their actions.
ix. Your Lordships, in the famous Maneka Gandhi22 judgement, the court traced the
triangle between Articles 14, 19 and 21, upholding the applicability of the principle of
15
Dalmia Cement v. Union of India, [1960] AIR SC 143
16
Rubinder Singh v. Union of India, [1982] AIR 879
17
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295; see also, Francis Coraline Mullin v. UT of Delhi,
[1981] AIR SC 756
18
Bandhua Mukti Morcha v. Union of India, [1984] AIR SC 802
19
The Constitution of India, 1949, Article 39 (e) (f), 40, 42
20
Vikram Deo Singh Tomar v. State of Bihar, [1988] AIR SC 1782
21
Air India Statutory Corporation v. United Labor Union, [1997] AIR SC 645
22
Maneka Gandhi v. Union of India, [1978] AIR SC 597, see also, Sunil Batra v. Delhi Admn. AIR 1978 SC 1675
16
reasonableness in all three, and requiring the “procedure established by law” to be right,
just and fair and not arbitrary, fanciful or oppressive, hence confirming to principle of
natural justice and fair play in action. 23
x. Furthermore, the non-compliance of certain labor laws were elevated to be violation of
the Right to Life24, upholding duty of the public authorities to see that the labor laws
are being strictly observed.
[1.1.3] The notifications violate Right against Exploitation under Art. 23
xi. It is humbly submitted that in the light of the above circumstances, the situation of
‘Forced Labour’ is very likely. Art. 2325 prohibits forced labour in whatever form it is
found or existed.
xii. Your Lordships, The Forced Labour Convention, 1930, of which Saurashtra ratifies,
clearly defines ‘forced labour’ as “all work or service which is exacted from any person
under the menace of any penalty and for which the said person has not offered himself
voluntarily”.26 Inculcating the same essence, Art. 23 prohibits, (i) Traffic in human
beings, (ii) Beggar and, (iii) other similar forms of forced labour.27
xiii. In the case of Sanjit Roy vs. State of Rajasthan, 28 the validity of the Rajasthan Famine
Relief Works Employees (exception from labour laws) Act, 1964 was nullified on
grounds that the act mandated lesser wages than the minimum prescribed limit per day
which violates Art. 14 & 23 and, it was held that the word ‘force’ within the Art. 23 has
a very wide meaning. It includes not only physical or legal force but also force arising
from the compulsion of economic circumstances, that is, working for less than the
minimum wage. In furtherance to this objective in Art. 23, the Minimum Wages Act,
1948 had also been enacted, which now lies contravened by the notifications.
[1.2] The impugned notifications violate the Directive Principles of State Policy
23
V. N. Shukla, The Constitution of India, p. 220
24
People’s Union for Democratic Rights and Ors. v. Union of India and Ors., AIR 1982 SC 1473
25
Article 23 – Prohibition of traffic in human beings and forced labour, The Constitution of India, 1949
26
Article 2(1) – The International Forced Labour Convention, 1930
27
PM Bakshi, The Constitution of India, p.91 (14th Ed., 2017)
28
Sanjit Roy vs. State of Rajasthan, [1983] AIR SC 328
17
xiv. It is humbly submitted that the impugned notifications violate the directives enumerated
in Part IV of the Constitution of Saurashtra that enjoin the duty upon the govt. to
establish a healthy socio-economic society and a welfare state. 29
xv. Although directive principles are unenforceable30 in courts, they have been
harmoniously construed with the fundamental rights as the two wheels of a chariot that
may aid to make social and economic democracy a truism.31 Further, it is stated that the
state cannot neglect directive principles with all possible excuses.
xvi. In Olga Tellis v. Bombay Municipal Corporation32, the court upheld the integral nexus
between the right to life, livelihood and work. It was further held that, if there is an
obligation upon the state to secure the right to work and adequate means to livelihood
and any person who is deprived of such rights except according to the procedure
established by law, can challenge the deprivation as a violation of right to life. 33
xvii. Your Lordships, the Factories Act, 1948 is one example in which several DPSPs like
Art. 3834, 3935, 4236 and 4337 got its recognition. Justice Chandrachud held in a
judgement that “suspension of labour laws will be a major violation of fundamental
rights and Directive Principles of the State Policy” 38.
Hence, it is maintained that the impugned notifications by the Labour and Employment
Dept. of the State of Saurashtra are liable to be set aside as violative of the Fundamental
Rights and Directive Principles of State Policy guaranteed by the Constitution to the
workers.
29
D. D. Basu, Introduction to the Constitution of India, (22nd Ed., Lexis Nexis, 2015), p. 163
30
Article 37, The Constitution of India, 1949
31
Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, see also, Jilubhai Nanbhai Kachar v. State of Gujarat,
AIR 1995 SC 142
32
Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors. Etc., [1986] AIR SC 180
33
Ibid, see also, Madhu Kishwar and Ors. v. State of Bihar and Ors., [1996] AIR SC 1864
34
Article 38 – Social, Political and Economic Justice, The Constitution of India, 1949
35
Article 39 – Principles of Policy, The Constitution of India, 1949
36
Article 42 – Securing just and humane work and maternity relief, The Constitution of India, 1949
37
Article 43 – Fair wages and a decent standard of life, The Constitution of India, 1949
38
People’s Union for Democratic Rights v. Union of India and Ors., [1982] 3 SCC 235
18
ISSUE 2 – WHETHER THE ECONOMIC AND FINANCIAL CRISIS CAUSED DUE

