TEAM CODE: POLLOCK

SARASWATHY LAW COLLEGE, TINDIVANAM

2nd NATIONAL MOOT COURT COMPETITION, 2024

IN COLLABORATION WITH LEGAL WOLF ASSOCIATES

BEFORE THE HON`BLE SUPREME COURT OF LEMURIA

THE CASES CONCERNING THE CONSTITUTIONAL VALIDITY OF LOCK

DOWN DURING COVID-19

WRIT PETITION NO. [_____] OF 2024

THE SOCIETY FOR NOBLE PRINCIPLES OF LAW & LITERATURE

(PETITIONER)

CHARLES, ARAVIND, BASHIR

(IMPLEADED CO PETITIONERS)

v.

THE UNION OF

LEMURIA

(RESPONDENT)

UNDER ARTICLE 136,32, 139A OF THE CONSTITUTION OF LEMURIA

“MEMORANDUM ON BEHALF OF THE PETITIONER(S)”

 2nd NATIONAL MOOT COURT COMPETITION, 2024, SARASWATHY LAW
COLLEGE, TINDIVANAM.

TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................................2

INDEX OF AUTHORITIES..........................................................................................4

STATEMENT OF JURISDICTION...............................................................................9

STATEMENT OF FACTS............................................................................................10

STATEMENT OF ISSUES...........................................................................................12

SUMMARY OF ARGUMENTS...................................................................................13

WRITTEN PLEADINGS...............................................................................................17

I. WHETHER THE TERMINATION ORDER PASSED AGAINST BASHIR IS

LIABLE TO BE SET ASIDE?

1.1. Violation of Natural Justice:

1.2. No Proper Inquiry Conducted:

1.3. Not following Standing Orders for termination (under the Industrial Employment

(Standing Orders) Act, 1946):

II. WHETHER THE ORDER OF DISMISSAL PASSED AGAINST ARAVIND IS

SUSTAINABLE IN LAW?

2.1. Bona fide Intention of Aravind:

2.2. Discriminatory action:

2.3. Violation of Natural Justice:

2.4. Failure to Prove Allegations on Aravind:

2 5. No necessary of dismissal for conviction under sec 223:

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III. WHETHER THE ORDER OF CONVICTION UNDER SECTION 223 OF THE

LEMURIAN PENAL CODE IS UNCONSTITUTIONAL, BEING VIOLATIVE OF

THE RIGHT OF CHARLES AND OTHER OFFICE-BEARERS OF THE TRADE

UNION?

3.1. The Unconstitutionality of the Order Restricting Freedom of Movement and Assembly

under the Disaster (Remedial Measures) Act:

3.2. No need for Arbitrary arrest:

3.3. Urgent Need of meeting to Address Essential Workers' Grievances Amidst the

Lockdown:

3.4. Importance of essential workers under Essential Services Manufacturing Act,1981:

3.5. Meeting was an exception of Ministry of Home Affairs order:

IV. WHETHER RIGHT TO LIFE AND LIBERTY OF THE CITIZENS OF LEMURIA

INCLUDING THEIR RIGHT TO HEALTH GUARANTEED UNDER THE

CONSTITUTION HAS BEEN VIOLATED BY THE LOCKDOWN ORDER

DATED 24.03.2024?

4.1. Arbitrary exercise of power:

4.2. Violation of Fundamental Rights (Right to Life and Liberty):

4.3. Economic Hardship and Violation of the Right to Livelihood:

4.4. Violation of right to health:

PRAYER...........................................................................................................................35

