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Memorandum on behalf of petitioners

BEFORE

THE HON’BLE HIGH COURT OF JHARKHAND, RANCHI

(Under Sec. 226 of the Constitution of India)

PETITION NO. _________/2017

IN THE MATTER OF

M/s NEW INDIA COMPANY........................................................................... PETITIONER

VERSUS

WORKERS ASSOCIATION.............................................................................RESPONDENT

MEMORANDUM ON BEHALF OF THE PETITIONER

Written submission on behalf of petitioner

Purbasha Panda

Roll no. 590

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Memorandum on behalf of petitioners

TABLE OF CONTENTS
Table of Contents……………............................……………............………………...........…1
List of Abbreviations………………………………..................................................................2
Index of Authorities………………………………………………………...............................3
 Cases referred
 Books referred
 Websites referred
 Statutes
Statement of Jurisdiction…………………………………………………................................4
Statement of Facts……………………………………………………......................................5
Issues Raised..............................................................................................................................6

Issue 1 : Whether the present petition is maintainable before the Labour Court?

Issue 2 : Whether the Aggrieved employee of the respondent is entitled for redress
of the financial losses?

Summary of Argument...............................................................................................................7
Argument Advance....................................................................................................................8
Prayer.......................................................................................................................................14

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Memorandum on behalf of petitioners

INDEX OF AUTHORITIES

A. CASES REFERRED
 Rourkela Shramik Sangh v. Steel Authority of India, (2003) I LLJ SC 849
 General Insurance Employees Association v. Presiding Officer, Industrial Tribunal,
Madras, (2002) IV LLJ (Supp) Mad 855
 S.M. Nilajkaar v. Telecom District Manger, (2003) 4 SCC 27
 Bangalore Water Supply & Sewerage Board v. R. Rajappa, MANU/SC/0257/1978
 Management of Sufdarjang Hospital, Delhi v. Kuldip Singh, AIR 1970 SC 1407
 I.S. Institution v. I.S Institution, AIR, 1976 SC 145
 S. Thilagavthi v. The Presiding Officer, Labour Court and Madurai Children’s Aid
Society, rep. By Its Secretary, (2010) ILLJ 101Mad
 Santokh Singh v. Unkown, LCA 605/16 DEL
 Delhi Central Provinces v. Patwardhan, AIR 1956 SC 104
 Chemicals & Fibers India Ltd. v. D.G. Bhoir, [1975] LLJ 168 (SC)
 Newspaper Ltd v. Industrila Tribunal, AIR 1957 SC 532
 Bilash Chandra v. Balmer Lawrie & Co, (1953) II LLJ 337 Cal
 D.N. Banerjee v. RR. Mukherjee, (1953) I LLJ 195,198
 Balbir Singh v. State of Haryana, [1983] Lab. I.C. 996 (Punj &Har)
B. BOOKS REFERRED
 MALHOTRA O.P, The Law of Industrial Dispues, 5th Edition, Volume 1, Universal law
Publishing, 2014
 KUMAR H.L, Labour And industrial Law, 9th Edition, Volume 2, Universal Law Publishing,
2016
C. WEBSITES REFERRED
 www.manupatrafast.com
 www.scconline.com
D. STATUES REFERRED
 The Industrial Dispute Act, 1947

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Memorandum on behalf of petitioners

LIST OF ABBREVIATION

& And

AIR All India Reporter

Anr. Another

Cal Calcutta

Del Delhi

Lab Labour

LLJ Labour Law Journal

Mad Madras

MANU Manupatra

No. Number

Ors. Others

SC Supreme Court Cases

SCC Supreme Court

Supp Supplementary

v. Versus

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Memorandum on behalf of petitioners

STATEMENT OF JURISDICTION

The petitioner humbly submits this memorandum under Article 2261 of Constitution of India.

1
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

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Memorandum on behalf of petitioners

STATEMENT OF FACTS

1. The company “New India” is having more than 500 workers on its rolls. As per Section 46 of the Factories
Act and the Rules framed there under the Company has to provide and maintain a canteen for its employees.
The company has provided all facilities for running a canteen.