TO COVID-19 FALLS WITHIN THE AMBIT OF ‘PUBLIC EMERGENCY’ AS
It is most humbly submitted before this Hon’ble Court that the economic and financial crisis
caused due to COVID-19 pandemic [2.1] does not fall within the ambit of ‘public emergency’
as provided in Sec. 5 of the Factories Act, 1948 and, [2.2] the situation in the present scenario
does not constitute ‘internal disturbance’.
[2.1] The economic and financial crisis caused due to the COVID-19 pandemic does not
fall within the ambit of ‘public emergency’ as provided in Sec. 5 of the Factories Act, 1948
xviii. It is humbly submitted that the existence of ‘public emergency’ is a sine qua non to the
exercise of the power under Sec. 5 of the Factories Act, 1948.
xix. Your Lordships, a situation can qualify as a ‘public emergency’, only if the following
elements are satisfied:
• there must exist a “grave emergency”;
• the security of the State or of any part of its territory must be “threatened” by such
an emergency; and
• the cause of the threat must be war, external aggression or internal disturbance.39
xx. It is submitted that the originating causes of a ‘public emergency’ in Sec. 5 of the
Factories Act are similar to those which Art. 352 of the Saurashtrian Constitution
embodied. Art. 352(1) states that, if the President is satisfied that a grave emergency
exists whereby the security of the state or any part of the territory thereof is threatened,
whether by war or external aggression or internal disturbance, he may, by Proclamation,
make a declaration to that effect. 40
xxi. Your Lordships, the expression ‘internal disturbance’ is covered in Art. 355 of the
Constitution. Art. 355 states that it is the duty of the Union to protect States against
external aggression and internal disturbance. It shall be the duty of the Union to protect
39
Sec. 5, The Factories Act, 1948
40
Art. 352 – Proclamation of Emergency, The Constitution of India, 1949
19
every State against external aggression and internal disturbance and to ensure that the
gov. of every State is carried on in accordance with the provisions of the Constitution.
xxii. Furthermore, Your Lordships, Art. 356 of the Constitution provides for the failure of
constitutional machinery in a state in a situation where the functioning of the State
Government cannot be carried out in accordance with the Constitution.
xxiii. It was held in S R Bommai vs. Union of India 41 that –
“A Proclamation of emergency can be made for internal disturbance only if it is
created by armed rebellion, neither such Proclamation can be made for internal
disturbance caused by any other situation nor a Proclamation can be issued under
Art. 356 unless the internal disturbance gives rise to a situation in which the gov. of
the State cannot be carried on in accordance with the provisions of the Constitution.
A mere internal disturbance short of armed rebellion cannot justify a Proclamation of
emergency under Art. 352 nor such disturbance can justify issuance of Proclamation
under Art. 356 (1), unless it disables or prevents carrying on of the gov. of the State in
accordance with the provisions of the Constitution.”
xxiv. Hence, Your Lordships, in the same light it is contended that in the instant matter, none
of the criterions required for the proclamation of an emergency are fulfilled .
xxv. In addition, this Hon’ble court in the case of Extra-Judicial Execution Victim Families
Association vs Union of Indian42 held that:
“Though an internal disturbance is a cause for concern, it does not threaten the
security of the country or a part thereof unlike an armed rebellion which could pose a
threat to the security of the country or a part thereof. Since the impact of a
Proclamation of Emergency under Art. 352 is rather serious, its invocation is limited
to situations of a threat to the country or a part thereof either through a war or an
external aggression or an armed rebellion, but not an internal disturbance.”
xxvi. Your Lordships, the global pandemic caused by COVID-19 is an unprecedented

