BEFORE THE HON'BLE

COURT OF ESTANCIA

DISPUTE RELATING TO

In the matter of
TRADE UNION ........................................ PETITIONER
V.
THOR INDUSTRY ...........................….... RESPONDENT

UPON SUBMISSION TO THE HON'BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF THE HIGH COURT OF INDIA

MEMORANDUM ON BEHALF OF THE PETITIONER

 TABLE OF CONTENTS :

Table of Contents 1

List of Abbreviations2

Index of Authorities3

Statement of Jurisdiction

Synopsis of Facts

Summary of Arguments Arguments Advanced

:
1. Whether the petition filed by the trade union is maintainable or not ?

2. Whether Article 21 of the trade union is violated or not ?

3. Whether THOR INDUSTRYis liable to pay compensation for the miscarriage of child of
ZARA ?

Prayer
LIST OF ABBREVIATIONS:
 INDEX OF AUTHORITIES

BOOKS REFERRED:

1. INDIAN CONSTITUTIONAL LAW:

i. JAIN M.P, INDIAN CONSTITUTIONAL LAW (6t h ed. 2010).
ii. BASU D.D, COMMENTARY ON CONSTITUTION OF INDIA (8t h ed. 2009).
iii. PANDEY J.N, THE CONSTITUTIONAL LAW OF INDIA (49t hed. 2012).
iv. BAKSHI P.M, THE CONSTITUTION OF INDIA (11t hed. 2011).
v. SHUKLA V.N, CONSTITUTION OF INDIA (11t hed. 2012).

2. LAW OF EVIDENCE:
i. AVTAR SINGH, PRINCIPLES OF THE LAW OF EVIDENCE (19t hed. 2011).
ii. PRASAD B.M& MANISH MOHAN, LAW OF EVIDENCE (19t hed. 2010).
iii. DINKAR V.R, SCIENTIFIC EXPERT EVIDENCE (4t h ed. 2013).
iv. NANDI A.K, INDIAN EVIDENCE ACT, 1872 (6t h ed. 2010).

3. LAW RELATING TO WOMEN AND CHILDREN:

i. MAMTA RAO, LAW RELATING TO WOMEN & CHILDREN (7t h ed. 2015).
ii. ANJANI KANT, LAW RELATING TO WOMEN & CHILDREN (3r d ed. 2012).
STATUTES REFERRED:

i. THE CONSTITUTION OF INDIA, 1950

ii. THE SPECIAL MARRIAGE ACT, 1954
iii. DOMESTIC VIOLENCE ACT, 2005
iv. HINDU MARRIAGE ACT, 1954
v. CHRISTIAN MARRIAGE ACT, 1872
vi. INDIAN DIVORCE ACT, 1869

CASES REFERRED:

1. TISCO Ltd v. Workmen

2. T.K. Rangarajan v Government of Tamil Nadu
3. General Labour Unlon (Red Flag) v/s B. V. Chavan And Ors
4. Kingfisher Airlines
5. Mewa Ram v. A.I.I. Medical Science
6. State of Orissa v. Balaram Sahu

WEBSITES REFERRED:

i. www.indiankanoon.com

ii. www.legalservicesindia.com

iii. www.legalblog.in

iv. www.judis.nic.in

v. www.lawyersclubindia.com

vi. www.menrightsindia.net

vii. www.mphc.in
 STATEMENT OF JURISDICTION

THE PETITIONER HAVE THE HONOR TO SUBMIT BEFORE THIS HON’BLE COURT THE
MEMORANDUM FOR THE PETITIONER IN THE CASE OF VIOLATION OF
ARTICLE21OF2018FILEDBYTRADEUNIONUNDERARTICLE226OFTHE CONSTITUTION
OF INDIA IN THE MATTER CONCERNING GROSS MISCARRIAGE OF JUSTICE.

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
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any
other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without
(a) furnishing to such party copies of such petition and all documents in support of the plea for
such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the
vacation of such order and furnishes a copy of such application to the party in whose favour such
order has been made or the counsel of such party, the High Court shall dispose of the application
within a period of two weeks from the date on which it is received or from the date on which the
copy of such application is so furnished, whichever is later, or where the High Court is closed on
the last day of that period, before the expiry of the next day afterwards on which the High Court is
open; and if the application is not so disposed of, the interim order shall, on the expiry of that
period, or, as the case may be, the expiry of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the power
conferred on the Supreme court by clause ( 2 ) of Article 32

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND

ARGUMENTS IN THE PRESENT CASE.

