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Petition - Labour LAW - Moot Activity

Labour Law I (Guru Gobind Singh Indraprastha University)

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TC - 12

LABOUR LAW-II MOOT ACTIVITY, 2024

before

THE HON’BLE LABOUR COURT, DISTRICT RAMNAGAR

IN THE MATTER OF-

TRADE UNION, BAWANA INDUSTRY…………………..…………………………CLAIMANT

v.

BAWANA INDUSTRY…………………………………………………………………. RESPONDENT

[WRITTEN SUBMISSION ON BEHALF OF THE CLAIMANT]

- ON BEHALF OF THE CLAIMANT

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TABLE OF CONTENTS

TABLE OF CONTENTS………………………………………………

LIST OF ABBREVIATIONS…………………………………………..

INDEX OF AUTHORITIES……………………………………………

STATEMENT OF JURISDICTION……………………………………

LIST OF CASES………………………………………………………..

STATEMENT OF FACTS……………………………………………...

ISSUES RAISED………………………………………………………..

SUMMARY OF ARGUMENTS………………………………………..

ARGUMENTS ADVANCED……………………………………………

PRAYER…………………………………………………………………

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LIST OF ABBREVIATIONS
S.NO. Abbreviations used

1. AIR ALL INDIA REPORTER

2. SC SUPREME COURT

3. SCC SUPREME COURT CASES

4. Raj RAJASTHAN

5. LLN LABOUR LAW NOTES

6. HC HIGH COURT
7. LLJ LABOUR LAW JOURNAL

8. Mad Madras
9. Guj Gujarat

INDEX OF AUTHORITIES

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STATUTES REFERRED
 CONSTITUTION OF INDIA, 1950

 INDUSTRIAL DISPUTES ACT, 1947

LIST OF BOOKS REFERRED

 Avtar Singh, Harpreet Kaur, Introduction to Labour and Industrial Law, 1st Edition (2017).

 Goswami. V.G. – Labour and Industrial Laws, 8th Edition.

 Suresh C Srivastava, Industrial Relations and Labour Laws, 6th Revised Edition (2012)

DATABASE
 SCC ONLINE

 INDIAN KANOON

 JSTORE

 LIVE LAW

LIST OF CASES

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1. Balwant Rai Saluja v. Air India, (2014) 9 SCC 407

2. Bai Shakri v. New Maneckchowk Mills Co. Ltd., (1962) 4 FLR 369
3. Vishal Jeet v. Union of India, (1990) SCR 2 861
4. Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343
5. Dr. Janak Kantimathi v. Murlidhar Eknath Masane , (2002) 2 CPR 138
6. Hunter v. Hanley, (1955) SLT 213
7. Poonam Verma v. Ashwin Patel, AIR (1996) SC 2111
8.

STATEMENT OF JURISDICTION

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The Claimant that is the Trade Union of Bawana Industry most respectfully submits to the jurisdiction of the
Hon’ble Labour Court, District Ramnagar which has been constituted in pursuant to Section 7 of the Industrial
Disputes Act, 1947 1 for resolution of industrial dispute between the claimant and the respondent industry.

Section 7(1) of the Industrial Disputes Act, 1947 provides as under:

“The appropriate Government may, by notification in the Official Gazette, constitute one or
more Labour Courts for the adjudication of industrial disputes relating to any matter specified
in the Second Schedule and for performing such other functions as may be assigned to them
under this Act”.

STATEMENT OF FACTS

1
The Industrial Disputes Act, 1947 (Act No. 14 of 1947)

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Fatima w/o Ibrahim Ali Khan being resident in District Ramnagar in the state of Uttar Bharat was employed in
Bhawana Industry as a labourer since last three years. Bawana industry was one of the most successful factories
in Uttar Bharat and contributes to the economic welfare of the country. The industry is involved in dealing with
food items and is classified as essential services. Fatima who was employed in the industry since last three
years was not paid her minimum wages and was not confirmed. Her supervisor Mr. Shyam on 17.11.2023
Instructed her to bring some wheat bags inside the factory from outside. She was two months pregnant at that
time and due to this, she requested her supervisor to assign her some other work as the doctor had advised her
not to lift heavy loads. However, her supervisor became adamant and informed her that it was an order from the
superiors and she might lose her job for disobeying their orders. She was forced to lift the bag and continued
with her work in absence of any other alternative. Around 4:45 PM she felt a sharp pain around her abdomen
and approach the dispensary of the factory where the trainee doctor gave her the option of either taking some
pain killer tablets (though the trainee doctor was aware about the bad effects of pain killers on pregnant women)
or advised her to take rest of one hour. However, Fatima took two tablets and continued with her work till 8 pm
as her supervisor instructed her to do so.

