IN THE COURT OF HON'BLE PRESIDING JUDGE, LABOUR COURT

Case filed seeking an Order under Section 7 of Industrial Disputes Act, 1947

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS

ID Case No. ____of 2022

Trade Union of Thor Industrial Sector Workers…………………………..Petitioner/Plaintiff

v.

Thor Industrial Sector……….………………………………………....Respondent/Defendant

MEMORANDUM ON BEHALF OF THE RESPONDENTS

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

LIST OF ABBREVIATIONS ………………………………………………………3

INDEX OF AUTHORITIES ………………………………………………………. 4

TABLE OF CASES……………………….………………………………………... 5

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

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

STATEMENT OF ISSUES ……………………………………………………….... 8

SUMMARY OF ARGUMENTS ……………………………………………...…… 9

ARGUMENTS ADVANCED ………………………………………………………10

PRAYER……………………………………………………………………………..16
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LIST OF ABBREVIATIONS

ABBREVIATION EXTENSION

& And

§ section

¶ Paragraph

AIR All India Reporter

Anr. Another

Art. Article

ID Industrial Disputes

u/s Under Section

ILR Indian Law Reports

Sec. Section

SCC Supreme Court Cases

S.C. Supreme Court

TIS Thor Industrial Sector

Lab. Labour

TU Trade Union

UOI Union of India

v. Versus

Vol. Volume
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INDEX OF AUTHORITIES

STATUTES REFERRED :

1. Constitution Of India, 1950.

2. Factories Act, 1948.
3. Industrial Dispute Act, 1947.
4. Maternity Benefit Act, 1961.
5. Trade Unions Act, 1926.

BOOKS :

1. S. N. Misra,“Labour & Industrial Laws”,27th Ed. (Rep) 2014.

2. PL Mallick, “Industrial Law”,14th Edn. Eastern Book Company.
3. O.P. Malhotra,“The Law of Industrial Dispute”, Vol. I, 5th Edition, Universal Law
Publishing Co. Pvt. Ltd.
4. Dr. S.R. Myeni,“Labour Laws”,1 st Edn., Asia Law House, Hyderabad.

WEBSITES :

1. www.manupatra.com
2. www.lexis-nexis.com
3. www.westlawindia.com
4. www.scconline.com
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TABLE OF CASES

1. Basant Kumar v. Eagle Rolling Mills, A.I.R. (1964) S.C.1260

2. Prafulla Chandra v. Oil of India, A.I.R (1971) SC 124

3. U.P. State Bridge Corp. Ltd. v. U.P. Rajya Setu Nigam S. Kamchari,(2004) 4 S.C.C.

268

4. Secretary, Minor Irrigation and Rural Engineering Services v. Sahngoo Ram Arya,

(2002) 5 S.C.C. 521

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

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

7. All India Bank Employees Association v. I. T , 1962 AIR 171

8. Kameshwar Prasad v. State of Bihar (1962) , 1962 AIR 1166

9. Mineral Miner Union vs. Kudremukh Iron Ore Co. Ltd , ILR 1988 KAR 2878

10. Syndicate Bank v. K. Umesh Nayak, AIR 1994 SC319

11. Sadual textile Mills v. Their workmen , AIR 1958 Raj 202

12. M/S Burn & Co. Ltd. V, Their Workmen , 1960 AIR 896

13. Rothas Industries v. Its Union, 1976 SCR (3) 12

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STATEMENT OF JURISDICTION

It is most humbly and respectfully submitted that the Petitioner has approached this Hon’ble
Labour Court under Section 7 of Industrial Disputes Act,19471 and accepts that this Hon’ble
court has the inherent jurisdiction, power and authority to try, entertain and dispose off the
present petitions clubbed together. The petitioner sets forth the facts and laws on which the
claims are based.

1
The appropriate Government may, by notification in the Official Gazette, constitute one or more Labour Courts for
the adjudication of industrial disputes relating to any matter specified in the Second Schedule and for performing
such other functions as may be assigned to them under this Act.
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STATEMENT OF FACTS

1. Zara, a citizen of Estancia who is married to Altaf, is working in Thor Industrial

Sector for 39 Months

2. On 20th February 2022. Her SupervisorHeavy Work assigned by the supervisor to

which she refused stating she is pregnant.