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INDEX OF AUTHORITIES

International convention and resolution: -

1. World Health Organisation (WHO)

2. International Health Regulations (IHR)

3. International Labour Organization (ILO)

Legislations and Statutes: -

1. The Constitution of India, 1950.

2. Industrial Dispute act, 1947.

3. Industrial Employment (Standing Orders) act, 1946.

4. Indian Penal Code, 1860.

5. Industrial Relations Code, 2020.

6. Industrial Employment (Standing Orders) Central Rules, 1946

7. Bharatiya Nyaya Sanhita, 2023.

8. Code of Criminal procedure, 1973.

9. Bharatiya Nagarik Suraksha Sanhita, 2023.

10. Disaster management act, 2005.

11. Epidemic diseases (prevention and cure) act, 1897.

12. Essential services manufacturing act, 1981.

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Books referred: -

1. Constitution of India by V.N Shukla.

2. Indian Constitutional law, M.P. Jain (8th edition)

3. Criminal law, PSA Pillai 14th edition

4. The Code of Criminal Procedure, Ratanlal and Dhirajlal, (23rd edition)

5. Labour and Industrial Laws by PK Padhi

Online sources: -

1. www.blog.ipleaders.com

2. www.eprocure.com

3. www.indian.kanoon.com

4. www.indiancode.nic.in

5. www.livelaw.com

6. www.manupatra.com

7. www.scconline.com

8. www.supremecourtcases.com

9. www.supremecourtobserver.com

10. www.lawlex.com

11. www.lawsisto.com

12. www.supremecourtjudgement.com

13. www.highcourtjudgement.com

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CASES REFERRED: -

S.NO. CASE TITLE CITATION

1. Baldev Singh Gandhi v. State of Punjab AIR 2002 SC 1124

2. Bharat Heavy Electricals ltd. v. State of UP AIR 2003 SC 3024

3. D.K. Basu v. State of West Bengal AIR 1997 SC 610

4. D.K. Yadav v. J.M.A. Industries 1993 SCR (3) 930

5. Indian Medical Association v. Union of India Writ petition (civil)

no.645/2022

6. Indian oil Corporation ltd. v. Ashok Kumar Arora AIR 1997 SC 1030

7. K.K. Verma v. Union of India AIR 1954 BOM 358

8. K.S. Radhakrishnan v. State of Kerala 2008 (2) KLJ 68

9. Kameshwar Prasad v. State of Bihar 1962 AIR 1166

10. M.L. Singla v. Punjab National Bank & other AIR 2018 SC 4668

11. Paschim Bangha Khet Mazdoor Samity v. State of West 1996 SCC (4) 37

Bengal

12. People’s Union for Civil liberties v. Union of India AIR 1997 SC 568

13. Srinivasa v. State of Karnataka Wr.p.no.58236/2017

14. State of Maharashtra v. R.B. Kharat 1983 AIR 296

15. Suresh Koshy George v. The University of Kerala 1969 AIR 198

16. Tata Engineering and Locomotive co. ltd. v. Their 1981 AIR 2163

workmen

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LIST OF ABBREVATIONS

S.NO ABBREVIATION FULL FORM

1. & And

2. AIR All India Reporter

3. Anr. Another

4. Art. Article

5. BNS Bharatiya Nyaya Sanhita

6. BNSS Bharatiya Nagarik Suraksha Sanhita

7. CJ Chief Justice

8. Co. Co-operation

9. Co. Corporation

10. Const. Constitution

11. COVID Coronavirus Disease

12. Cr.P.C Code Of Criminal Procedure

13. D.T.C Delhi Transport Corporation

14. E.g., Example given

15. Ed. Edition

16. HC High Court

17. Hon`ble Honourable

18. IDA Industrial Dispute Act

19. IPC Indian Penal Code

20. LPC Lemurian Penal Code

21. LR Law Reporter

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22. Ltd. Limited

23. M.S. O Model Standing Orders

24. MHA Ministry Of Home Affairs

25. No. Number

26. OR’S Others

27. PIP Performance Improvement Plan

28. PPE Personal Preventive Equipment

29. r/w Read With

30. Rep Report

31. S. No Serial Number

32. S.O Standing Orders

33. SC Supreme Court

34. SCC Supreme Court Cases

35. Sec. Section

36. U. P Uttar Pradesh

37. V. Versus

38. Vol. Volume

39. W.r.t With Respect To

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STATEMENT OF JURISDICTION

The Hon'ble Supreme Court of Lemuria has the jurisdiction to hear and decide the
present matter under Articles 136, 32, and 139A of the Constitution of Lemuria. The
grounds for establishing jurisdiction are as follows:

Article 136 (Special Leave Petition): The employer, Cauvery Health Products Limited, has
challenged the Labour Court's awards in the High Court of Podhigai. The Supreme Court
has taken up these matters after a petition for special leave was granted. Article 136 empowers
the Supreme Court to hear appeals against orders from any court or tribunal in the country.

Article 32 (Constitutional Remedies): The Society for Noble Principles of Law & Literature,
along with Charles, filed a Writ Petition directly in the Supreme Court under Article 32,
challenging the lockdown order dated 24.03.2024. They claim a violation of the right to life
and liberty (Article 21) and the right to health, guaranteed by the Constitution. This allows
individuals to approach the Supreme Court directly to enforce their fundamental rights.

