TC- 6

SAVEETHA SCHOOL OF LAW MULTI MOOT 2022

BEFORE HON’BLE HIGH COURT OF ESTANCIA

W.P.(CIVIL)No…………./2022
Writ Petition filed under Article 226 of Constitution of Republic of Asiana

IN THE MATTER BETWEEN

TRADE UNION (PETITIONER)

V.
THOR INDUSTRIAL SECTOR (RESPONDENTS)

MOST REVERENTLY SUBMITTED BEFORE THE HON’BLE CHIEF JUSTICE AND

HIS OTHER COMPANION JUDGES OF THE HIGH COURT OF ESTANCIA

COUNSEL ON BEHALF OF THE PETITIONER

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 TABLE OF CONTENTS

Table of Contents…………………………………………….………………………………1
List of abbreviations..………….…………………………….………………………………2
Index of Authority...………………………………………….………………………………3
Statement of Jurisdiction ……………………...…………….………………………………6
Statement of facts………………………………………………………………………….…7
Issues raised…………………………………………………………………………………..9
Summary of Arguments…..………………………………….……………………………..10
Arguments Advanced……………………………………………………………………….11
1. Whether the petition filed before the Hon'ble High Court of Estancia is
maintainable?.............................................................................................................11
2. Whether there has been any violation of standards set for the workers in the
industry?.....................................................................................................................15
3. Whether the act of strike by workers & the lock out to counter is
justifiable?...................................................................................................................19
4. Prayer………………………………………………………………………………..23

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 LIST OF ABREVIATIONS

& And

AIR All India Reporter

Anr. Another

Cl. Clause

Edn. Edition

Ors. Others

P. Page

Pp. Pages

v./ vs. Versus

Vol. Volume

SC Supreme Court

SCC Supreme Court Cases

Hon’ble Honorable

Sec. Section

Co. Company

Pvt. Private

LLJ Labour Law Journal

UoI Union of Indian

HC High Court

Art. Article

Sec. Section

2
 INDEX OF AUTHORITY

STATUTES REFERRED:

1. Industrial Disputes Act, 1947

2. Factories Act, 1948
3. Maternity Benefit Act, 1961
4. Trade Unions Act, 1926
5. Indian Penal Code, 1860
6. Criminal Procedural Code, 1973
7. Private Security Agency Regulation Act, 2005
8. Payment of Wages Act, 1936
9. Employee Compensation Act, 1923
10. Industrial Employment (Standing Orders) Act, 1946
11. The Employees’ State Insurance Act, 1948

LIST OF BOOKS REFERRED:

1. P M Bakshi , the constitution of india (18th ed.,2022)

2. V.N Shukla, the constitution of india (13th ed., 2019)
3. S.N.Misra, labour & industrial laws (29th ed., 2019)
4. H.L.Kumar, case law referencer 2007 to 2016 on labour and Industrial law (10th ed., 2016)
5. Dr. V.G. Goswami, labour & industrial laws (11th ed., 2019)
6. K.M.Pillai, labour & industrial law (16th ed., 2015)
7. S.C.Srivastava, industrial relations and labour laws (7th Ed.,2002)

WEBSITES REFERRED:

i. www. kanoon.com
ii. www.legalservicesindia.com
iii. www.legalblog.in
iv. www.judis.nic.in
v. www.lawyersclubindia.com
vi. www.lawctopus.com
vii. www.legalindia.com

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viii. www.manupatra.com
ix. www.scconline.com
x. www.legitquest.com

CASES REFFERED:

1. D. K. Yadav v. J.M.A. Industry Ltd., MANU/SC/0529/1993.

2. Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors., AIR 1986 SC 18
3. Consumer Education Research Center v. Union Of India, AIR 1995 SC 922
4. L. Nagaraju v. Syndicate Bank and Ors., MANU/AP/3751/2013
5. Karam Singh vs Hardayal Singh and Ors., MANU/PH/0267/1979
6. Police Commissioner and Ors vs Yash Pal Sharma,MANU/DE/1477/2008
7. Maneka Gandhi v. Union of India (UOI) and Ors., MANU/SC/0133/1978
8. People’s Union for Democratic Rights v. Union of India, AIR1982SC1473
9. Anshu Rani vs. State of U.P. and Ors. MANU/UP/1287/2019
10. M.P. Electricity Board, Jabalpur v. Harsh Wood Products, (1996) 4 SCC 522: AIR 1996
SC 2258
11. D.T.C. v Mazdoor Union D.T.C., A.I.R. 1991 SC 101
12. Basudeo Tiwary v Sido Kanhu University, (1998) 8 SCC 194: AIR 1998 SC 3261.
13. Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487
14. Pradeep Jain v UOI, AIR 1984 SC 1420
15. Indravadan H. Shah v. State of Gujrat, AIR 1986 SC 1035
16. Ramana Dayaram Shetty v. I.A.A.I., A.I.R. 1979 SC 1628)
17. D.T.C. v. Mazdoor Union D.T.C., AIR 1991 SC 101.
18. Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
19. Om Prakash Srivastava v. Union of India, MANU/SC/3240/2006
20. Dula Ram Choudhary v. Managing Director, Uttar Pradesh Co-operative Spinning Mills
Federation Ltd. 2009 LLR 1092 ALLHC
21. P.T.I Employees Union vs Press Trust Of India Ltd,AIR1974SC1044
22. S.C. Sharma vs Union Of India (UOI) And Ors. MANU/BH/0119/1976
23. Assistant Commissioner of State Tax and Others Vs Commercial Steel Limited,
MANU/SC/0872/2021
24. Dwarka Nath v. Income tax Officer,AIR1966SC81
25. Sadguru v. V.R. Rudani, MANU/SC/0028/1989

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26. Whirlpool corporation. v. Registrar of Trademarks 1988 8 SCC
27. U.O.I. v. Mohd. Ramzan Khan 1991 1 SCC 588
28. Asia Pacific Institute of Management v. Office of The Joint Labour Commissioner,
MANU/DE/3498/2021
29. Municipal Corporation of Delhi v. Female workers(Muster Roll) and
Anr,MANU/SC/0164/2000
30. M.S. Greval v. Deep Chand Sood, MANU/SC/0506/2001
31. State of Haryana v. Smt. Santra (2000) 5 SCC 182:: AIR 2000 SC 3335.
32. Divisional Controller, G.S.R.T.C. vs. Ashok Kumar Keshavlal Parekh and
Ors.,MANU/GJ/0176/1998
33. Rohtas Industries Staff Union v. State of Bihar, AIR 1963 Pat. 170
34. Conway v. Wade, 1909 A.C. 506.
35. Case General Labour Union (Red Flag) v/s B. V. Chavan And Ors, MANU/SC/0192/1984
36. Crompton Greaves Limited v. Workmen,AIR 1978 SC 1489 37. Gujarat steels v. Its
Mazdoor Sabha, AIR1980SC1896

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 STATEMENT OF JURISDICTION

The petitioners have approached this Hon’ble High Court of Estancia under Article 226 of
Constitution of Asiana,

Article 226 is read as,

“(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”

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 STATEMENT OF FACTS

1. Zara, citizen of Estancia, in Asiana and employee of Thor Industrial Sector, one of the most
successful industries for three years three months.

2. On 20-02-2022, Zara was ordered by her supervisor, Mr. Arushi Iyer to shift some grin bags
which were outside, into the warehouse of the factory. She requested him to give her some
other work as she was three months pregnant and since she had a miscarriage last year, she had
a lot of altercations with her husband and thus was extremely cautious. She also mentioned that
her doctor had advised her not to lift heavy weighing things.

3. The supervisor was reluctant to understand her and coerced her into executing the work by
6:00pm and told her that she would be removed if she had not executed the work ordered by
the superiors.

4. As she did not have another choice, she complied by the orders and at 5:45pm, she got a
sharp pain in her lower abdomen, and she visited the factory dispensary. Knowing the fact that
she was pregnant, the doctor at the dispensary gave her the option of either taking painkillers
or taking rest for an hour.

5. As she was afraid of being removed, she took the painkillers, not knowing the effects of it
and decided to continue working as her pain subsided. As she was returning home, the
unbearable pain resurfaced, and she was rushed to her gynaecologist.

6. As the miscarriage process has already started, she had an imminent abortion. The
gynaecologist, Dr. Shraddha, identified the reason for abortion being lifting of heavy bags and
consumption of painkillers.