3. Zara, feeling tired, went to the dispensary where she was advised by the doctor to

either take some painkillers or rest for an hour. (knowing the fact that she was

pregnant)

4. While she left for home, felt unbearable pain due to which her husband and Father in

law took her to the hospital. By then the process of miscarriage already started and she

lost the child due to threatened abortion. The reason for such abortion found out to be

lifting of heavy bags and coupled effect of the pills.

5. This was her second miscarriage, after she regained health.

6. Zara was replaced and was not paid any of her dues leading to the strike by the

registered trade union.

7. The negotiations failed and a lockout was declared. The union members got agitated

on finding that non maintenance of standards in the factory led to the miscarriage and

revolted outside supervisor's house in response to which supervisor lathi charged the

workers with the help of bouncers.

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STATEMENT OF ISSUES

1. Whether the present suit filed by the trade union and the countersuit filed by Thor

Industrial Sector are maintainable ?

2. Whether the strike done by the Trade Union is legal or not ?

3. Whether the Thor Industry followed the standards which are set for the workers by the

Labour acts ?
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SUMMARY OF ARGUMENTS

1. Whether the present suit filed by the trade union and the countersuit filed by Thor

Industrial Sector are maintainable ?

The Counter suit filed by Trade Union is not maintainable as the strike held by Trade union is

justified. Trade union complied with all the provisions of the Industrial Tribunal Act, thus its

suit shall be upheld as Maintainable but the counter suit of Industry is not maintainable.

2. Whether the strike done by the Trade Union is legal or not ?

The strike done by the Trade Union is illegal as the company is a part of Public utility services

of the State where no laws are binding on the part of TU.

3. Whether the Thor Industry followed the standards which are set for the workers by

the Labour acts ?

It is humbly submitted before this Hon’ble High Court that there is no violation of statutory
laws by the Thor Industrial Sector.
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ARGUMENTS ADVANCED

1. Whether the present suit filed by the trade union and the countersuit filed by Thor

Industrial Sector are maintainable ?

It is most humbly submitted before this Hon’ble High Court that the suit filed by Trade Union
is not maintainable. For adjusting of labor disputes, recourse should be given to the machinery
provided under the Industrial Disputes Act, 1947 2.

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 3.

In the present case, TU without first going to the alternative remedy provided under section 7
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 up4.

In Thansingh Nathmal And Ors v. A. Mazid, Superintendent Taxes, the Apex Court adverted to
the rule of self-imposed restraint that the writ petition will not be entertained if an effective

2
Basant Kumar v. Eagle Rolling Mills, A.I.R. (1964) S.C.1260; Prafulla Chandra v. Oil of India, A.I.R (1971)
Sangh, (2004) 4 S.C.C. 268. Ass 9; U.P. State Bridge Corp. Ltd. v. U.P. Rajya Setu Nigam S. Kamchari,(2004) 4
S.C.C. 268
3
Secretary, Minor Irrigation and Rural Engineering Services v. Sahngoo Ram Arya, (2002) 5 S.C.C. 521
4
All India Lawyers Forum for Civil Liberties v. Union of India, (1999) 5 S.C.C. 714.
 11

remedy is available to the aggrieved person. In Titaghur Paper Mills Co.Ltd. v. State of Orissa,
Apex Court observed that “It is now well recognised that where 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 adequately5.

In Wolverhampton New Waterworks Co. v. Hawkesford, it was held that the remedy provided
by the statute must be followed. In Nivedita Sharma v. Cellular Operators Assn. of India, this
Court has held that where hierarchy of appeals is provided by the statute, the party must
exhaust the statutory remedies before resorting to writ jurisdiction for relief. So here the
respondents cannot invoke the jurisdiction of Hon’ble High Court.

Article 226 of the Constitution of India permits the issue of orders, directions or writs to any
person or authority including any person or authority including in appropriate cases any
government. Article 226 also takes into its ambit the power to issue writs inter alia to any
authority. In the case of Rajasthan Electricity Board it was for the first time that an Electricity
Board was regarded as other authorities within the meaning of State under Article 12 of the
Constitution. However after the judgment given in the International Airports Authority Case it
has widened the term other authorities even further which includes authorities created by a
statute even if the power was conferred for the purpose to carry out commercial activities.