situation with which countries all over the world are grappling. The pandemic has
certainly put a severe burden on existing, particularly public health, infrastructure and
has led to a sharp decline in economic activities. However, Your Lordships, it has not
41
S R Bommai vs. Union of India, [1994] 2 SCR 644
42
Extra-Judicial Execution Victim Families Association vs Union of Indian [2016] 14 SCC 578 2
20
affected the security of Saurashtra, or a part of its territory in a manner that disturbs the
peace and integrity of the State. The economic hardships caused as a result of COVID19
certainly pose unprecedented challenges to governance. However, such challenges are
to be resolved by the government within the domain of their functioning under the law.
Unless the threshold of an economic hardship is so extreme that it leads to disruption
of public order and threatens the security of the State or a part of its territory, recourse
cannot be taken to such emergency powers which are to be used sparingly under the
law.43
xxvii. There is no room for any doubt about the fact that the present pandemic situation is in
no way a war or any sort of an external aggression. Nor there is any security threat
posed by the pandemic. Hence, it is contended that there is no public emergency at
present warranting suspension/exempting factories by invocation of Sec. 5 of the
Factories Act.
[2.2] the situation in the present scenario does not constitute ‘internal disturbance’
xxviii. It is humbly submitted that the present situation cannot also be equated with the
expression ‘internal disturbance’. In the explanation of public emergency there are two
scenarios given, namely, war and external aggression. Therefore, going by the principle
of ejusdem generis, the expression ‘internal disturbance’ can only mean a situation like
civil war or a grave law and order issue.
xxix. Your Lordships, the Report of the Sarkaria Commission set up in 1983, while dealing
with the Centre-State Relations44 in connection with Art. 355 noted that:
− The scope of the term ‘internal disturbance’ is wider than ‘domestic violence’. It
conveys the sense of ‘domestic chaos’, which takes the color of a security threat
from its associate expression, ‘external aggression’. Such a chaos could be due to
various causes.
− Natural calamities of unprecedented magnitude such as flood, cyclone, earthquake,
epidemic etc., may paralyze the Gov. of the State and put its security in jeopardy.
xxx. It is submitted that in any event, the Sarkaria Commission clarified that mere financial
exigencies of the State do not qualify as an internal disturbance. 45
43
Gujarat Mazdoor Sabha vs. State of Gujarat, AIR 2020 SC 4601
44
Sarkaria Commission Report, Chapter VI: Emergency Provisions (1988), para 6.3.04
45
Sarkaria Commission Report, Chapter VI: Emergency Provisions (1988), para 6.4.11 (ix)
21
xxxi. In the case on hand, there is no internal disturbance. The inconvenience caused to the
citizens at large and the administration due to the strict lockdown guidelines imposed
by the Gov. as per the Disaster Management Act, 2005 cannot be termed as an internal
disturbance. There is no situation of ‘domestic chaos’ as well. The security of the
Saurashtra is also not threatened. The economic and financial crisis caused by the
pandemic, allegedly the reason for the State to exempt factories from the purview of
the Factories Act, cannot take the colour of “security threat”.
xxxii. Your Lordships, the factories had to shut down, or bring down its operation due to the
lockdown regulations issued by the Gov. The workers cannot be asked to bear the
burden of this action by depriving them of the rights guaranteed to them by the Factories
Act. Mere reduction of production in factories cannot be termed as ‘public emergency’.
xxxiii. The impugned notifications were not issued due to any threat to the security of
Saurashtra or any part of territory of India. In fact, the impugned notifications are issued
under the pretext of dealing with the situation created by the pandemic. Therefore, none
of the reasons stated in the impugned notifications will constitute a ‘public emergency’
as provided in Sec. 5.
It is therefore maintained that the economic and financial crisis caused due to COVID-19
pandemic does not constitute ‘public emergency’ as none of the elements is satisfied as
provided in Sec. 5 of the Factories Act, 1948.
ISSUE 3 – WHETHER THE IMPUGNED NOTIFICATIONS IS ULTRA VIRES OF