1
Article 139A 2(Transfer of Cases): The Hon’ble Supreme Court, under Article 139A, has
the power to transfer cases from one High Court to another or to itself if these involve the same
or substantially the same questions of law. In this case, Charles informed the Supreme Court
of the overlapping issues between the Labour Court’s matters (currently pending in the High
Court of Podhigai) and the petition challenging the lockdown. Exercising its authority under
Article 139A, the Supreme Court transferred the Writ Petitions from the High Court to itself
for a unified resolution.

Since both the writ petitions and the employment-related cases share common legal and
constitutional questions particularly concerning the impact of COVID-24 and the ensuing
lockdown the Supreme Court has rightly consolidated them for joint adjudication under its
jurisdictional authority.

Thus, the Supreme Court has jurisdiction to adjudicate the present matters under Articles
136, 32, and 139A of the Constitution of Lemuria.

1
Ins. by the Constitution (Forty-second Amendment) Act, 1976, s. 24 (w.e.f. 1-2-1977).
2
Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 21, for cl. (1)
(w.e.f. 1-8-1979).
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STATEMENT OF FACTS

1. Background of Lemuria:

Lemuria is a developing country in Asia, a UN member, with a federal constitution aligned

with India’s laws. The Podhigai State government adheres to central laws."Cauveri Health

Products Limited," a state-owned enterprise, manufactures pharmaceutical products.

2. Employment Structure:

The establishment has Standing Orders aligning with the Model Standing Orders, with

specific additions regarding probation and misconduct. Probation for new hires lasts one

year, extendable based on performance, with conditions for termination. Misconduct is

defined in relation to criminal law and company policies.

3. Incident on 16.02.2024:

Aravind (permanent workman, Union President) and Bashir (probationer, Union General

Secretary) are key figures in a workers' union. Narmada is a supervisory employee

managing the store section. Narmada witnessed Aravind and Bashir attempting to take free

samples of sanitizer and masks. They claimed it was normal practice for the employer to

distribute these samples by mid-month. Narmada reported the incident, expressing fear for

her job.

4. Charges and Domestic Enquiry:

Charges of theft were framed against Aravind and Bashir. They denied the allegations. The

enquiry was adjourned due to the workmen wanting to engage their union’s vice

president for defence.

5. COVID-24 Pandemic:

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A COVID-24 outbreak led to strict measures from the government, including a nationwide

lockdown and social distancing guidelines, impacting business operations. A local order

prohibited gatherings of more than five people, effective from March 25, 2024.

6. Union Meeting:

In April 2024, Aravind and Bashir held a union meeting, violating the District Magistrate’s

order, leading to their conviction under Section 223 of the Lemurian Penal Code.

7. Termination of Employees:

On April 25, 2024, Bashir's charges were dropped, but he was terminated for

performance issues as a probationer. Aravind received a notice for termination based on

misconduct and unlawful assembly. He claimed victimization due to union activities and

was dismissed.

8. Legal Challenges:

Both employees challenged their terminations in the Labour Court, which ruled in their

favour, finding violations of natural justice. The employer filed writ petitions in the High

Court against these rulings.

9. Writ Petitions and Societal Impact:

A registered society filed a writ petition against the lockdown order, claiming it infringed

on citizens' rights, especially the vulnerable populations. Charles, a co-petitioner,

challenged his conviction for violating the gathering order.

10. Transfer of Cases:

The Supreme Court of Lemuria transferred the pending writ petitions from the High Court

for common disposal, addressing the interlinked issues of employment, rights violations,
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and public health.

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STATEMENT OF ISSUES

ISSUE-1

Whether the termination order passed against Bashir is liable to be set

aside?

ISSUE-II

Whether the order of dismissal passed against Aravind is sustainable in law

?

ISSUE-III
Whether the order of conviction under section 223 of the Lemurian Penal Code is
unconstitutional, being violative of the right of Charles and other office-bearers of
the trade union?

ISSUE-IV
Whether right to life and liberty of the citizens of Lemuria including their right to
health guaranteed under the Constitution has been violated by the lockdown
order dated 24.03.2024?