2. The right to conduct the canteen was being given on contract to others from time to time. M/s A2Z was a
contractor engaged for the said purpose and it was running the canteen up to 18th May 1988. From 19th May
1988 to 28th June 1988 the workers of the Company themselves were running the canteen. From 29th June 1988
a new contractor took up the responsibility of running the same. At no point of time had the company run the
canteen by itself. The contractors who took up the responsibility of running the canteen were engaging their own
workmen and they were being paid by the contractors.

3. There was some dispute related to service conditions between contractor and employee of the canteen. The
matter went to the conciliation officer. He was successful in settling the dispute. In fact, service conditions of
the employees working in the canteen were regulated by the settlement entered into between the concerned
contractors and the union in the presence of conciliation officer. One of the clauses of settlement was that
management will pay wages and bonus in case of failure by contractor.

4, However, after some time dispute arose between the M/s A2z and the workers engaged in the canteen
regarding the payment of bonus and arrears of wages for a short period. Consequent on those disputes the
following issues were referred to the Industrial Tribunal for its decision by the Government as per G.O. No.
1109/89/L&H dated 4th August 1989:

(i) Settlement of gratuity to the canteen workers of M/s A2Z Ranchi;

(ii) Bonus and arrears of wages to the above workers for the period up to 28th June 1988.

5. After trial the Tribunal passed Award, the operative portion of this is in the following terms:

“In the above circumstances I pass this award holding that the workers of canteen are also entitled for bonus
during 1987-88 also on the same basis they received in the year 1986-87. The management will pay bonus to
them as the principal employer and after paying the bonus, if they are so advised, they can proceed against the
concerned contractor.”

The petitioner company challenges the award passed by the tribunal.

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Memorandum on behalf of petitioners

ISSUES RAISED

Issue 1 : Whether the present petition is maintainable before the Hon’ble High
Court?

Issue 3: Whether there is an employer employee relationship?

Issue 3 : Whether the workers are entitled to payment and bonus?

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Memorandum on behalf of petitioners

ARGUMENTS ADVANCED
Whether the petition before the High Court is maintainable ?

It is humbly submitted before this Hon’ble court that the petition is maintainable under article
226 of the Indian Constitution. The petition here invokes appellate jurisdiction of High Court
under article 226 of the Indian Constitution. The jurisdiction under article 226 can be
classified into two heads (i) Supervisory jurisdiction (i) Jurisdiction in form of judicial
review. Article 226 of the constitution confers power on all the high courts which they did
not enjoy before commencement of the constitution. It enables them to issue to any person or
authority, including in appropriate cases any government, orders or writs, including writs for
enforcement of any right conferred by part III and “for any other purpose” , i.e enforcement
of any other legal right. In the case of Baby v. Travancore Dewasom Board2 , in this case it
has been held that an order of a tribunal can be challenged in High court.

In the case of Union of India v. S.B Vohra3 The legal right of an individual may be founded
upon a contract or a statute or an instrument having a force of law. For a public law remedy
enforceable under article 226 of the constitution, the actions of the authority need to fall in
the realm of public law-be it a legislative act of the state, an executive act of the state or an
instrumentality or a person or a authority imbued with public law element. The question is
required to be determined in each case having aforementioned principles in mind. However it
may not be possible to generalize the nature of action which would come either under public
law or private law remedy or private law field nor is it desirable to give exhaustive list of
actions. Issuing of writs is an exercise of its original jurisdiction by high court while exercise
of supervisory jurisdiction under article 227 , not an original jurisdiction, in this sense the
latter is akin to appellate jurisdiction or corrective jurisdiction. If the high court issues a writ
it will only annul or quash proceedings but cannot substitute its own decision in place
thereof,while in exercise of supervisory jurisdiction of High Court may not only quash or set
aside the impugned proceedings , judgement or order but may also give suitable direction so
as to guide the sub-ordinate court as to the manner in which it should proceed thereafter or
afresh

2
AIR 1998 Kerela 24
3
AIR 2004 SC 140

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Memorandum on behalf of petitioners

