BEFORE THE
HON’BLE JHARKHAND HIGH COURT AT RANCHI
Under
Article 226 of the Indian Constitution, 1950
▬ IN THE MATTER OF ▬
SP Tyres Ltd., Ranchi....................................................................(Petitioner)
v/s.
Mr. Ajit ..............................................................................................(Respondent)
ON SUBMISSION TO THE HON’BLE JHARKHAND HIGH COURT AT RANCHI
-: MEMORIAL ON BEHALF OF PETITIONER :-
COUNSEL FOR THE PETITIONER
BAGADA RAM
SEC.- A, ROLL NO.- 103
VIIITH SEMESTER, NUSRL, RANCHI
Memorial on Behalf of Petitioner Page 1
TABLE OF CONTENTS
1. INDEX OF AUTHORITIES ……………………………………………………...3-5.
1.1 Case Laws ............................................................................................................3-4.
1.2 Statutes and Guidelines ........................................................................................4.
1.3 Books & Websites ……………………………………………………………...4.
1.4 List of Abbreviations.............................................................................................5.
2. STATEMENT OF JURISDICTION......................................................................6.
3. STATEMENT OF FACTS .....................................................................................7.
4. STATEMENT OF ISSUES .....................................................................................8.
5. SUMMARY OF ARGUMENTS ............................................................................9.
6. ARGUMENTS ADVANCED .................................................................................10-14.
7. PRAYER ….............................................................................................................. 15.
Memorial on Behalf of Petitioner Page 2
INDEX OF AUTHORITIES
CASE LAWS
1. Western India Automobile Association v. Industrial Tribunal ....................(1949) LLJ 245
2. State of Orissa v. Binapani Devi ……………………………….....……(1967) II LLJ 266
3. Workers of Sagar Talkies v. Odeon Cinema ........................................(1957) 1 LLJ 639 M
4. Management of Bharat Kala Kendra Pvt. Ltd v. R K Baweja ...................1981 Lab IC 893
5. Management of SRP Tools Pvt Ltd. v. Add. Labour Court ......................(1974) 1 LLJ 413
6. LIC v. R Dhandapani ………………………………...…………………(2006) 5 SCC 613
7. S. S. Shetty v. Bharat Nidhi Ltd .................................................................(1957) 2 LLJ 696
8. Food Craft Instt. vs Rameshwar Sharma And Anr. ............................(2007) 2 LLJ 350 Del
9. Talwara Co-Operative Credit & Service Society Ltd. v. Sushil Kumar
.............................................................................................................(2009) I LLJ 326(SC)
Memorial on Behalf of Petitioner Page 3
STATUTES & GUIDELINES
1. The Constitution of India, 1950
2. The Industrial Disputes Act, 1947
BOOKS
1. Jain, M.P., “Indian Constitutional Law”, Sixth Edn., Lexis Nexis Butterworths Wadhwa,
Nagpur, 2010.
2. Basu, Durga Das, “Commentary on the Constitution of India”, Eighth Edition, Lexis
Nexis Butterworths Wadhwa, Nagpur 2009.
3. Misra, S.N. “Labour & Industrial Laws”, 27th Edn., Central Law Publications,
Allahabad, 2014.
4. Malik, P.L., “Industrial Law”, 23rd Edn., Vol. 2, Eastern Book Company, Lucknow,
2012.
5. Malhotra’s, O.P. “The Law of Industrial Disputes”, 6th Edn., Vol. 2, Lexis Nexis,
Butterworths, Wadhwa, Nagpur, 2014.
WEBSITES
1. www.manupatra.com
2. www.lexis-nexisindia.com
3. www.indiankanoon.com
4. www.westlawindia.com
Memorial on Behalf of Petitioner Page 4
ABBREVIATIONS
1. & - And
2. AIR - All India Reporter
3. Anr - Another
4. Cl - Clause
5. Edn. - Edition
6. Ors. - Others
7. P. - Page
8. Pp. - Pages
9. v. - Versus
10. Vol. - Volume
11. SC - Supreme Court
12. SCC - Supreme Court Case
13. Hon’ble - Honourable
14. Sec. - Section
15. Co. - Company
16. Pvt. - Private
17. LLJ - Labour Law Journal
18. LabIC - Labour Law Journal
19. Bom. - Bombay
20. Del. - Delhi
Memorial on Behalf of Petitioner Page 5
STATEMENT OF JURISDICTION
The Counsel for the Petitioner has approached to this Hon’ble Jharkhand High Court at Ranchi
under Article 2261 of the Indian Constitution, 1950 to hear the present matter and adjudge
accordingly.