7. After twenty-three days, on 15th March 2022, she reported back to her work where she learnt
by the supervisor that she has been replaced and her services were not required anymore. Her
dues were not paid as well.

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8. This news spread across to the trade union and they decided to hold a silent strike the
premises of the factory during their emergency meeting. The negotiations between the
management and the union failed and the management imposed a lockout.

9. Later when the trade union found out about Zara taking pills given by the doctor who had
the knowledge of her pregnancy, a few of them were agitated as it was a gross violation of
labour laws and threw stones at Mr. Arushi Iyer’s residence and office.

10. Mr. Arushi Iyer hired bouncers with the help of the President of a political party. These
bouncers used coercive force and lathi charge on the Union members. This deteriorated the
situation.

11. The trade union filed a suit for violation of constitutional principles under Art. 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.

12. The court combined both the petitions and set the date for hearing on 25th August 2022.

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 ISSUES RAISED

 ISSUE 1: Whether the petition filed before the Hon'ble High Court of Estancia is
maintainable?

 ISSUE 2: Whether there has been any violation of standards set for the workers
in the industry?

 ISSUE 3: Whether the act of strike by workers & the lock out to counter is
justifiable?

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 SUMMARY OF ARGUEMENTS

ISSUE 1: Whether the petition filed before the Hon'ble High Court of Estancia is
maintainable?

It is humbly submitted before this Hon’ble High Court of Estancia that the present writ is
maintainable as there has been a gross violation of fundamental rights as well as the violation
of principles of natural justice.

ISSUE 2: Whether there has been any violation of standards set for the workers in the
industry?

It is humbly submitted by the petitioners that there was a gross violation of Statutory laws by
Thor Industrial Sector, namely the Maternity Benefit Act, 1961; Payment of Wages Act, 1936;
Factories Act, 1948; Employee Compensation Act, 1923 and The Indian Penal Code, 1860.

ISSUE 3: Whether the act of strike by workers & the lock out to counter is justifiable?

The strike by the Trade Union is justifiable as there were violations of Constitutional principles
and labour laws that is why the trade union resorted to hold a strike that, Zara was coerced to
lift the bags that was very heavy leading to miscarriage and she was dismissed from
employment without reasonable notice.

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 ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE PETITION FILED BEFORE THE HON'BLE HIGH

COURT OF ESTANCIA IS MAINTAINABLE?

The counsel most humbly submits to this Hon’ble High Court of Estancia that the present writ
petition is maintainable as there has been a severe violation of Fundamental Rights and the
principles of Natural Justice.

1.1 Maintainable on the grounds of violation of Fundamental Rights:

1.1.1 ARTICLE 21:

It is submitted that the petition was filed by the Trade Union against Thor Industrial sector for
the violation of Fundamental Rights under Article 21 of the Constitution of Asiana. Right to
livelihood is an implied right as rightly explained by the Hon’ble Supreme Court in the case of
D. K. Yadav v. J.M.A. Industry Ltd “The right to life enshrined under Art. 21 includes the
right to livelihood and therefore termination of the service of a worker without giving him
reasonable opportunity of hearing unjust, arbitrary, and illegal…” 1

The court, in Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors.4 defined ‘right to
livelihood’ under Right to work as a Fundamental right, “Which makes life possible to live,
must be deemed to be an integral component of the right to life. For if a person is deprived of
his right to livelihood he shall be consequently deprived of his right to life, for life- as enshrined
under Art. 21, meant more than mere animal existence.”2 The case in hand, Zara was
terminated and replaced from her job by her supervisor with no prior notice. This amounts to
depriving her from ‘Right to Work’ and ‘Right to Livelihood’ as Fundamental rights under
Article 21.

1
D. K. Yadav v. J.M.A. Industry Ltd., MANU/SC/0529/1993.
2
Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors., AIR 1986 SC 18.

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1.1.2 RIGHT TO PROPER HEALTH AND MEDICAL CARE:

An employee has the right to a safe working environment. The Hon’ble Supreme Court in
Consumer Education Research Center v. Union Of Asiana held that, “The right to health and
medical care to protect one’s health and vigor, while in service or post-retirement, is a
fundamental right of a worker under Art. 21 read with Art. 39(e), 41, 43, 48-A and all related
Art. and fundamental human rights to make the life of the workman meaningful and purposeful
with dignity of person.”3 Zara’s medical condition was not considered by the supervisor, and
she was coerced to execute the work, which lead to her miscarriage.