SYNOPSIS OF FACTS

1. Zara, the citizen of Estancia in the country Asiana, married to Altaf was working in Thor
Industrial Sector as a laborer for the 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 a family way (three months pregnant) 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 2 on 15th March 2022, her supervisor informed her that she had been replaced and her
services were not required anymore. 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 of Mr. Arushi Iyer and even broke the windows
of his office. Arushi Iyer was provoked by this and 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 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. 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 Thor Industry will be Respondents.
 SUMMARY OF ARGUMENTS

1.WHETHER THE PETITION FILED BY TRADE UNION IS MAINTAINABLE OR NOT

?

Yes, the petition filed by the trade union before the Hon’ble high Court is maintainable. The
grounds on which the petition was filed by the petitioner under this instant case. Since there is
gross miscarriage of justice and substantial question of law is present in this case.

2.WHETHER THE ARTICLE 21 OF THE TRADE UNION IS VIOLATED OR NOT?

Yes, the article 21 of the trade union is violated because there is no proper response from the
industrial sector. So their rights are violated .

3. WHETHER THOR INDUSTRY IS LIABLE TO PAY COMPENSATION FOR THE

MISCARRIAGE OF CHILD OF ZARA?

Yes, the THOR INDUSTRYis liable to pay compensation for the miscarriage of child of ZARA.
The facts clearly state that ZARA has requested the supervisor to assign her some other because
she was not able to do the work which was assigned to her due her family way (2 months
pregnant).The supervisor.The supervisor ordered her to do so or else she will be removed from the
job.she don’t have any other alternative so she have decided to execute the same.
 ARGUMENTS ADVANCED

1.WHETHER THE PETITION FILED BY TRADE UNION IS MAINTAINABLE OR NOT

?

Yes , the petition filed by the trade union before the Hon’ble high Court is maintainable. The
grounds on which the petition was filed by the petitioner under this instant case. Since there is
gross miscarriage of justice and substantial question of law is present in this case. Because the
industrial trade union conducted a silent strike on the premises of the factory and a lockout was
eventually done by the management .

Article 19 (1)(c)-To form associations or unions [cooperative societies] and to strike peacefully.

Article 19(4):Nothing in sub clause (c) of the said clause shall affect the operation of any existing
law in so far as it imposes, or prevent the State from making any law imposing, in the interests of
the sovereignty and integrity of India or public order or morality, reasonable restrictions on the
exercise of the right conferred by the said sub clause and the strike undertaken under said
sub-clause shall be reasonable and brought in notice to the employer.