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SUMMARY OF ARGUMENTS

I. Whether the termination order passed against Bashir is liable to be set aside?

It is humbly submitted before the hon`ble Supreme Court of Lemuria the termination order

passed against Bashir should be set aside as it is unjust, arbitrary, and violates principles of

natural justice. Bashir was terminated without a fair inquiry, as key evidence and witnesses

were missing during the domestic investigation. His role as General Secretary of the trade union

raises concerns about bias and victimization for his union activities, violating Section 5(f) of

the Industrial Disputes Act, 1947.

i. The employer failed to conduct a proper inquiry, citing the COVID-24 pandemic, which

denied Bashir the opportunity to defend himself.

ii. Citing cases like Suresh Koshy George v. University of Kerala and D.K. Yadav v.

J.M.A. Industries Ltd., terminating an employee without following due process or

providing a fair hearing violates fundamental rights under Article 21 of the Constitution

of Lemuria.

iii. Furthermore, the Industrial Disputes Act, 1947, protects blue-collar workers from

termination without notice or compensation, a right which was denied to Bashir.

iv. The employer also failed to follow the Industrial Employment (Standing Orders)

Act, 1946, which requires warnings, a performance improvement plan, and a

domestic inquiry before termination.

Considering these legal violations, Bashir’s termination is unlawful and should be revoked.

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II. Whether the order of dismissal passed against Aravind is sustainable in law?

It is humbly submitted before the hon`ble Supreme Court of Lemuria that the dismissal of

Aravind is being challenged as unsustainable in law. Aravind contends that taking free samples

of hand sanitizers and face masks was a common practice within the establishment, and he

believed he was entitled to these items based on past practices, creating a reasonable

expectation among employees.

i. Aravind also raises the issue of discriminatory treatment, noting that his co-worker

Bashir had similar charges recalled while he faced dismissal. This suggests that the

disciplinary action may have been motivated by Aravind's role as President of the

Workers Union, rather than legitimate misconduct.

ii. Aravind's conviction under Section 223 of the Lemurian Penal Code, concerning

unlawful assembly, does not relate directly to any misconduct justifying termination.

His actions were in the context of trade union activities, which are protected under

labour laws. The Labour Court found the dismissal disproportionate, emphasizing

that disciplinary actions must be proportionate to the misconduct and should not

penalize union activities.

iii. The dismissal process lacked proper procedures, as the employer did not provide

Aravind with a fair chance to defend himself, violating the doctrines of just cause and

fair procedure. The witness, Narmada, did not appear for the inquiry, and the

employer did not adequately consider Aravind’s rights during the process. The lack

of a proper investigation into the theft allegations further indicates procedural lapses.

From the light of these arguments, the order of dismissal against Aravind is deemed not

sustainable in law.

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III. Whether the order of conviction under section 223 of the Lemurian penal code

is unconstitutional, being violative of the right of Charles and office bearers of

the trade union?

It is humbly submitted before the hon`ble Supreme Court of Lemuria that the conviction of

Charles and other trade union leaders under Section 223 of the Lemurian Penal Code is argued

to be unconstitutional and a violation of their rights. The lockdown order issued under the

Disaster (Remedial Measures) Act is considered an excessive exercise of power, infringing

on Articles 14, 19, and 21 of the Lemurian Constitution by failing to protect vulnerable

populations, including workers.

i. The selective enforcement of the lockdown against union leaders suggests an intent

to suppress trade union activities rather than genuine public health enforcement.

Judicial precedents, like D.K. Basu v. State of West Bengal, emphasize the need for

procedural safeguards during arrests, which were not observed in this case.

ii. Charles' participation in a meeting to discuss health and safety concerns for essential

workers was legitimate, especially given the factory's failure to implement proper

COVID-24 protocols. The meeting aligns with the Essential Services

Manufacturing Act of 1981, which allows essential workers to organize and

advocate for their rights. Furthermore, the meeting is justified under the Ministry

of Home Affairs Order No. 100, which exempted medical establishments from

closure, thereby allowing discussions critical for maintaining essential services.

From the light of these arguments that the conviction under Section 223 is seen as legally

unjustified, unconstitutional and violates the rights of Charles and the trade union leaders.

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IV. Whether the right to life and liberty of the citizens of India including their right to

health guaranteed under the constitution has been violated by the lockdown order

dated 24.03.2024?