In the case of Sukhdev Singh vs. Bhagatram , the Apex Court held that Natural Gas
Commission, Life Insurance Corporation, Finance Corporation are authorities within the
meaning of Article 12 and further observed that power to make rules and regulations and to
administer and enforce them is deemed to be the elements of authority contemplated within the
meaning of Article 12. At present, it has also been stated that even private institutions
discharging public functions have also come up to be regarded as state and such public
corporations too are deemed to be instrumentality of the state.

5
State of Uttar Pradesh v. Labh Chand, (1993) 1 S.C.R. 878.
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Constitutions as stated above, are not directly enforceable against private persons, and require
the state to pass ordinary laws to create offenses that in turn are enforceable against private
persons. The unenforceability of fundamental rights vis-a-vis private persons do not in any
way depreciate the applicability of rights, but merely provides for a different mechanism to
enforce rights, i.e., through ordinary laws. Moreover, the compulsion of courts to bring an
entity within the definition of 'state' under Article 12 of the Constitution, reiterates that
fundamental rights are only enforceable against the state.

2. Whether the strike done by the Trade Union is legal or not ?

The right to strike in the Indian constitution set up is not an absolute right. In India , right to
protest is a fundamental right under Article 19 of the Constitution of India but right to Strike is
not a fundamental right but a Legal Right and with this right statutory restrictions is attached in
the industrial dispute act , 1947. As every other fundamental right is subject to reasonable
restrictions, the same is also the case to form trade unions to give a call to the workers to go on
strike and the state can impose reasonable restrictions. In the All India Bank Employees
Association v. I. T6., the Supreme Court held,
"the right to strike or right to declare lock out may be controlled or restricted by appropriate
industrial legislation and the validity of such legislation would have to be tested not with
reference to the criteria laid down in clause (4) of article 19”

From this case we came to know that the right to strike cannot be said to be a part of Article
19(1)(c) of the Constitution. Thus, there is a guaranteed fundamental right to form association
or Labour unions but there is no fundamental right to go on strike. Any form of strike is illegal,
as the strike is not expressly recognized in the Constitution of India. Even as early as 1961, the
Supreme Court had held in Kameshwar Prasad v. State of Bihar (1962)7 that even a very
liberal interpretation of article 19 (1) (c) could not lead to the conclusion that the trade unions
have a guaranteed fundamental right to strike.

6
All India Bank Employees Association v. I. T , 1962 AIR 171
7
Kameshwar Prasad v. State of Bihar (1962) , 1962 AIR 1166
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The counsel for the defendant humbly submits that in the first schedule of industrial disputes
act the public utility services have clearly mentioned and those also includes food industry.
Subsection 1 is applicable to the workmen employed in public utility services and lays down
that "no person employed in a public utility service shall go on without following below said
steps”

1. Notice of strike (with or without the date of strike) to the employer by

the employees is mandatory.
2. If the date of strike by the employees is not mentioned in the notice such
notice is valid for six weeks only.
3. If the date of strike is mentioned in the notice, the date of strike should
not be before the expiry of 14 days from the date of notice of strike
according to the clause (b).
4. Therefore employees should not go on strike before the expiry of 14 days
from the date of issue of notice of strike to the employer.
5. Notice of strike without the date of strike is valid for six weeks only, if
employees do not go on strike within six weeks, again a fresh notice of
strike by employees is necessary if they want to go on strike.
6. Employees should not go on strike during the pendency of any
conciliation proceedings before a conciliation officer and seven days after
the conclusion of such proceedings.
​
The clauses 'a' and 'b' appearing in sub-section (1) of Section 22 are significantly incorporated
to prohibit the workmen from going on strike without giving a minimum of 14 days' notice to
the employer

As per the Industrial Disputes Act, 1947, no person employed in a public utility service shall
go on strike in breach of contract without giving a notice to the employer. Any strike resorted
to, without giving notice within 6 weeks before striking and during 14 days of giving such
notice or before the expiry of the date of strike specified in such notice, will be illegal. Any
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strike resorted to, in contravention of these provisions, will be held illegal and the workers
participating in such a strike will not be entitled to any payment for the period of strike.

