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In The Honorable Supreme Court of Estancia: Case Filed Seeking An Order Under Article 226 of The Constitution of ESTANCIA
In The Honorable Supreme Court of Estancia: Case Filed Seeking An Order Under Article 226 of The Constitution of ESTANCIA
Case filed seeking an Order under Article 226 of the Constitution of ESTANCIA
v.
Poonkudil industry ………………………. Respondent
Most respectfully submitted before the Hon’ble Chief Justice and companion
Judges of Supreme Court of Estancia
INDEX OF AUTHORITIES………………………………………………………… 3
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
ABBREVIATION EXTENSION
NO. Number
ART Article
IDA Industrial disputes act,1947
Ed Edition
Hon’ble Honurable
No Number
Sec Section
Vol Volume
SC Supreme court
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.
(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
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.
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.