It is humbly submitted before the hon`ble Supreme Court of Lemuria that the lockdown

order issued on March 24, 2024, violates the citizens' constitutional rights to life, liberty, and

health. The order, which mandated a blanket shutdown without ensuring mandatory medical

examinations for COVID-24, is characterized as an arbitrary exercise of power that particularly

affected vulnerable populations, including daily wage earners and self-employed individuals,

stripping them of their income and compromising their right to health.

i. The restrictions on movement imposed by the lockdown severely limited personal

liberties without a clear public health strategy or provisions for access to essential

services like healthcare and food, rendering the measures unconstitutional. The

prolonged nature of the lockdown led to significant economic hardships for

marginalized groups, leaving them without financial support or safety nets during this

critical time.

ii. The right to health, integral to the right to life as interpreted by the Supreme Court, was

compromised due to the lack of adequate justification for such an extreme measure.

The absence of a data-backed public health strategy further undermined the legality

of the lockdown.

From the light these arguments, the lockdown order is challenged as unconstitutional for

infringing upon the rights to life, liberty, and health of Lemuria's citizens.

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WRITTEN PLEADINGS

1. Whether the termination order passed against Bashir is liable to be set aside?

It is humbly submitted before the hon’ble Supreme Court of Lemuria that the termination order

should be set aside. The petitioner, Bashir, challenges the termination order dated 25.04.2024

issued by Cauveri Health Products Limited, asserting that it is unjust, arbitrary, and violates

principles of natural justice.

1.1. Violation of Natural Justice:

The termination of Bashir was executed without a fair inquiry. The Labour Court found

that the domestic inquiry was flawed due to the absence of key evidence and witnesses,

particularly Narmada, who failed to appear. This lack of due process violates principles

of natural justice, as established in case law such as Srinivasa v. State of Karnataka.

Unitary bias:

Bashir's role as General Secretary of the trade union raises concerns about potential

victimization for his union activities.

The termination of Bashir was an absolute breach of the section 5(f) of the fifth schedule

mentioned in the Industrial Dispute Act, 1947.

From the legal maxim Nemo judex in causa Sua3, (The Rule Against Bias),

Definition: No one should be a judge in their own case.

 This principle emphasizes that decision-makers in a disciplinary or employment

related matter must act without personal bias or interest.

 The individual or committee making the decision should be impartial.

3
https://www.iilsindia.com/blogs/analysis-priniciple-nemo-judex-causa-sua

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 Application in Labour Law: The employer or the authority conducting an inquiry

or making decisions regarding employee discipline, suspension, or termination

must not have a personal or vested interest in the outcome.

 Decisions should be free from favouritism or prejudice, ensuring that all relevant

facts are evaluated objectively.

 If an employer has a personal bias or stands to benefit from a decision, the

fairness of the process is compromised, and the decision may be challenged

legally.

Thus, the petitioner challenges the unjust termination legally.

1.2. No Proper Inquiry Conducted:

The termination order was issued without conducting a fair and proper inquiry. The

employer abruptly recalled the charges of non-satisfactory of work framed against

Bashir, stating that the domestic inquiry could not be continued due to extraordinary

circumstances (COVID-24 pandemic). This violates the principle of natural justice, as

Bashir was denied an opportunity to defend himself and present his case.

In the case of 4Suresh Koshy George vs The University of Kerala (1969): The Supreme

Court of India held that any disciplinary action taken against an employee without

following the principles of natural justice such as not giving the employee a fair hearing

was invalid. The decision highlighted the importance of a fair hearing and the prohibition

against bias in disciplinary proceedings.

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1969 AIR 198

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Failure of due process:

In the case of D.K. Yadav vs J.M.A. Industries Ltd. (1993)5

In this case, an employee was terminated without due process. The Supreme Court of India

held that even probationary employees have certain rights to fair procedure and that

termination without notice or justification violates the principles of natural justice.

The Supreme Court ruled that the right to livelihood is a part of the right to life under

Article 21 of the Constitution of India. Therefore, termination without proper inquiry or

notice amounts to a violation of fundamental rights.

The court emphasized that an employee cannot be arbitrarily terminated, even during

probation, without following due process and providing a valid reason. Employers must

respect the principles of fairness, including the opportunity for the employee to respond

to allegations, if any.

Here the procedures to terminate the Bashir was not procedurally followed according to the

rules given in above case.

1.3. Not following 6Standing Orders for termination (under the Industrial Employment

(Standing Orders) Act, 1946):

Standing orders often lay down detailed procedures for terminating employees on the

grounds of inefficiency or poor performance. These are binding on employers and typically

require the following steps:

Issuing warnings: If the employee is found to be underperforming, the employer should

issue formal warnings, either verbal or written, to give the employee a chance to

improve.