In mineral Miner Union vs. Kudremukh Iron Ore Co. Ltd8., it was held that the provisions of
section 22 are mandatory and the date on which the workmen proposed to go on strike should
be specified in the notice. In the case of Syndicate Bank v. K. Umesh Nayak 9 Supreme Court
held that if the strike is illegal then the employer has the right to take action against the
workers or employees who had taken part in the strike. In Sadual textile Mills v. Their
workmen 10the certain workmen struck work as a protest against the lay-off and the transfer of
some workmen from one shift to another without giving four days notice as required by
standing order 23 The industrial tribunal answered in affirmative. Against this a writ petition
was preferred in the High Court of Rajasthen. Reversing the decision of the Tribunal Justice
Wanchoo observed:
" ....We are of opinion that what is generally known as a lightning strike like this take place
without notice..... And each worker striking ......(is) guilty of misconduct under the standing
orders ........and liable to be summarily dismissed.....(as)..... strike cannot be justified at all. "

In M/S Burn & Co. Ltd. V, Their Workmen11 , it was laid down that mere participation in the
strike would not justify suspension or dismissal of workmen. Where the strike was illegal the
Supreme Court held that in case of illegal strike the only question of practical importance
would be the quantum or kind of punishment. To decide the quantum of punishment a clear
distinction has to be made between violent strikers and peaceful strikers. Right to employer to
12
compensate for loss cases through illegal strikes. In Rothas Industries v. Its Union , the
Supreme Court held that the remedy for illegal strike has to be sought exclusively in section 26
of the Act. The award granting compensation to employer for loss of business though illegal
strike is illegal because such compensation is not a dispute within the meaning of section 2(k)
of the Act.

8
Mineral Miner Union vs. Kudremukh Iron Ore Co. Ltd , ILR 1988 KAR 2878
9
Syndicate Bank v. K. Umesh Nayak, AIR 1994 SC319
10
Sadual textile Mills v. Their workmen , AIR 1958 Raj 202
11
M/S Burn & Co. Ltd. V, Their Workmen , 1960 AIR 896
12
Rothas Industries v. Its Union, 1976 SCR (3) 12
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3. Whether the Thor Industry followed the standards which are set for the workers by

the Labour acts ?

It is humbly submitted before this Hon’ble High Court that there is no violation of statutory
laws by the Thor Industrial Sector. Eligibility for Maternity Benefit Act, 1961 Section 5 of the
aforesaid Act states the Right to payment of maternity benefit 13 Clause (2) of which reads,
“No woman shall be entitled to maternity benefit unless she has actually worked in an
establishment of the employer from whom she claims maternity benefit for a period of not less
than one hundred and sixty days in the twelve months immediately preceding the date of her
expected delivery...” Based on the above provision, a woman who worked not less than one
hundred and sixty days immediately preceding her leave shall be entitled to the benefits under
this Act. Here in the present case, Zara did not fulfil the basic eligibility criteria as she was
irregular for work without giving reasonable notice.

Statutory working conditions were followed by Thor Industrial Sector. Thor Industrial Sector
was equipped with a medical dispensary as mandated under Section 45 of the Factories Act,
1948. The doctor, in the present case had given Zara, the option of either resting for an hour
or taking pain killers. Keeping in mind that she was pregnant, he gave painkillers which were
not detrimental for her health and the health of the fetus. There are safe painkillers that are
available for subsiding the pain which were prescribed by him. And it cannot be alleged that
the miscarriage happened because of the painkillers that were taken by her. The doctor
prescribed the pain killers in bona-fide intention. She chose to do the work instead of taking a
rest for an hour.

Mala-fide intention on behalf of Trade Union. In the case of Syndicate Bank & Anr vs K.
Umesh Nayak & Ors, the Hon’ble Supreme Court held that, Stoppage of work in any manner
is not economically feasible to the industry. Here, the trade union went on a strike that was
solely based on an individual dispute. They had a mala-fide intention to do so. If the workmen
of the industry go on a strike, it is not only detrimental to the production of the industry but
also to the society.
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PRAYER FOR RELIEF

In light of the of the case, the issues raised, arguments advanced and authorities cited, the
counsel on behalf of the Defendant humbly pray before the Labour Court to kindly adjudge
and declare that:

1. The present suit filed by the trade union is not maintainable and the countersuit

filed by Thor Industrial Sector is maintainable.

2. The strike done by the Trade Union is illegal and held the lockout of TIS to be

legal.

3. The Thor Industry succeeded in adopting standards which are set for the workers

by the Labour acts.

AND/OR

Pass any other order which the bench deems fit in the best interest of Justice, Equity and
Good Conscience, and for this act of kindness the Counsels on behalf of the Defendant as in
duty bound shall forever pray.

All of which is respectfully submitted by

——————————————.
Sd/-

Counsels for Defendant.