After the enactment of the Industrial Disputes Act in 1947, the right to strike was recognized in
India as a statutory right. Section 22(1)(a) of the Act states that employees can go for the strike in
case of breach of contract provided a prior notice is given to the employer within 6 weeks of such
strike. It also includes government employees. The said right is not freely given in the statute.
There are certain conditions, which only if satisfied can the workers go on strike. The right is an
important weapon in the hands of workers for seeking redressal and safeguarding their liberties.
There was a general presumption that the employer is always in a dominating position and there
may be the chance of him imposing cruel terms and conditions of service on the employees. So, the
need was a tool for collective bargaining. As the Supreme Court has said that good relations
between employer and employee and collective bargaining are the essential objectives of Industrial
Disputes Act, 1947.Article 19(1)(c) gives the right to form association and trade unions. If there is
no right to strike, the right to form associations will be hollow. Then why is such a right given in
the first place. The Indian judiciary through the series of judicial decisions emphasized on the
legality or illegality of strike, but didn’t impose a ban on the right to strike. The Apex Court held
that the membership of the trade union if sufficient is able to bargain. But such bargaining power is
highly reduced when no right to strike is given to the workers.
Right to strike is a very important tool in the hands of workers. It helps the workers to negotiate for
a better working environment and proper wages etc. Right to strike is the very essence of collective
bargaining.
Section 22(1)(a) provides various conditions to be satisfied before going for such strike. The
Supreme Court has said that workers have the right to go on peaceful strike. But the demands they
claim should be legitimate. Justice Krishna Iyer and PN Bhagwati in a case held that strike can be
illegal or legal one and even the illegal strike can sometimes be justified. It is the principle of social
justice and well recognized by industrial jurisprudence. It is available to the employees as their
legal right also and they can go for the peaceful strike to negotiate for their demands with the
employer. Collective bargaining and the right to strike go hand in hand. The Industrial Disputes Act
has differentiated between legal and illegal strikes. So, it can be said that upon compliance of all
requirements as mentioned in §22 and 23, a strike can be a legal and justified one.
Although it has been given importance by the foreign nations and international laws, India still
hasn’t provided fundamental status to this right. The judiciary has failed to consider the dynamic
structure and evolution of the right to strike.
Right to strike is very important in modern economic transactions. It is the ultimate weapon in the
hands of the workers to get their demands satisfied from the employer.
Giving fundamental States the right to strike will not only improve the economic structure of the
country but will also improve the economic well-being of workers, proper wages, health and
hygiene etc. In the modern civilized world, the right to strike should be an inalienable and inherent
right to be given to the workers.
In Lakshmi Devi Sugar Mills Ltd. v. Ram Sarup, it was held that in case of lockout there is
neither alteration to the prejudice of workmen of the conditions of the service application to them
nor a discharge or punishment whether by dismissal or otherwise.
Punjab National Bank v. All India Punjab National Bank Employees’ Federation held that a
pen-down strike would be covered within Section 2(q) because here the workmen do enter the
premises but refuse to take on their usual work, and refusal to continue to work as a part of a
common understanding would constitute a strike.
2.WHETHER THE ARTICLE 21 OF THE TRADE UNION IS VIOLATED OR NOT?

Yes, the article 21 of the trade union is violated because . So their right is violated. Because Mr.
Abhinanth appointed a bouncer and made lathi charge and ZARA was removed from work and she
was replaced .She was informed that she has been replaced and she was not paid any dues.

Article 21:

“No person shall be deprived of his life or personal liberty except according to a procedure
established by law.”Everyone has the right to life, liberty and the security of a person.’ The right to
life is undoubtedly the most fundamental of all rights. All other rights add quality to the life in
question and depend on the pre-existence of life itself for their operation. As human rights can only
attach to living beings, one might expect the right to life itself to be in some sense primary, since
none of the other rights would have any value or utility without it. There would have been no
Fundamental Rights worth mentioning if Article 21 had been interpreted in its original sense. This
Section will examine the right to life as interpreted and applied by the Supreme Court of India.

● The fundamental right provided by Article 21 is one of the most important rights that the
Constitution guarantees.
● The Supreme Court of India has described this right as the ‘heart of fundamental rights’.
● The right specifically mentions that no person shall be deprived of life and liberty except as per
the procedure established by law. This implies that this right has been provided against the State
only. State here includes not just the government, but also, government departments, local bodies,
the Legislatures, etc.
● Any private individual encroaching on these rights of another individual does not amount to a
violation of Article 21. The remedy for the victim, in this case, would be under Article 226 or
under general law.
● The right to life is not just about the right to survive. It also entails being able to live a complete
life of dignity and meaning.
● The chief goal of Article 21 is that when the right to life or liberty of a person is taken away by
the State, it should only be according to the prescribed procedure of law.
Right to life is fundamental to our very existence without which we cannot live as a human being
and includes all those aspects of life, which go to make a man’s life meaningful, complete, and
worth living. It is the only article in the Constitution that has received the widest possible
interpretation. Under the canopy of Article 21, so many rights have found shelter, growth, and
nourishment. Thus, the bare necessities, minimum and basic requirements that are essential and
unavoidable for a person is the core concept of the right to life.

In Chandra Raja Kumar v. Police Commissioner Hyderabad,it has been held that the right to
life includes right to live with human dignity and decency and, therefore, holding of beauty contest
is repugnant to dignity or decency of women and offends Article 21 of the Constitution only if the
same is grossly indecent, scurrilous, obscene or intended for blackmailing. The government is
empowered to prohibit the contest as objectionable performance under Section 3 of the Andhra
Pradesh Objectionable Performances Prohibition Act, 1956.