Upon the reaching her residence, the abdominal pain became unbearable and she was taken to the hospital by
her husband and mother-in- law where she was examined by the gynaecologist and later admitted in the
hospital. A miscarriage took place and the reason opined for the same by the gynaecologist was the combined
effect of lifting heavy load and taking pain killers pills at the dispensary. A month after the second miscarriage,
she was divorced by her husband who accused her that she couldn’t bear a child. After her full recovery, she
reported to the work on 10.12.2023. Her supervisor informed her that she had been replaced and her services
were not required anymore. She was not paid dues as per Payment of Wages Act, 1936. The news of this
misfortune reached the registered Trade Union in the Bawana Industry. The Trade Union called an emergency
meeting and decided to hold a silent strike on the premises of the factory. The workers went on strike and the
negotiations, between the management and the Trade Union failed. Management decided on “Lock Out” of
Factory. Thereafter, Trade Union came to know that Fatima was given pain killer pills by the doctor of factory
dispensary even being aware that she was pregnant. Some Union members got agitated by this gross violation
of labour laws. Next day, some angry union members started throwing stones at the bungalow and office of
owner of factory, Mr. Adhinath. They broke the windows of his office. Adhinath got agitated. He had
connections with the regional ruling Political Party. He knew the President of that party. Mr. Adinath hired
some Gunda elements and bouncers and attacked the workers of Trade Union by beating them with lathis and
sticks. The Trade Union filed for claim before the Labour Court.

ISSUES RAISED

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1) Whether Fatima is entitled for the minimum wages? Whether non-payment of dues can be challenged
under the Payment of Wages Act, 1936?

2) Whether the strike by the workers and lockout by the employer is justified?

3) Whether Fatima is entitled for any benefits under the Factories Act, 1948? Whether Fatima, who was
working in industry for 3 years, can be denied the rights as defined u/s 9 of The Maternity Benefit Act,
1961 (i.e. leave for miscarriage) & then financial assistance?

4) Whether Fatima has the right to claim compensation for the injury caused to her under Employees
Compensation Act? Whether there has been negligence on part of the trainee doctor of the dispensary of
the factory by giving pain killer pills which further accelerated the process of miscarriage. Can the
employer be made liable for the same?

SUMMARY OF ARGUMENTS

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1.

2.
3.
4. Fatima is entitled for compensation for injury caused in the course of employment and injury has
been caused by the negligence of the trainee doctor for which the employer can be held liable

There was an existence of an employer-employee relationship between the respondent industry and Fatima who
was working as a labourer in the respondent industry for the past 3 years. The injury took place in the course of
employment due to the work assigned to the victim and the negligence by the trainee doctor who offered pain
killers to Fatima despite being aware of the negative effects of the medicine on pregnant women. The employer
was vicariously liable for the acts of the supervisor and the trainee doctor. Since, the factory came under the
ambit of Employees State Insurance Act, 1984 and was governed by the Factories Act, 1948, Fatima was
entitled to seek compensation from the respondent and the doctor was liable for negligence.

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ARGUMENTS ADVANCED

That Fatima has the right to claim compensation for the injury caused to her under Employees
Compensation Act, 1923. That there has been negligence on part of the trainee doctor of the dispensary
of the factory for giving her painkillers which further accelerated the process of miscarriage and the
employer is liable for the same

41. Existence of employer-employee relationship

The claimant humbly submits before the Hon’ble Court that there existed an employer-employee relationship
between the respondent and Fatima who was working as a labourer in the respondent industry for the past 3
years. In Balwant Rai Saluja v. Air India 2, the Hon’ble Supreme Court of India laid down the test of complete
administrative control in order to determine the existence of the employer-employee relationship and also laid
the relevant factors to considered to determine the existence of such relationship: (i) who pays the workers (ii)
who pays the salaries/remunerations (iii) who has the authority to dismiss (iv) who can take disciplinary action
(v) whether there is continuity of service (vi) extent of control and supervision. Since the respondent industry
exercised direct and effective control over labourer, Fatima, it can reasonably be made out that they both shared
an employer-employee relationship and thus she was entitled for all such rights and benefits as provided under
the various Labour Law legislations.