THE POWER CONFERRED BY SECTION 5 OF THE FACTORIES ACT, 1948?
It is most humbly submitted before this Hon’ble Court that the impugned notifications are ultra
vires of the power conferred by Sec. 5 of the Factories Act because [3.1] Sec. 5 only permits
exemption to be granted to “any factory or class or description of factories”, not blanket
exemption, [3.2] Sec. 65(2) and not Sec.5 allows exemption of Sections 51, 54, 55 and 56 and
[3.3] the impugned notifications violate Sec. 59 of the Factories Act, 1948.
22
[3.1] Sec. 5 only permits exemption to be granted to “any factory or class or description
of factories”, not blanket exemption
xxxiv. It is humbly submitted that in purporting to issue the impugned notifications under Sec.
5 of the Factories Act, the Gov. of Saurashtra has acted ultra vires its power under the
said section.
xxxv. It is submitted that the impugned notifications of the Saurashtra Labour and
Employment Dept. has been made under Sec. 5 of the Factories Act, 1948. 46
xxxvi. Your Lordships, it is submitted that Sec. 5 only permits a State Gov. to grant exemption
from provisions of the Factories Act, 1948, “in a case of public emergency” and the
same section defines ‘public emergency’ to mean “a grave emergency whereby the
security of Saurashtra or any part of the territory thereof is threatened, whether by war
or external aggression or internal disturbance”. 47 It is thus clear that such an
‘emergency’ only covers emergencies in the nature of physical or tangible war or
conflict.
xxxvii. It is contended that it is clearly beyond the purview of the section to include a global
medical pandemic as an ‘external aggression or internal disturbance’. Further, Your
Lordships, Sec. 5 of the Factories Act, 1948 only permits a State Gov. to grant
exemption (except from Sec.67) to “any factory or class or description of factories”,
whereas the impugned notifications grant a blanket exemption to all the factories
throughout Saurashtra.
xxxviii. It must be noted that not all the factories were out of the supply chain.
Manufacturing factories of pharmaceuticals etc. were running smoothly in the supply
chain. Hence, a blanket notification of exemption to all factories, irrespective of the
manufactured product, while denying overtime to the workers is indicative of the
intention to capitalize in the pandemic and force an already worn-down class of society,
into the chains of servitude.
xxxix. Therefore, the counsels for the Appellant submits that the impugned notifications for
the above-set out reasons is ultra vires the powers granted under Sec. 5 of the Act to
grant exemptions.
46
Moot Proposition
47
Sec. 5, The Factories Act, 1948
23
[3.2] Sec. 65(2) and not Sec. 5 allows exception from sections 51, 54, 55 and 56 under
‘exceptional pressure of work’, which is not the situation in the present case
xl. It is humbly submitted that not Sec. 5 but Sec. 65(2) enables suspension of Sections 51,
54, 55 and 56 to a class of factories owing to ‘exceptional pressure of work’.
xli. Your Lordships, it is further submitted that even this section would not be applicable in
the present scenario, as it only permits exemption to be granted, on such conditions as
the Gov. may deem expedient, from any or all of the adult workers in any factory or
group or class or description of factories from any or all of the provisions of Sec. 51,
52, 54 and 56 of the Act on the ground that the exemption is required to “enable the
factory or factories to deal with an exceptional pressure of work”.48
xlii. It is contended that the present COVID-19 pandemic cannot possibly fall within the
requirement of “enable the factory or factories to deal with an exceptional pressure of