Harassment by the employer infringes the ‘Right to Safe working environment’. Mental
harassment has been explained in the case of L. Nagaraju v. Syndicate Bank and Ors,
“Harassment is any improper and unwelcome conduct that might reasonably be expected or
be perceived to cause offense or humiliation to another person…..”4

Here, Zara’s health deteriorated due to the work that was assigned to her. Article 42 reads as
follows, “Provision for just and humane conditions of work and maternity relief The State
shall make provision for securing just and humane conditions of work and for maternity
relief”5

The medical assistance Zara received at the dispensary was not effective. Due to consumption
of painkillers, Zara had an imminent miscarriage. As per the text of Article 226 of the
Constitution, High Courts are empowered to issue writs against “any person or authority” for
the enforcement of fundamental rights, or “any other purpose”.

1.1.3 VIOLATION OF ARTICLE 15(3)- WHERE IT ALL BEGINS!

Art. 15 of the Constitution states, “Prohibition of discrimination on grounds of religion, race,

caste, sex or place of birth” Clause (3) of this Article empowers the State to make any special

3
Consumer Education Research Center v. Union Of Asiana, AIR 1995 SC 922.
4
L. Nagaraju v. Syndicate Bank and Ors., MANU/AP/3751/2013.
5
Asiana CONST. Art. 42, 1950.

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provision for women and children. The said clause reads as under. “Nothing in this art. shall
prevent the State from making any special provision for women and children”.6
Article 15 shall be read as so to honor and treat women with dignity at places where they work
to earn their livelihood. Whatever be the nature of their duties, their avocation and the place
where they work; they must be provided all the facilities to which they are entitled. To become
a mother is the most natural phenomena in the life of a woman. Whatever is needed to facilitate
the birth of child to a woman who is in service, the employer has to be considerate and
sympathetic towards her and must realize the physical difficulties which a working woman
would face in performing her duties at the workplace while carrying a baby in the womb or
while rearing up the child after birth. The Maternity Benefit Act, 19617 aims to provide all
these facilities to a working woman in a dignified manner so that she may overcome the state
of motherhood honorably, peaceably, undeterred by the fear of being victimized for forced
absence during the pre- or post-natal period and hence, why today the petition seeks for justice
and states that the Industrial Sector did not provide Zara a workplace safe for her or her unborn
child. This amounts to violation of Art.15(3) of the Constitution of Zara.

1.2 NOT ABIDING BY THE PRINCIPLES OF NATURAL JUSTICE:

The counsel humbly acknowledges the fact that the supervisor, Mr. Arushi Iyer did not give
Zara adequate chance to defend her absence before he terminated her from the job. Decision to
terminate employment should be taken depending on the gravity of the absence on the part of
the employee. In case of misconduct, it is improper to terminate the employment without
conducting an internal inquiry to comprehend the truth of this matter. The requirement of the
right to be heard also goes hand in hand with the principles of natural justice.

In Industrial Disputes Act, 1947, 5th Schedule, 2(ra), to discharge or dismiss workmen in
utter disregard of the principles of Natural Justice in the conduct of domestic enquiry or with
undue haste is considered to be unfair labor practice.8 From the above section, Zara had a
reasonable cause for her absence. She was not given a chance to prove her absence. Under sub

6
Asiana CONST. Art. 15(3), 1950.
7
The Maternity Benefit Act, 1961.
8
Industrial Disputes Act, 5th Schedule, 2(ra), 1947.

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clause (b), the management did not conduct an internal enquiry specified under the Rule of
Law and thus, there was a violation of ‘Right to be Heard’.

1.3 THE THREAT TO PUBLIC DISORDER:

In this regard, Zara has been coerced to lift heavy weights, thereafter, terminated without
paying her dues which indicates the intention of the supervisor to harass her. According to 144
of the CrPC, the police can resort to the use of force only when an unlawful assembly refuses
to disperse9. Under this provision, the Police have the ability to disperse a crowd or a group of
five or more people when there is a threat of public disorder. But the Private security agency
regulation Act regulates the bouncers and bodyguards, or any such individual hired for
personal protection, but it does not grant them any power to use excessive force on any
individual. The dignity of the workers was inconsistently affected because there was no just
explanation of force that was used upon them by the bouncers in the form of “lathi charge”.