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1993 SCR (3) 930
6
https://labour.gov.in/sites/default/files/industrialemploymentstandingorders1centralrules1946.pdf

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7
Performance improvement plan (PIP): Employers may offer employees a structured plan

to improve their performance over a specified period. This step shows that the employer

has given the employee a fair chance to rectify the issue.

Domestic inquiry: If the poor performance is serious and amounts to misconduct under the

standing orders, the employer must conduct a domestic inquiry before taking disciplinary

action, including termination.

Must follow the Principles of Natural Justice: Even though poor performance is not

traditionally categorized as misconduct; the employer must ensure that the principles of

natural justice are followed before terminating an employee. This includes, giving the

employee an opportunity to improve through feedback or a performance improvement plan.

Providing a reasonable opportunity for the employee to explain their poor performance.

Documenting the entire process, including warnings, performance reviews, and any other

relevant interactions.

In the case of 8M. L. Singla v. Punjab National Bank & Others (2018): The Supreme

Court of India emphasized the importance of conducting a fair inquiry before

termination. The employer had dismissed an employee without holding a domestic inquiry,

and the court held this to be illegal.

9
Blue-collar workers:

The Industrial Disputes Act of 1947 states that an employer cannot fire an employee who

has worked for less than one year without providing notice, payment in lieu of notice,

and compensation. The amount of notice required depends on the number of employees

in the establishment. The Bashir was terminated neither notice nor compensation.

7
https://www.indeed.com/hire/c/info/pip-meaning
8
2018 LAB IC 4321
9
https://www.indiacode.nic.in/bitstream/123456789/17112/1/the_industrial_disputes_act.pdf

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From the legal maxim 10Audi Alteram Partem (The Right to a Fair Hearing):

Definition: "Hear the other side" or the right to be heard. This principle ensures that an

employee facing disciplinary action, dismissal, or any negative consequence has the right

to know the charges against them and must be given an opportunity to present their case

before any decision is made. Here, the employer denied the fair hearing right of the Bashir.

The termination of the Bashir was illegal as mentioned in the above case.

Therefore, in the light of above arguments submitted the termination order passed against

Bashir should be set aside.

10
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2. Whether the order of dismissal passed against Aravind is sustainable in law?

It is humbly submitted before the hon’ble Supreme Court of Lemuria that the order of dismissal

passed against Aravind is not sustainable in law. Aravind contends that taking free samples of

hand sanitizers and face masks was a common practice within the establishment, and he

believed he was entitled to these items based on past practices, creating a reasonable

expectation among employees.

2.1. Bona fide intention of Aravind:

The petitioner Aravind contended that it was a common practice within the establishment

to distribute free samples of products, including hand sanitizers and face masks, to

employees on or before the 15th of each month. The petitioner argued that at the time he

took the samples, the employer had not yet fulfilled this obligation, which created a

reasonable expectation among employees that they were entitled to receive these items.

In the case of State of Maharashtra v. R. B. Kharat (2008):

The court ruled that for an act to be considered theft, there must be a clear intention to

commit the act of stealing, which involves taking property belonging to another with the

intent to permanently deprive them of it.

Aravind asserted that he believed he was entitled to take the samples based on past practices

and that there was no intent to steal since these were free samples.

11
From the legal maxim Actus non-facit reum nisi mens sit rea:

Definition: Act itself does not constitute guilt unless done with a guilt

intent.

Here, Aravind does not constitute any guilt action. In the case of 12K. S. Radhakrishnan

v. State of Kerala (2006), the Supreme Court of India held that mere appropriation of

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12
1964 AIR 477

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property does not amount to theft unless there is an intention to permanently deprive the

owner of it. Aravind argues that he did not intend to permanently deprive the employer of

the hand sanitizer and masks, as he returned them when confronted by Narmada. This aligns

with the principle that intent is a crucial element in establishing theft.

2.2. Discriminatory action:

The employer recalled charges against Bashir but proceeded with those against Aravind,

indicating discriminatory treatment. This selective approach suggests that the disciplinary

action was motivated by Aravind's position as President of the Workers Union, rather

than any legitimate misconduct.