work”. The phrase ‘exceptional pressure of work’ cannot be interpreted to mean
supporting the factories to deal with the restrictions imposed during the lockdown.
xliii. Your Lordships, even otherwise and presuming that it does apply, the impugned
notifications are ultra vires Sec. 65 also. Sec. 65(2) also does not allow blanket
exemption to the factories.
xliv. Furthermore, Your Lordships, Sec. 65(3) lays down a number of conditions for granting
of an exemption. Sec. 65(3)(iii) prohibits the total number of hours of work in any week,
including overtime, from exceeding sixty (Plus the total number of hours of overtime
work in any quarter shall not exceed seventy-five). Thus, a twelve-hour day can only
be done thrice in a week. The impugned notifications provide for up to seventy-two
working hours in a week that is, twelve hours a day, six days a week.
xlv. It is submitted that Sec. 65(2) of the Act does not provide for any exemption being
granted from Sec. 59 of the Act, while the impugned notifications issued under Sec. 5
blatantly overrides this.
[3.3] the impugned notifications violate Sec. 59 of the Factories Act, 1948
48
State of Tripura & Ors. vs. Pramode Debbarma & Ors., 2007 (1) GLT 740, Vasantha R. vs. Union of India
(UOI) & Ors., [2001] IILLJ 843 Mad.
24
xlvi. It is submitted that Sec. 59 prescribes mandatory payment of overtime wages to the
workers at double the ordinary rate of their wages.
xlvii. Sec. 59(1) reads as under:
Where a worker works in a factory for more than nine hours in any day or for more than
forty-eight hours in any week, he shall, in respect of overtime work, be entitled to wages
at the rate twice his ordinary rate of wages.49
xlviii. Your Lordships, the direction for no payment of overtime rate for overtime worked is
completely taking away the measly rights available to a worker who is putting
additional effort after a long day’s work.
xlix. Furthermore, it takes away the incentives workers have for working overtime and is
also a huge financial blow to the workers who are quite literally risking their lives to
ensure the sustenance of the economy.
l. It is also humbly submitted that the purpose of the Factories Act is not to deal with the
economic impact over factories, created by the situations like this pandemic. It was
enacted “to consolidate and amend the law regulating labours in factories” as evident
from the Preamble of the Act itself. Therefore, the gov. cannot invoke Sec. 5 of the
Factories Act in the guise of reviving the industries hit by the pandemic in place at the
cost of the lives of the workers.
Hence, the impugned notifications are ultra vires the power conferred by Sec. 5 off the
Factories Act, 1948 and in blatant violation of some of the most fundamental and
important provisions of the said Act.
49
The Clothing Factory, National Worker’s Union Aradi,, Madras vs. Union of India and Ors., AIR 1990 SC
1383
25
PRAYER
Wherefore in the light of the facts of the case, issues raised, arguments advanced and authorities
cited, the Counsel for the Petitioners humbly pray before this Hon’ble Court as per the
principles of natural justice, equity and good conscience, to kindly:
1. Issue a writ or certiorari and any other writ, order or direction and quash/set aside the
notifications of the Saurashtra Labour and Employment Department dated 17th Apr,
2020 and 20th July, 2020 to be ultra vires the provisions of the Factories Act, 1948 and
unconstitutional as violative of fundamental rights of workers thus void ab initio.
And/or
Pass any other remedy/ ruling that the Hon’ble Court deems fit in the light of justice,
equity and good conscience and for this act of kindness, the Petitioner as in duty bound
shall forever pray.
S/d
Counsels for the Petitioner
26