4.2 Injury took place in the course of employment

The claimant humbly draws the attention of the Hon’ble Court to the fact that the injury took place in the course
of employment. In Bai Shakri v. New Maneckchowk Mills Co. Ltd 3, the principles governing whether the
injury arose out of and in the course of employment were laid down: (i) there must be a causal connection
between the injury and the accident and the work done in the course of employment, (ii) the onus is upon the
applicant to show that it was the work and the resulting strain which contributed or aggravated the injury (iii)
where the evidence is balanced, if the evidence shows a greater probability which satisfies a reasonable man
that the work contributed to the causing of the personal injury, it would be enough for the employee to succeed.
The victim, Fatima was instructed to lift heavy loads by her supervisor, Mr. Shyam even when she informed the
supervisor about her pregnancy and apprised him about the advice of the doctor to not lift heavy loads in such a
condition. The supervisor, however threatened her of dire consequences and made her undertake such tasks
which posed an imminent danger to her health condition. The very nature of work which was assigned to her by
the supervisor even when he was not oblivious of her health condition clearly reflected the gross negligence and
the failure on part of the respondent to ensure adherence to the labour laws implemented as social welfare
2
(2014) 9 SCC 407
3
(1962) 4 FLR 369

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legislations. The immediate act which led to or resulted in the accident had causal relation with the performance
of the duties which Fatima carried out on the basis of the work assigned to her by the supervisor despite her
pleadings for assignment of other work which would not have detrimental effects on her pregnancy. Further, the
lifting of the wheat bags resulted in pain around her abdomen which coupled with the negligence of the trainee
doctor resulted in Fatima’s miscarriage.

4.3 Contravention of the Constitution of Uttar Bharat and Labour Laws by the Respondent

The claimant humbly submits that the Constitution of Uttar Bharat enshrine the values of social, economic and
political justice, dignity and well-being of the citizens and guarantees to its citizens certain Fundamental Rights
in order to ensure a dignified life and equality before law. These Fundamental Rights are guaranteed to all the
citizens and are necessary for the harmonious development of life and personality. Article 23 of the
Constitution prohibits any form of exploitation of the persons by the State or private individuals. In Vishal Jeet
vs Union of India4 the Hon’ble Supreme Court reiterated that “the right to receive timely and fair wages is an
essential component of the prohibition of forced labour under Article 23. The delayed payment or non-payment
of wages could be considered as forced labour violating the constitutional rights of the workers”. The Court
may draw its attention to the fact that the labourer, Fatima was not being paid her minimum wages since last 3
years and was working under exploitative and hazardous conditions. The working hours and conditions of the
employment in the industry were not in conformity with the most basic labour rights and made the workers
vulnerable to several health issues both physical and mental. The respondent industry miscarried in providing to
its workers just and humane working conditions by making them work for 10 hours on a daily basis. This
clearly reflects the unfair labour practices which the industry was engaged in and its reluctance in abiding by
the constitutional values.

The Factories Act, 1948 lays down that no adult worker should work for than nine hours in a day, and even
after approval from the Chief Inspector, such time period cannot be extended beyond 48 hours in a week. The
claimant finds it pertinent to mention that the respondent industry made Fatima work for more than 10 hours on
17.11.2023 i.e. the day on which the injury took place. The respondent industry also acted in breach of Section
66(1) (b) of the Factories Act, 1948 which provides that no woman shall be required or allowed to work in any
industrial premise except between 6 a.m. and 7 p.m.

4.4 Statutory right to claim compensation for personal injury

It is humbly submitted that the word ‘personal injury’ being wider than bodily injury also includes all physical
injuries which may be caused by an accident arising out of and in the course of employment. It also includes all
mental strains or mental tension or mental illness or psychological diseases, provided such mental conditions
have arisen by accidents arising out of and in the course of employment. Personal injury includes any harmful
change in the body. It need not involve physical trauma, but may include such injuries as disease, sunstroke,

4
(1990) SCR (2) 861

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nervous collapse, traumatic neurosis, hysterical paralysis and neurasthenia. It may be external, or may be
internal.5

The Employees Compensation Act,19236 is a piece of social security and welfare legislation. The law was
enacted with a dominant purpose. The main objective of the Act was to impose an obligation upon the
employers to pay compensation to workers for accidents arising out of and in the course of employment.
Section 3 of the Employees Compensation Act,1923 provides for Employer’s liability in cases of personal
injury. For an employer to be liable, the following conditions should be fulfilled-