In the case of13 Indian Oil Corporation Ltd. v. Ashok Kumar Arora (2009):

In this case, the Supreme Court held that any disciplinary action taken against an employee

must not only be based on valid grounds but also must not be discriminatory in nature. The

court emphasized that if an employee is subjected to harsher treatment compared to

others in similar situations, it may amount to discrimination.

Aravind can argue that his dismissal was a result of discriminatory treatment as he faced

charges while his co-worker Bashir had the charges recalled.

In the case of 14K.K. Verma v. Union of India (1993):

This case established that disciplinary actions taken against an employee must be free from

bias, especially when the employee is involved in union activities. The court ruled that any

punitive action taken against a union leader for engaging in legitimate union activities could

be seen as discriminatory.

Aravind's position as President of the Workers Union places him under protection from

retaliatory actions for his union involvement.

13
1997 AIR (SC) 1030
14
AIR1954BOM358

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2.3. Violation of Natural Justice:

Aravind's dismissal violated the principles of natural justice. The Labour Court found

that he was not given a fair opportunity to defend himself during the disciplinary

proceedings. The employer failed to provide a proper hearing, which is essential in any

disciplinary action against an employee, especially a permanent workman like Aravind.

The Labour Court determined that Aravind's dismissal violated principles of natural justice

due to the lack of a fair hearing and opportunity to defend himself. Without a completed

inquiry and proven allegations, any disciplinary action taken against him is inherently

unjust.

Lack of procedures on dismissal:

In the dismissal of Aravind, there are many lapses of procedures and unitary bias.

In the Doctrine of Just Cause:

The doctrine of just cause requires that an employer must have a legitimate reason

supported by evidence before terminating an employee. If the Labour Court found that

the employer did not have just cause, the termination could be deemed unjustified.

Doctrine of Fair Procedure: Employers must follow fair procedures, including

providing a proper enquiry before termination. If the Labour Court found procedural

lapses, this doctrine supports the Court’s decision to set aside the termination.

The witness Narmada quit her job and didn't appear for the enquiry. The employer arranged

for an urgent meeting of all executives and supervisory employees to review the

situation. Based on the views expressed by them, the employer concluded that the

domestic enquiry could not be continued in the normal manner, particularly in view of

the special problems caused by the Corona virus. But he didn't not take in consideration of

equal right of hearing for Aravind. The employer also sent notice dated 25.04.2024 to

Aravind asking him to

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show cause as to why his services should not be terminated for (1) the charges of

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misconduct framed against him for theft of property of the establishment and (2) For the

deemed misconduct of unlawful assembly on 10.04.2024 in violation of the order of the

District Magistrate dated 24.03.2024 for which he was convicted by the Court under

Section 223 of the Lemurian Penal Code. The crime of theft hasn't been investigated with

a proper enquiry but was made by assumptions of employer.

In this case, the employer failed to follow the mandated disciplinary procedures, such as

providing Aravind with a fair opportunity to defend himself and not adhering to the

principles of natural justice.

2.4. Failure to Prove Allegations on Aravind:

The charges framed against Aravind for theft were based on an incident involving free

samples (hand sanitizers and masks) that were not for sale. Aravind argues that since

these items were typically distributed to employees and were not for sales, there was no

financial loss to the employer. This lack of tangible evidence undermines the employer's

claims of misconduct.

The employer's failure to present evidence during the inquiry is a critical point. The Labour

Court noted that although the employer expressed willingness to prove the charges through

oral and documentary evidence, permission was denied. This lack of opportunity for the

employer to substantiate its claims further indicates that the allegations against Aravind

were not proven.

2.5. No necessary of dismissal for conviction under sec 223:

The conviction under Section 223 of the Lemurian Penal Code for unlawful assembly does

not relate directly to any misconduct that would typically justify termination. The assembly

was conducted in the context of trade union activities, which are protected under labour

laws. Therefore, the nature of the conviction should be considered when determining its

relevance to employment.
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Dismissal from employment is a severe penalty and should only be imposed when the

misconduct is grave enough to undermine the trust and confidence between employer and

employee. In cases where the offense does not significantly impact job performance or

workplace integrity, lesser disciplinary actions may be more appropriate. The Labour Court

found that Aravind's actions were related to his role as a trade union leader, suggesting that

dismissal was disproportionate to the alleged misconduct.