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7TH SMT.

KASHIBAI NAVALE MOOT COURT COMPETITION, 2021

7TH SMT. KASHIBAI NAVALE MOOT COURT COMPETITION, 2021

BEFORE THE HON’BLE SUPREME COURT OF SAURASHTRA

IN THE MATTER OF:

SAURASHTRA KAMGAR SANGH.……………………………………….PETITIONER

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

MEMORIAL FOR THE PETITIONER

S.NO. HEADING PAGE

II INDEX OF AUTHORITIES 4-7

A ACT AND LEGISLATIONS 4

C LAW DICTIONARIES / LEXICONS 5

E LIST OF CASE LAWS 6

III STATEMENT OF JURISDICTION 8

1. WHETHER THE NOTIFICATIONS BY THE LABOUR AND 13

VII ARGUMENTS ADVANCED 13-25

S. NO ABBREVIATION FULL FORM

2) AIR All India Record

10) Hon’ble Honorable

11) MANU Manupatra

13) Ref. Referred Only

14) SC Supreme Court

15) SCC Supreme Court Cases

16) SCR Supreme Court Reports

17) Ors. Others

19) Vol. Volume

20) W.P. Writ Petition

21) Gau Gauhati

A. ACTS AND LEGISLATION

2) V. N. Shukla, The Constitution of India, (10th Ed., p.37)

3) PM Bakshi, The Constitution of India, p.91 (14th Ed., 2017)

4) Jain, M.P, Indian Constitutional Law, Sixth Edition 2011, WadhwaButterworths,

C. LAW DICTIONARIES/ LEXICONS

D. ONLINE DATABASE REFFERED

F. LIST OF CASES (In order of mention)

S.NO. NAME OF THE CASES WITH CITATION

1) Glenrock Estate(P.)Ltd. v. State of T.N., [2010] AIR SCW 6045

3) Ameeroonissa v. Mehboob [1953] SCR 404

4) K. Thimmappa v. Chairman, Central Board of Directors SBI, AIR 2001 SC 467

7) Supreme Court Employees Welfare Association v. Union of India, AIR 1990 SC

9) Randhir Singh v. Union of India and Ors., [1982] AIR 879

10) State of Madhya Pradesh v. Pramod Bhartiya, [1993] AIR SC 286

13) Dalmia Cement v. Union of India, [1960] AIR SC 143

14) Rubinder Singh v. Union of India, [1982] AIR 879

15) Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295;

16) Francis Coraline Mullin v. UT of Delhi, [1981] AIR SC 756

17) Bandhua Mukti Morcha v. Union of India, [1984] AIR SC 802

20) Maneka Gandhi v. Union of India, [1978] AIR SC 597

21) Sunil Batra v. Delhi Admn. AIR 1978 SC 1675

23) Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789

24) Jilubhai Nanbhai Kachar v. State of Gujarat, AIR 1995 SC 142

27) Sanjit Roy vs. State of Rajasthan, [1983] AIR SC 328

28) S R Bommai vs. Union of India, [1994] 2 SCR 644

Article 32 of the Constitution of Saurashtra

Article 32 of the Constitution of Saurashtra reads as: –

ABOUT SAURASHTRA KAMGAR SANGH

NOTIFICATION BY THE LABOR AND EMLOYMENT DEPARTMENT

FILING OF WRIT PETITION