1479P

IN THE INDUSTRIAL TRIBUNAL

OF JODHPUR

CIVIL SUIT NO. XXX/2017

Suit filed under section 10(1)(d) read with schedule 3, of the Industrial Disputes Act,1947

IN THE MATTER OF

RAMNATH KUMAR AND GOPILAL DEORA.PLAINTIFF

V.

ROYAL AUTOMOBILES LTD....DEFENDANT

MEMORIAL ON BEHALF OF DEFENDANT

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 TABLE OF CONTENTS

INDEX OF AUTHORITES ............................................................................................................ 3

STATEMENT OF FACTS ............................................................................................................. 4

STATEMENT OF JURISDICTION............................................................................................... 5

ISSUES OF CONSIDERATION .................................................................................................... 6

SUMMARY OF ARGUMENTS .................................................................................................... 7

ARGUMENTS ADVANCED ........................................................................................................ 8

PRAYER ....................................................................................................................................... 12

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 INDEX OF AUTHORITES

CASES
1. Premier Automobiles v. K.S. Wadke, (1976) 1 SCC

2. Rajasthan SRTC v. krishan kant, (1995) 5 SCC 75

3. Jitendra nath biswas v. empire of india and ceylone tea co. and anr.,(1989) 3 SCC 582

4. Chandrakant v. municipal corporation of ahemdabad, (2002) 2 SCC 542

5. NRC employees union and ors. V. the government of Maharashtra, 2011 SCC Bom 1531

STATUTES

1. Section 9, code of civil procedure,1908

2. Section 2(k) of industrial dispute act, 1947

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 STATEMENT OF FACTS

I. The dispute in the present matter relates to the Motor Production Department in the

Jodhpur Factory of Company known as "Royal Automobiles Limited".

II. In one of the departments of the company there were three groups of workers: One, the

workers' union which was earlier recognised as a "trade union, and was derecognised

by the company, and secondly another union which was recognised in its place and

thirdly workmen who were members of neither union.

III. As a result of a settlement entered into with the derecognised union an incentive

scheme was in force in this department of the company.

IV. After de-recognition of the union because of the increase in the strength of the

workmen it became necessary for the company to revise the target figures of the

incentive scheme.

V. The company, therefore, entered into a settlement with the union recognised later.

VI. This led to protests from the derecognised union. Ramnath Kumar and Gopilal Deora

who were members of the derecognised union in a representative capacity allege that

the earlier settlement was a contract of service and that the new settlement would bring

about a change in their service conditions, that the new settlement was arrived at

without following the mandatory requirements of S. 9A of the Industrial Dispute Act

and would like to seek for a permanent injunction to restrain the company from

implementing the later settlement.

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 STATEMENT OF JURISDICTION

The Defendant humbly submits to the jurisdiction of the Industrial Tribunal of Jodhpur to hear

and adjudicate the matter under Section 10(1)(D) and schedule 3 of the Industrial Disputes Act,

1947

All of this is submitted most respectfully.

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 ISSUES OF CONSIDERATION

I. WHETHER THE INDUSTRIAL TRIBUNAL COURT OF JODHPUR

HAS RIGHT TO ADJUDICATE THE MATTER?

II. WHETHER THE NEW SETTLEMENT IS VIOLATIVE OF SECTION

9A OF INDUSTRIAL DISPUTE ACT,1947?

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 SUMMARY OF ARGUMENTS

I. WHETHER THE INDUSTRIAL TRIBUNAL COURT OF JODHPUR

HAS RIGHT TO ADJUDICATE THE MATTER?

Section 9 od code of civil procedure says that all the civil courts have to right to adjudicate but in

certain cases the right is expressly and impliedly barred. From the various that has dealt with this

issue it is correct to say that the cases relating to industrial dispute under industrial dispute act,

1947 are impliedly barred for jurisdiction under civil court and such cases are to be dealt with

industrial forum.

II. WHETHER THE NEW SETTLEMENT IS VIOLATIVE OF SECTION

9A OF INDUSTRIAL DISPUTE ACT,1947?

The new settlement that is entered by new recognized trade union and the Defendant company is

not violative of section 9A of Industrial Dispute Act, 1947 as the settlement was entered in by a

recongnised trade union who has right to enter into settlement on behalf of all the employees of

that department and change of notice is not required as the change was brought in pursuance of

settlement.

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 ARGUMENTS ADVANCED

I. WHETHER THE INDUSTRIAL TRIBUNAL COURT OF JODHPUR HAS RIGHT

TO ADJUDICATE THE MATTER?

Section 9 of code of civil procedure, 1908 states that, The Courts shall (subject to the provisions

herein contained) have jurisdiction to try all Suits of a civil nature excepting suits of which their

cognizance is either expressly or impliedly barred.1 In case of industrial dispute in which the

right or obligation is created under the act then the remedy available to suitor is to get

adjudication under the act.