It is stated by Hon’ble High Court of Punjab and Haryana in the case of Karam Singh vs
Hardayal Singh and Ors.,
“Before any force can be used, three prerequisites are to be satisfied.
• Firstly, there should be an unlawful assembly with the object of committing violence or an
assembly of five or more persons likely to cause a disturbance of the public peace.
• Secondly, such assembly is ordered to be dispersed and
• Thirdly, in spite of such orders to disperse, such assembly does not disperse.”10

The usage of bouncers for private protection should prove the necessity of individual or entity’s
protection. Whereas, in this scenario, a few members of the Trade Union were agitated and
protested in front of Mr. Arushi Iyer’s house. The supervisor, having a relationship with the
President of the ruling party, hired Bouncers for his personal protection. Which makes them
hired in contract of employment and the supervisor becomes the master during their course of
employment. In such a case, The Lathi charge done by the bouncers over trade union members
makes the master, that is Mr. Arushi Iyer, liable.

9
CrPc, sec.144, 1973.
10
Karam Singh vs Hardayal Singh and Ors., MANU/PH/0267/1979.

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As per the text of Article 226 of the Constitution, High Courts are empowered to issue writs
against “any person or authority” for the enforcement of fundamental rights, or “any other
purpose”. The term “authority” must receive a liberal construction, as held in cases including
Dwarka Nath v. Income tax Officer and Andi Mukta Sadguru v. V.R. Rudani, The ‘public
function’ test, i.e., the proposition that private entities discharging functions characterized as
‘public’ are covered under Art. 226, is a product of such a liberal construction.11

It is humbly submitted before the court that in spite of availability of alternative remedy, the
court may exercise the writ petition on three contingencies
(I) whether the writ petition seeks enforcement of any of the fundamental rights
(II) where there is a failure of principle of natural justice
(III) where the order or proceeding is wholly without jurisdiction or vires of any act is
challenged.
The present case attracts applicability of first two contingencies. Moreover, the petitioner
termination of employment contract was an irrelevant and non-existent cause and the right of
employee of being heard and the procedure of departmental enquiry is not being followed.
Nonsupply of report of inquiry officer to delinquent would constitute the infringement of
doctrine of natural justice. Therefore, it is humbly submitted that this writ petition is
maintainable.

ISSUE 2: WHETHER THERE HAS BEEN ANY VIOLATION OF STANDARDS SET

FOR THE WORKERS IN THE INDUSTRY?

It is humbly submitted by the petitioners that there was a gross violation of Statutory laws
by Thor Industrial Sector, namely the Maternity Benefit Act,1961; Payment of Wages
Act,1936; Factories Act,1948; Employee Compensation Act,1923 and The Asianan Penal
Code,1860.

2.1. Violation of Maternity Benefit Act,1961

It is submitted to this court that Maternity benefits are necessary so that a mother may spend
quality time with her child without having to worry about losing her career and source of

11
Mukta Sadguru v. V.R. Rudani, MANU/SC/0028/1989.

15
income. Every woman is entitled to maternity benefits, which are payments sent to her at the
rate of the average daily income for the time she was actually away from work. Her employer
is responsible for making these payments.

Zara is entitled to receive maternity benefits under the Maternity Benefit Act, as Section 2
provides that, “It applies in the first instance, to every establishment being a factory, mine or
plantation”. And as provided in the facts, Thor industries is one of the leading industries in
Asiana.

Zara was terminated from her job, which straight away violated the right to take leave from her
work for maternity. As section 9 reads, “Leave for miscarriage. -- In case of miscarriage, a
woman shall, on production of such proof as may be prescribed, be entitled to leave with wages
at the rate of maternity benefit for a period of six weeks immediately following the day of her
miscarriage”12. The importance of maternity leave was also highlighted in the case Municipal
Corporation of Delhi v. Female workers(Muster Roll) and Anr, as it was said that,
“A woman employee, at the time of advanced pregnancy, cannot be compelled to undertake
hard labour as it would be detrimental to her health and also to the health of the foetus. It is
for this reason that It is provided in the Act that she would be entitled to maternity leave for
certain periods prior to and after delivery.”13

And it is further foreshadowed in Section 5(1) of the said Act that “Subject to the provisions
of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment
of maternity benefit at the rate of the average daily wage for the period of her actual absence
immediately preceding and including the day of her delivery and for the six weeks immediately
following that day.”14

Thus interpreting Section 9 r/w 5(1), Zara was entitled to a minimum of six weeks of leave
with wages as she had faced miscarriage. Moreover she did not have the opportunity to produce
any proof of absence as she was terminated without being heard.