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 favor 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
Memorial on Behalf of Petitioner Page 6
STATEMENT OF FACTS
On 12 March 2000, Mr. Ajit as a temporary employee was employed through M/S R.M.
Manpower Enterprises, by SP Tyres Ltd, Ranchi on a monthly remuneration of Rs. 3000.
He was responsible to dispatch official mail to various offices and also looked after
gardens at the residences of some managers. He was subjected to the control and
direction of the Personal Manager.
On 17 March 2008 he failed to deliver personal mail to the General Manager and also
misbehaved with him. He was terminated, after conducting enquiry. But he was not given
opportunity to cross examination the GM.
On 1st April 2008 he joined another firm in the locality, at monthly remuneration @
Rs.2000.
On 12 April 2008, he challenged the termination before the Labour Court. Labour Court
appreciated the evidences on records and sought fresh evidence from the employer.
On 11 July 2008 The Labour Court directed the employer to reinstate the workman with
100% back wages.
The said award was received by the appropriate government on 20 July 2008 and was
published in the Official Gazette on 27 August 2008.
On 5 Sept 2008 the Employer approached the High Court.
Memorial on Behalf of Petitioner Page 7
STATEMENT OF ISSUES
1. WHETHER SP TYRES LTD. RANCHI CAN APPEAR BEFORE THIS HON’BLE
JHARKHAND HIGH COURT UNDER ARTICLE 226 OF THE INDIAN
CONSTITUTION, 1950?
2. WHETHER THE DECISION OF THE LABOUR COURT SHOULD BE SET ASIDE?
Memorial on Behalf of Petitioner Page 8
SUMMARY OF ARGUMENTS
1. WHETHER SP TYRES LTD. RANCHI CAN APPEAR BEFORE THIS HON’BLE
JHARKHAND HIGH COURT UNDER ARTICLE 226 OF THE INDIAN
CONSTITUTION, 1950?
It is humbly contended before this Hon’ble Jharkhand High Court that the Petitioner can
approach the Hon’ble High Court under Art 226 of the Constitution because the
petitioner is not having any other statutory remedy against the decision of the Labour
Court. Moreover, the labour court has exercised excess jurisdiction while giving its
judgment because dismissal of Mr. Ajit was not an industrial dispute. Therefore a writ if
certiorari shall be issued.
2. WHETHER THE DECISION OF THE LABOUR COURT SHOULD BE SET
ASIDE?
It is humbly contended before this Hon’ble Jharkhand High Court that the Decision of the
labour court shall be set aside because the dismissal of the employee is justified for he
was liable for misconduct and a proper enquiry was conducted before his dismissal. He
not only failed to deliver the mail but also misbehaved with the GM. Moreover, it has
given no reasons for interfering with the decision of the enquiry committee which is
mandatory. In addition to this, the employee cannot be reinstated with 100% back wages
when he is gainfully employed in another firm.
Memorial on Behalf of Petitioner Page 9
ARGUMENTS ADVANCED
1. WHETHER SP TYRES LTD. RANCHI CAN APPEAR BEFORE THIS HON’BLE
JHARKHAND HIGH COURT UNDER ARTICLE 226 OF THE INDIAN
CONSTITUTION, 1950?
1.1. It is humbly contended before this Hon’ble Jharkhand High Court that the High
Court under its writ jurisdiction has power to adjudicate this case. The petitioner has
approached the high Court invoking its writ jurisdiction under the writ of certiorari to
bring the proceeding of an inferior court to be quashed by the High Court.
1.2. In the case of Western India Automobile Association v. Industrial Tribunal,2
wherein the court held that the industrial adjudicators have the discretionary
jurisdiction to award the relief of reinstatement where they find that the service of the
industrial workmen were illegally or wrongful terminated. The decision of the
tribunal is reviewable. If there is power to decide and determine to the prejudice of a
person, duty to act judicially is implicit in the exercise of such power.3
1.3.In the case of Workers of Sagar Talkies v. Odeon Cinema,4 for referring the
dismissal of an employee as an ‘industrial dispute’, first relationship of employer and
workmen should be established. S. 2(s) of the Act defines workmen and for an
employee to be a workman he must be employed in an industry to do skilled or
unskilled manual, supervisory, technical or clerical work. If the work done by an
employee is not of such a nature he would not be a workman.
The question whether the employee is a workman, is a mixed question of fact and
law. For this, the tribunal first had to address itself to the various duties assigned to
2
(1949) LLJ 245
3
State of Orissa v. Binapani Devi, (1967) II LLJ 266
4
(1957) 1 LLJ 639 M
Memorial on Behalf of Petitioner Page 10
the employee and to draw a conclusion as to whether in light of the duties, the
employee would be a workmen or not. The jurisdiction of Labour Court in making an
award in the dispute would depend upon the correct finding as to whether he is a
workman or not.5 Thus the present case shall be admitted by the Hon’able Court.