In Premier Automobiles v. K.S. Wadke2, the supreme court in its decision said at page 503:

The object of the Industrial Disputes Act, 1947 as its preamble indicates, is to make provision for

the investigation and settlement of industrial disputes, which means adjudication of such disputes

also. The act envisages collective bargaining, contracts between union representing the workmen

and the management, a matter which is outside the realm of the common law or the Indian law of

contract. Under the act different kinds of authorities having a very varied and extensive powers

in the matter of settlement and adjudication of industrial disputes have been constituted. The

powers of the authorities deciding industrial disputes under the Act are very extensive much

wider than the powers of a civil court while adjudicating a dispute which may be an industrial

dispute.

The expression industrial dispute is defined in Section 2(k) as:

1
Section 9, code of civil procedure,1908
2
Premier Automobiles v. K.S. Wadke, (1976) 1 SCC

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" industrial dispute" means any dispute or difference between employers and employers or

between employers and workmen, or between workmen and workmen, which is connected with

the employment or non- employment or the terms of employment or with the conditions of

labour, of any person;3

From the definition of the industrial dispute the present case qualifies to be an industrial dispute

as the dispute is between employers and workmen regarding the terms of employment.

Again, in Rajasthan State Road Transportation Corpn. V. Krishna Kant4, after considering

various leading decisions on the point, the Supreme Court said:

Where, however, a dispute involves recognition, observance or enforcement of any of the rights

or obligations created by the industrial dispute act, the only remedy is to approach the forums

created by the said act.

The case in hand deals with the rights created in section 9A of industrial dispute act, 1947 so the

case is dealt in the present forum.

In the case of Jitendra Nath Biswas v. Empire of India and Ceylone Tea Co. and another5 the

court said:

The scheme of the industrial disputes act clearly excludes the jurisdiction of the civil court by

implication in respect of remedies which are available under this Act and for which a complete

procedure and machinery has been provided in this Act.

3
Section 2(k) of industrial dispute act, 1947
4
Rajasthan SRTC v. krishan kant, (1995) 5 SCC 75
5
Jitendra nath biswas v. empire of india and ceylone tea co. and anr.,(1989) 3 SCC 582

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And, in case of Chandrakant Tukaram Nikam and others v. Municipal corporation of

Ahemdabad6 and another, the Supreme Court reiterated the principles laid down in the earlier

decisions:

The Industrial Dispute Act was enacted by Parliament to provide speedy, inexpensive and

effective forum for resolution of disputes arising between workmen and the employers, the

underlying idea being to ensure that the workmen do not get caught in the labyrinth of civil

courts which the workmen can ill afford. The procedures followed by the civil courts are too

lengthy and consequences, and consequences are not efficacious forum for resolving the

industrial disputes speedily. The power of the Industrial courts also is wide and such forums are

empowered to grant adequate relief as they think just and appropriate.

So, from above decisions of courts several cases deciding the jurisdiction of cases relating to

industrial dispute it is noted that the matters of such nature is impliedly barred from the

jurisdiction of civil courts. It is to ensure speedy and cost effective trial to the parties to suit.

Hence, the present case is righty submitted before present court.

II. WHETHER THE NEW SETTLEMENT IS VIOLATIVE OF SECTION 9A OF

INDUSTRIAL DISPUTE ACT,1947?

In the case of N.R.C. Employees' Union & Ors v. The Government Of Maharashtra 7, it has been

pointed out that:

6
Chandrakant v. municipal corporation of ahemdabad, (2002) 2 SCC 542
7
NRC employees union and ors. V. the government of Maharashtra, 2011 SCC Bom 1531

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If a settlement was signed by the company with a recognised union, no other union or individual

workmen, whether members of the recognised union or not, had any locus to challenge the

settlement.

The proviso to section 18 of the Industrial Disputes Act, only a recognised union for any

undertaking has the right to arrive at a settlement with the employer in respect of all other

disputes except a dispute relating to the dismissal, discharge, removal, retrenchment, termination

of service or suspension of an employee. Such a settlement is binding on all the persons referred

to under clause (c) and (d) of subsection 3 of section 18.

In the present case the new settlement is a valid settlement with the meaning of section 2(p) of

the Act and the change was brought by the settlement between the now recognized trade union

and the defendant company so, all the employees are bound by the settlement under clause (d) of

sub section 3 of section 18 of the Act. The settlement does not deal with any dispute relating to

the dismissal, discharge, removal, retrenchment, termination of service or suspension of an

employee that means the union has right to make this settlement on behalf of the employees. The

company was not required to comply with the provisions of section 9A of giving a notice of

change. Such situation is possible only when the change is effected in pursuance of settlement

and award. So, there was a settlement within the meaning of clause(a) of the proviso to section

9A of industrial dispute act.

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 PRAYER

Wherefore, in the light of facts stated, arguments advanced and authorities cited, it is most

humbly prayed before this Industrial Tribunal of Jodhpur, that it may be pleased to:

1. Dismiss the plaint

And pass any order in favour of the Plaintiff which this court may deem fit in the ends of justice,

equity and good conscience.

All of which is most humbly and respectfully submitted.

Date: August 3, 2017 Counsel for the Defendant

Place: Jodhpur S/d-

Counsel No. 1479P

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