“a. The workman must have sustained personal injury

b. The personal injury must have been caused by an accident;

c. The accident may have arisen out of and in the course of employment; and

d. The personal injury caused to the workman must have resulted either in the total or partial disablement of
the workman for a period exceeding three days or it must have resulted in the death of the workman.”7

In Raj Kumar vs Ajay Kumar 8, it was observed that “the object of awarding damages is to make good the loss
suffered as a result of wrong done as far as money can do, in a fair, reasonable and equitable manner. The court
or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or
fancy.” The miscarriage of Fatima caused due to lifting of heavy wheat bags with the coupled effect of
painkillers caused severe mental strain for her and the consequent pronouncement of triple talaq by her husband
deteriorated her mental condition even further. The causal link clearly existed between the nature of the work
and the injury which resulted in the course of employment. The miscarriage caused both physical and mental
injury to Fatima which has entitled her to claim compensation from the employer as due to the miscarriage, she
was unable to report to work from 18-11-2023 (the day after the date of accident) till 10-12-2023.

Section 38 of Employees State Insurance Act, 1948 provides that all employees in factories or establishment to
which this Act applies shall be insured in the manner provided by this Act. Under Section 46 of the Act, the
insured woman in case of confinement or miscarriage or sickness arising out of pregnancy is entitled to get
periodical payments. Based on a plain reading of this Section itself, the workman Fatima becomes entitled to
get payment for the period of leave after her miscarriage that took place in the course of employment.

5
Larsen’s Workmen’s Compensation Law, 2009, Vol.I, 613
6
The Employees Compensation Act, 1923 (Act No. 8 of 1923)
7
Personal Injury Under Employees Compensation Act, 1923- Judicial Interpretation, www.manupatra.com
(Last Visited: 02-05-2024)
8
(2011) 1 SCC 343

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4.6 Negligence of the Trainee Doctor

Negligence will simply be understood as a breach of legal duty to care. 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 such treatment. The claimant humbly invokes
before the Court the principle of Res Ispa Loquitur , as the failure on part of the trainee doctor to advise Fatima,
an uneducated labourer hailing from a weaker economic background as to the negative impact of taking
painkillers during the course of pregnancy is sufficient to prove negligence and as per the rational thinking of
the claimant does not require any other proof beyond the miscarriage of the victim which took place as a result
of consumption of the prescribed painkillers. In Dr Janak Kantimathi v. Murlidhar Eknath Masane 9, it was
observed by the National Consumer Disputes Redressal Commission that:

“The principle of Res Ipsa Loquitur comes into operation only when there is proof that the
occurrence was unexpected that the accident could not have happened without negligence and
lapses on part of the doctor and the circumstances conclusively show that the doctor was
negligent”.

In Hunter v. Hanley10, it was observed that a doctor can be held liable for negligence only if it is proved that
he/she was guilty of a failure that no doctor with ordinary skills would commit when acting with reasonable
care. In Poonam Verma v. Ashwin Patel11, the Supreme Court observed that “the standard of care a professional
is expected to exercise is that of those in the speciality or profession involved irrespective of the fact that the
doctor is inexperienced or a student etc.” The inadvertence on part of the trainee doctor of the dispensary in the
factory to inform Fatima about the detrimental effect of painkiller on pregnant women cannot be regarded mere
lack of due attention and skill but rather as a negligence and incompetence by disregard for the life and safety
of the patient which cannot under any circumstance be considered as proper by the trained body of medical
professionals.

4.7 Vicarious Liability of the Employer

The claimant humbly submits before the Hon’ble Court that the doctrine of vicarious liability makes the
employer responsible/liable for the acts of the employee. Vicarious liability is when a supervisory party is liable
for the negligent actions of a third party for whom they are responsible. The supervisor of Fatima was an
employee of the respondent as well as the trainee doctor who was employed in the industry for the welfare of
the workers as required by Section 45 of The Factories Act, 1948. Hence, the claimant humbly prays that the
Employer be made liable to pay the compensation for injury caused to Fatima in the course of employment and
due to the negligence of the doctor.

PRAYER
9
2002 (2) CPR 138
10
(1955) SLT 213
11
AIR 1996 SC 2111

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(i)

(ii)

(iii)

(iv) Grant compensation to Fatima for the injury caused to her in the course of employment and hold employer
and the trainee doctor liable for the miscarriage of Fatima

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