In the case of Kharak Singh v. State of ESTANCIA,the Supreme Court quoted and held that:By
the term “life” as used here, something more is meant than mere animal existence. The inhibition
against its deprivation extends to all those limbs and faculties by which life is enjoyed. The
provision equally prohibits the mutilation of the body by amputation of an armored leg or the
pulling out of an eye, or the destruction of any other organ of the body through which the soul
communicates with the outer world.

In Sunil Batra v. Delhi Administration,the Supreme Court reiterated with the approval the above
observations and held that the “right to life” included the right to lead a healthy life so as to enjoy
all faculties of the human body in their prime conditions. It would even include the right to
protection of a person’s tradition, culture, heritage and all that gives meaning to a man’s life. It
includes the right to live in peace, to sleep in peace and the right to repose and health.
3.WHETHER THOR INDUSTRYIS LIABLE TO PAY COMPENSATION FOR THE
MISCARRIAGE OF CHILD OF ZARA?

Yes, the THOR INDUSTRYis liable to pay compensation for the miscarriage of child of ZARA.
The facts clearly state that ZARA has requested the supervisor to assign her some other because
she was not able to do the work which was assigned to her due her family way (2 months
pregnant).The supervisor ordered her to do so or else she will be removed from the job.she don’t
have any other alternative so she have decided to execute the same.

Section 3(j) miscarriage" means expulsion of the contents of a pregnant uterus at any period prior
to or during the twenty-sixth week of pregnancy but does not include any miscarriage, the causing
of which is punishable under the Indian Penal Code (45 of 1860).

Exemption from strenuous work: If a woman requests to do so, the employer must, for a certain
period of time, exempt her from engaging in any strenuous, arduous, tiring, or lengthy activity that
may affect her wellbeing and maternity health .Section 4(3). Such periods include:

● the period of one month immediately before the date of her expected delivery;
● any period during the said period of six weeks for which the pregnant woman does not avail of
leave of absence under Section 6 of the Act.

Dismissal during absence: No employer can dismiss, discharge, or fire a woman during the period
of absence as taken in accordance with the provisions of the Act. If she is discharged and dismissed
at the time wherein she would have been applicable for the maternity benefit, such benefit would
still be applicable to her. If in case such an employer does deprive women of the maternity benefit,
such women have a remedy, by appealing to a prescribed authority, whose say in the matter is final.
[Section 12]

Right to leave in case of miscarriage/abortion: A woman who has suffered a miscarriage or

underwent the medical termination of her pregnancy has a right to ask for a paid leave at the rate of
maternity benefit, on the production of evidence of such happening for a period of 6 [six] weeks
immediately after the day of such happening.
Maternity Benefit: Sections 5, 6, and 7 provide for the right that women have to receive maternity
benefit from their employers. In accordance with Section 5(2), a woman can only claim maternity
benefit from an employer after completing a minimum period of 80 [eighty] days in the
employment of the establishment from whom such benefit is being claimed, in the twelve months
immediately preceding the date of her expected delivery. Such benefit is available to any woman
working in the employment of the establishment, irrespective of the contract she has with the
establishment.The Maternity Benefit Act originally provided maternity benefit of 12 weeks, out of
which up to six weeks could be claimed before delivery. In 2017, the law was amended to extend
the period to 26 weeks. Out of the 26 weeks, up to eight weeks can be claimed before delivery.
This was laid down in Municipal Corporation of Delhi vs. Female Workers (Muster Roll) &
Anr. In this case, the Municipal Corporation of Delhi granted maternity benefits only to the regular
female workers, and denied it to female workers on the muster roll, and not regularized.
The Court held that in accordance with Articles 14 and 15 of the Constitution “labor to whichever
sector it may belong in a particular region and in a particular industry will be treated on an equal
basis.” (Hindustan Antibiotics Ltd. v. Workmen (1967). Thus, it was held that all women shall be
entitled to receive maternity benefits from the establishment.

PRAYER

In the light of facts stated, issues raised, arguments advanced and authorities cited, the petitioner
humbly submit that this Hon’ble Court may be pleased to declare the following:
1. The petition filed by the trade union is maintainable .
2. Article 21 of the trade union is violated .
3. THOR INDUSTRYis liable to pay compensation for the miscarriage of child of
ZARA.
AND /OR

Pass any other order as the Hon’ble Court deems fit in the interest of equity, justice, fair play and
good conscience.
All of which is humbly prayed.

(Counsel on behalf of Petitioner)