5
Management of Bharat Kala Kendra Pvt. Ltd v. R K Baweja, 1981 Lab IC 893
Memorial on Behalf of Petitioner Page 11
2. WHETHER THE DECISION OF THE LABOUR COURT SHOULD BE SET
ASIDE?
2.1. It is humbly contended before this Hon’ble Jharkhand High Court that the decision of
the Labour Court to reinstate the dismissed workman with 100 % back wages shall be
set aside because the mandatory provisions mentioned in S. 11 A of the Industrial
Dispute Act, 1947 has not been followed.
Misconduct by the Employee-
2.2. A conduct is misconduct if by the commission or omission of the act an atmosphere
destructive of discipline is constituted. It would be incompatible with the express or
implied terms of relationship of the employee to the employer. 6
2.3. In the case of Indian Iron & Steel Co. Ltd v. Their Workmen,7 Supreme Court has
observed that in case of dismissal for misconduct, the tribunal will interfere only
when there is want of good faith, victimization and unfair labour practice etc on part
of the management. In the instant case there has been no such practice by the
management.
2.4. Further in East India Hostels v. Their Workmen,8 court held that interference by the
Industrial Tribunal under the section, with decision of the employer will be justified
only when either the enquiry is unfair and perverse or when the punishment is harsh
or oppressive. Also labour court has to give cogent reasons in support of its decisions
and mere use of word disproportionate or grossly disproportionate would not be
sufficient.9
6
Presidency Talkies v. N S Natrajan, (1968) 2 LLJ 801
7
(1958) 1 LLJ 260, See Also Khardah Co. Ltd vs Their Workmen, AIR 1964 SC 719
8
AIR 1974 SC 696
9
LIC v. R Dhandapani, (2006) 5 SCC 613
Memorial on Behalf of Petitioner Page 12
Fresh evidence cannot be sought.
2.5. The proviso to Sec. 11A clearly provides that in any proceeding under this Section.
the Labour Court shall rely only on materials on record and shall not take any fresh
evidence in relation to the matter. However the Labour Court has sought fresh
evidence from the employer which was also contested by him. If after receiving the
said evidence the Labour Court has based its decision on the basis of that fresh
evidence received then said decision shall be set aside because the decision has been
arrived at after considering inadmissible evidence.
100 % Backwages shall not be granted-
2.6.The section can only be invoked if the order of reinstatement has been passed by the
tribunal for the workmen. The effect of reinstatement is to set at naught such illegal,
unfair or mala fide determination of service of workmen by the employer and to
restore him to his former position.10
The statute requires satisfaction of the following four conditions-11
i. An award by a Labour Court, Tribunal or National Tribunal directing
reinstatement of a workman is assailed in proceedings in a High Court or the
Supreme Court;
ii. During the pendency of such proceedings, employer is required to pay full wages
to the workman;
iii. The wages stipulated under Section 17B are full wages last drawn by him,
inclusive of any maintenance allowance admissible to him under any Rule;
iv. Such wages would be admissible only if the workman had not been employed in
any establishment during such period and an affidavit had been filed to such
effect.
10
S. S. Shetty v. Bharat Nidhi Ltd, (1957) 2 LLJ 696
11
Food Craft Instt. vs Rameshwar Sharma And Anr, (2007) 2 LLJ 350 Del.
Memorial on Behalf of Petitioner Page 13
2.7.In Talwara Co-Operative Credit & Service Society Ltd. v. Sushil Kumar,12 it was
observed that for grant of back wages whether the workmen has been able to
discharge his burden that he had not been gainfully employed is a relevant factor.
Therefore in the present case, as the employee has been employed in another
employment a short while after his dismissal from the service for the consideration of
Rs 2000. Even though his consideration is less that of his previous salary he was
receiving a certain sum of money to maintain himself. Therefore the decision to
reinstate him with 100% back wages shall be set aside.
12
(2009) I LLJ 326(SC)
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PRAYER
Wherefore, in the light of facts of the case, issues raised, arguments advanced and authorities
cited, this Court may be pleased to adjudge and declare that
1. Set aside the decision of the Labour Court.
2. The employee was rightfully dismissed.
3. He is not liable to be reinstated with 100% back wages.
And pass any other order in favour of the Petitioner that it may deem fit in the light of equity,
justice and good conscience.
All of which is respectfully submitted.
On behalf of the Petitioner
Memorial on Behalf of Petitioner Page 15