2.2. Violation of Payment of Wages Act, 1936 and Factories act

12
Section 9 of Maternity Benefit Act
13
Corporation of Delhi v. Female workers(Muster Roll) and Anr
14
Section 5(1) of Maternity Benefit Act

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Even after the illegal termination of Zara, she was not paid off her dues, for which she was
entitled to. Section 3 of Payment of Wages Act mandates employer to pay the wages to his
employed person, as it reads,
“Every employer [including a contractor,] shall be responsible for the payment to persons
employed by him of all wages required to be paid under this Act”.15

When read with Section 5 of the Act, it is evident that the defendant has violated the clauses
of the Act, as it directs the employer to pay off the wages to a terminated employee, within the
second working day from the day on which his employment is terminated, which was not done
in the current case. The defendant has not only deprived Zara of her wages but has also crossed
the duration to pay it.

2.3 Violation of the Asianan Penal Code,1860 and Medical Negligence

Negligence is the breach of a legal duty to care. It means carelessness in a matter in which the
law mandates carefulness. A breach of this duty gives a patient the right to initiate action
against negligence. Persons who offer medical advice and treatment implicitly state that they
have the skill and knowledge to do so, that they have the skill to decide whether to take a case,
to decide the treatment, and to administer that treatment. This is known as an “implied
undertaking” on the part of a medical professional.

In the case of the State of Haryana v. Smt Santra, the Supreme Court held that every doctor
“has a duty to act with a reasonable degree of care and skill”.16

Further, in the case of M.S. Grewal v. Deep Chand Sood, the apex court held that,
"Negligence in common parlance means and implies failure to exercise due care, expected of
a reasonably prudent person. It is a breach of duty and negligence in law ranging from
inadvertence to shameful disregard of safety of others. It is caused by heedlessness or
inadvertence by with the negligent party is unaware of the results which may follow from his
act negligence is thus a breach of duty or lack of proper care in doing something, in short, it

15
Section 3 of Payment of Wages Act
16
State of Haryana v. Smt Santra

17
is want of attention and doing of something which a prudent and a reasonable man would not
do."17

In the case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr.,
AIR 1969 SC 128, and A.S.Mittal v. State of U.P., AIR 1989 SC 1570, it was laid down that
when a doctor is consulted by a patient, the doctor owes to his patient certain duties which are:
(a) duty of care in deciding whether to undertake the case, (b) duty of care in deciding what
treatment to give, and (c) duty of care in the administration of that treatment. A breach of any
of the above duties may give a cause of action for negligence and the patient may on that basis
recover damages from his doctor.

From the aforementioned case laws, it is to be understood that, a doctor has a sense of
responsibility over his patients, and must treat them with due care and diligence, which was
not in the current case. The doctor of the factory, had provided Zara the medication which was
a contributing factor to her miscarriage, which is an act of medication error, as the doctor was
well aware that Zara was pregnant, thus resulting in medical negligence. As it was the doctor’s
duty to decide on what treatment must be given and to administer such treatment with care.

As, Section 338 states,

“Causing grievous hurt by an act endangering life or personal safety of others. — Whoever
causes grievous hurt to any person by doing any act so rashly or negligently as to endanger
human life, or the personal safety of others, shall be punished with impris-onment of either
description for a term which may extend to two years, or with fine which may extend to one
thousand rupees, or with both.”18
It could be very well understood that the doctor is liable under Section 338, as Zara’s personal
safety was disrupted by the negligent behavior of the doctor.