2. Whether there is an employer-employee relationship ?

It is humbly submitted before this Hon’ble court that there is no employer-employee


relationship between the petitioner and the workers. In the case of Hindustan Coca Cola
Bottling v. Bharatiya Kamgar Sena and Ors4the learned single Judge held that in the case of
Cipla Ltd, and Kalyani Steels Ltd. (supra), the whole evidence and the entire material was
placed before the Industrial Court on the basis of which it was found that there was no
employer-employee relationship between the contract labour and the principal employer and
under these circumstances, the Supreme Court has held that if the employees fail to establish
employer-employee relationship by adducing proper material, it cannot be said that the
principal employer was guilty of any unfair labour practice alleged by the employees.

In this case there is no employer-employee relationship , the workers were hired by the
contractors and not the company. In a recent judgement of Supreme Court in the case of
Balwant Rai Saluja v. Air India Ltd.5 , the apex court here analysed the same issue with
view of the kind of control the principal employer can exercise over the employees.

The question of employee-employer relation is dealt with by Supreme Court in catina of


judgments. The Apex Court after considering previous judgments culled out the test for
determining employee-employer relationship. These are summarized as under:-

(i) who appoints the workers;

(ii) who pays the salary/renumeration;

(iii) who has the authority to dismiss;

(iv) who can take disciplinary action;

(v) whether there is continuity of service; and

(iv) extent of control and supervision i.e. whether there exists complete control and
supervision

4
5
2014 LLR 1009

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Memorandum on behalf of petitioners

Normally, the relationship of employer and employee does not exist between an employer
and a contractor and the servant of an independent contractor. Where, however, an employer
retains or assumes control over the means and method by which the work of a contractor is to
be done, it may be said that the relationship between employer and employee exists between
him and the servants of such a contractor.

In the case of Dharangadhara Chemical Works Limited v. State of Saurashtra6 , it has been
held that the prima facie test for determining an employer-employee relationship , what is
important to be considered is not the question that the employer exercises control over the
workers but rather it also exercises control over the manner in which the work should be
done.

In the case of International Airport Authority v. International Air Cargo7 WorkersThe


principal employer only controls and directs the work to be done by a contract labour, when
such labour is assigned/allotted/sent to him. But it is the contractor as employer, who chooses
whether the worker is to be assigned/allotted to the principal employer or used otherwise. In
short, worker being the employee of the contractor, the ultimate supervision and control lies
with the contractor as he decides where the employee will work and how long he will work
and subject to what conditions. Only when the contractor assigns/sends the worker to work
under the principal employer, the worker works under the supervision and control of the
principal employer but that is secondary control. The primary control is with the contractor.

6
1957 AIR 264
7
2009 AIR 107

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Memorandum on behalf of petitioners

Whether the workers are entitled to wages and bonus?

It is humbly submitted before the Hon’ble court that the workers are not entitled to wages and
bonus. In the case of National Engg. Industries Ltd. v. State of Rajasthan8 , it has been held
that during conciliation proceedings it is binding on the members of the Worker’s Union as
laid down by S. 18 (3) of the act. It would ipso facto bind all workmen and the other two
parties. In the given case the fact sheet is silent about the date in which the settlement was
agreed upon and the date till which it will remain in operation. Under Section 19(2) , the
settlement is to terminate at the end of 6 months , or till the period till which it is agreed
upon. The tribunal has awarded the payment of bonus and wages to be made for the total year
of 1987-88 , where the terminated on May , 87. Moreover , there is no formal relationship
between the workers and the employess.

Therefore , bonus and wages can’t be paid for the given time , in no presence of the period of
operation of settlement.

8
2001 SCC 371

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Memorandum on behalf of petitioners

PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Court may graciously be pleased to adjudge and declare:

 That, the proceedings before Tribunal be quashed


 That, the workman is not entitled for the redress of wages and bonus

And pass any order relief in favour of the Petitioners which is in conformity to the principles
of Justice, Equity and Good Conscience.

All of which is respectfully submitted

s/d

Counsel on behalf of Petitioners

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