The doctor is also to be charged under Section 316 of the Asianan Penal Code, as the negligent
behavior has caused the death of an unborn child which amounts to culpable homicide, as
Section 316 reads,

17
M.S. Grewal v. Deep Chand Sood
18
Section 338 of Asianan Penal Code

18
“Causing death of quick unborn child by act amounting to culpable homicide. — Whoever does
any act under such circum-stances, that if he thereby caused death, he would be guilty of
culpable homicide, and does by such act cause the death of a quick unborn child, shall be
punished with imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine.”19

2.4 Violation of the Employee’s Compensation Act, 1923

The liability of an employer to pay compensation, under sub-sec. (1) of sec. (3) is dependent
upon the following four conditions:
(1) Personal injury must have been caused to an employee;
(2) Such injury must have been caused by an accident;
(3) The accident must have arisen out of and in the course of employment; and
(4) The injury must have resulted either in death of the employee or in his total or partial
disablement for a period exceeding three days.
The above mentioned points clearly emphasize on the compensation to be made to the
employee under circumstances. Zara being an employee regardless of the employment status,
is to be benefited by the employer for the loss she had suffered due to the act of the employer.

ISSUE 3: WHETHER THE ACT OF STRIKE BY WORKERS & THE LOCK OUT TO
COUNTER IS JUSTIFIABLE?

The strike by the Trade Union is justifiable as there were violations of Constitutional principles
and labour laws that is why the trade union resorted to hold a strike that, Zara was coerced to
lift the bags that was very heavy leading to miscarriage and she was dismissed from
employment without reasonable notice. Doctor gave her the painkillers who was negligent and
she not knowing the effect of such she could not bear a child at all because there was an
imminent abortion. This was clearly a violation of Constitutional provisions 15(3), 14, and 21.
Also there was violation of the Maternity Benefit Act which ensured a safe and secure
environment for a pregnant woman to work in.

19
Section 316 of Asianan Penal Code

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This clear infringement of her rights pushed the trade union to use the basic right available to
them that is right to strike as the management failed to negotiate on the same. Here due to
extreme violation of labour laws the trade union resorted to management for the same but the
negotiation failed. The strike held by the union was the only reasonable resource to ask
management for Zara’s dues and also the violations of labour laws in the industry. The strike
as the weapon was used sparingly for redressal of urgent and pressing grievances because there
was no means available. Negotiations with the management failed, leading the trade union to
go for a strike. Thus, the available means failed to resolve the situation.

In the case Rohtas Industries Staff Union v. State of Bihar20 it was held that striking workmen
are not prevented from taking recourse to the protection of Sec. 18 of the Trade Unions Act 21,
1926 mainly because the strike is illegal under Sec. 24 (1) of the Industrial Disputes Act,
1947. It is the duty of the court to see that the strike is undertaken in contemplation or
furtherance of a trade dispute. But the expression “in contemplation or furtherance of” is not
defined.22 For any act to be done in furtherance of a dispute, the dispute must be present or
imminent and whether a trade dispute is actual, impending or probable is a question of fact in
each case.

3.1 NOTICE OF LOCK-OUT WAS GIVEN:

In the Case General Labour Union (Red Flag) v/s B. V. Chavan And Ors., the Hon’ble
Supreme Court expressed Imposing and continuing a lockout deemed to be illegal under the
Act is an unfair labour practice.23 Under sec. 22(2)(a) the Industrial Disputes Act 1947, “No
employer carrying on any public utility service shall lock- out any of his workmen-- (a) without
giving them notice of lock- out as hereinafter provided, within six weeks before locking out”24

It is clearly specified that a public utility service sector cannot impose a lockout without
providing a notice beforehand. Lockout of any factory or industry is governed by the law called
the Industrial Disputes Act 1947. According to Sec. 22 of this Act, lockout of factories or

20
Rohtas Industries Staff Union v. State of Bihar, AIR 1963.
21
The Trade Unions Act, Sec. 18, 1926.
22
The Industrial Disputes Act, Sec. 24 (1), 1947.
23
Case General Labour Union (Red Flag) v/s B. V. Chavan And Ors,
MANU/SC/0192/1984.
24
The Industrial Disputes Act, sec. 22(2)(a) 1947

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industry must be done only after issuing prior notice to concern employees. If not, such lockout
shall be treated as illegal lockout and concerned factory or industry shall be penalized
according to the Industrial Disputes Act 1947.

In the case Crompton Greaves Limited v. Workmen, the court observed, “A strike cannot be
said to be unjustified unless the reasons for it are entirely perverse or unreasonable. Whether
a particular strike was justified or not is a question of fact which has to be judged in the light
of the facts and circumstances of each case. It is also well settled that the use of force or
violence or acts of sabotage resorted to by the workmen during a strike was justified or not is
a question of fact which has to be judged in the light of the facts and circumstances of each
case.”25

The Thor Industrial Sector, rendering essential services, imposed a Lock-out without giving a
prior notice to the employees. This amounts to the Lock-out being Illegal.

3.2 RIGHT TO ESPOUSE THE WORKMEN- TRADE UNION ACT:

Sec. 15(c) Trade Union Act 1926, reads, “the prosecution or defense of any legal proceeding
to which the Trade Union or any member thereof is a party, when such prosecution or defense
is undertaken for the purpose of securing or protecting any rights of the Trade Union as such
or any rights arising out of the relations of any member with his employer or with a person
whom the member employs” .

The above provision is the right of the Trade Union to defend a member employee and secure
their rights. It is observed in the instant case that the Trade Union was defending and standing
by Zara, who had her Fundamental Rights infringed by the Industrial sector. Sec. 15(d) and (e)
states, “(d) the conduct of trade disputes on behalf of the Trade Union or any member thereof;
(e) the compensation of members for loss arising out of trade disputes;”26

25
Crompton Greaves Limited v. Workmen,AIR 1978 SC 1489.
26
Trade Union Act, Sec. 15(c), (d) and (e), 1926.

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The right to conduct a trade dispute if any member is affected or compensate the loss of a
member through a trade dispute is conferred to the Trade union. Based on the above rights
conferred upon the Trade Union, the strike they conducted was justifiable.

3.3 EXISTENCE OF UNFAIR LABOUR PRACTICES- Industrial Disputes Act,1947:

The Thor Industrial Sector has indulged in Unfair trade practices under this Act. Under Sec. 2
(ra) of Industrial Disputes Act, 1947, the term “‘Unfair Labour Practice’ means any of the
practices specified in the Fifth Schedule” Under Fifth Schedule, I (14), (15), and (16) state,
(14) To indulge in acts of force or violence.
(15) To refuse to bargain collectively, in good faith with the recognized trade unions.
(16) Proposing or continuing a lock-out deemed to be illegal under this Act.27
The above unfair labour practices were done by the Industrial sector and thus, it is an
infringement of the Industrial Dispute Act.

3.4 STRIKE WAS IN BONAFIDE INTENTION:

The Trade Union’s strike was in a bona-fide intention. In the case of Gujarat steels v. Its
Mazdoor Sabha, Justice Krishna Iyer stated that, “…. even an illegal strike can be a Justified
one”. The strike was conducted in bonafide intention to secure the worker’s constitutional and
statutory rights which were clearly violated. Therefore, it is humbly submitted that the strike is
justifiable.28

27
Industrial Disputes Act, Sec. 2 (ra), 1947.
28
Gujarat steels v. Its Mazdoor Sabha, AIR1980SC1896.

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 PRAYER

In the light of fact cited issues raised, arguments advanced, and authority cited, and in the era
where the country claims to be a secular one where people e free to practice, profess and
propagate their religion, the Petitioner humbly submit that this High court in the interest of
justice may graciously be pleased to declare:

1. That the present writ petition filed by the petitioner shall be maintainable on the grounds of
violation of fundamental rights;
2. There was violation of 5 statutory laws:
Violation of Maternity Benefit Act,
1961, Violation of Payment of Wages Act, 1936, Violation of Factories Act, 1948, Violation
of the Indian Penal Code, 1860, Medical Negligence and Violation of the Employee's
Compensation Act, 1923;
3. That the respondent shall be held liable for all the loss incurred by the petitioner;
4. That there was violation of the set principle by the use of “lathi-charge” by the bouncers
which shall be held illegal.
5. To direct the authorities concerned to ensure that there is compliance of the standards set
for the workers in the factories.

AND/OR

pass any other order that the Hon’ble court may deem fit in the favor of the petitioners to
meet the ends of equity, justice and good conscience.

All of which is humbly prayed.

Respectfully submitted

Counsel on behalf of the Petitioner

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