15
Bharat Heavy Electricals Ltd. v. State of U.P. (2003): In this case The Supreme Court

ruled that disciplinary action must be proportionate to the misconduct and that mere

conviction for a criminal offense does not automatically justify dismissal if it does not

pertain directly to job performance. Aravind’s conviction under Section 223 was related to

participating in an assembly for trade union activities, which should not warrant

dismissal unless it directly impacts his ability to perform his job. The Labour Court found

that the dismissal was disproportionate to the alleged misconduct.

16
Tata Engineering and Locomotive Co. Ltd. v. Their Workmen (1966):

The Supreme Court held that dismissals based on union activities should be scrutinized

closely to prevent victimization of employees for engaging in lawful trade union

activities. Aravind’s dismissal appears to be motivated by his role as President of the

Workers Union, suggesting that he was targeted for his union activities rather than any

legitimate misconduct.

In the light of the arguments submitted the order of dismissal passed against Aravind was

not sustainable in law.

15
(2003) 6 SCC 528

16 1981 AIR
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3. Whether the order of conviction under section 223 of the Lemurian penal code is

unconstitutional, being violative of the right of Charles and office bearers of the trade

union?

It is humbly submitted before the Supreme Court of Lemuria that the order of conviction under

section 223 of the Lemurian penal code is unconstitutional, being violative of the right of

Charles and office bearers of the trade union. The lockdown order issued under the Disaster

(Remedial Measures) Act is considered an excessive exercise of power, infringing on Articles

14, 19, and 21 of the Lemurian Constitution by failing to protect vulnerable populations,

including workers.

3.1. The Unconstitutionality of the Order Restricting Freedom of Movement and Assembly

under the Disaster (Remedial Measures) Act:

The lockdown order dated 24.03.2024 issued under the Disaster (Remedial Measures)

Act was an excessive exercise of executive power, violating Articles 14, 19, and 21 of

the Lemurian Constitution. The curfew was imposed without proper safeguards to ensure

that the lockdown did not disproportionately affect vulnerable sections of society,

including workers, daily wage earners, and trade union members. By failing to account

for the economic hardship and right to livelihood of citizens, the order violated the basic

principles of fairness and proportionality inherent in executive decision-making.

In 17Kameshwar Prasad v. State of Bihar (1962), the Supreme Court of India held that a

blanket ban on peaceful assembly in the workplace, without exceptions for legitimate

gatherings like union meetings, violated the right to assembly and was arbitrary.

17
1962 AIR
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In the case of 18Indian Medical Association v. Union of India 2021,

In this case The Indian Medical Association filed a petition regarding the protection of

healthcare workers during the pandemic. The Supreme Court recognized the challenges

faced by healthcare workers and emphasized the need for the government to provide

adequate protection and support.

This case reflects the collective voice of the medical community advocating for their rights

and the necessity of safeguarding those who serve on the front lines of public health

crises. Furthermore, the Epidemic Diseases (Prevention & Cure) Act, which grants the

government powers to impose restrictions, was misapplied in this instance. The

Microbiologists Society of Lemuria had only recommended a 14-day quarantine period,

yet the government issued a blanket order of lockdown for 21 days. The arbitrary extension

of restrictions, especially without considering the socio-economic impact on vulnerable

citizens, renders the lockdown order excessive and violative of constitutional protections.

3.2. No need for Arbitrary arrest:

The arrest of Charles and other trade union leaders may be seen as selective enforcement

aimed at suppressing trade union activity rather than genuinely enforcing the lockdown

measures. Charles’ position as a union leader raises the possibility that the authorities were

using the pandemic as a pretext to clamp down on the union. This amounts to arbitrary and

targeted enforcement, which undermines the rule of law.

The Court in the case of 19D. K Basu v. State of West Bengal (1997) also emphasized

the importance of procedural safeguards during arrests, ensuring that arrests are not

arbitrary, that the police follow due process, and that there is no misuse of authority. In

the present case, none of the procedures was followed which was given in the above case.

18
WRIT PETITION (CIVIL) NO. 645/2022.
19
1997 (1) SCC 416

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In the Case of20Baldev Singh Gandhi v. State of Punjab (2002), the Supreme Court of

India held that the right to form and manage trade unions is protected under the Constitution

and arbitrary state interference in such activities, even in emergencies, must be justified.

The arrest of Charles without genuine grounds for posing a public health risk violates these

protections.

Arresting Charles and other union leaders can be viewed as a form of victimization for their

union activities, which are protected under constitutional provisions regarding freedom of

association. The authorities appear to have selectively enforced the law to target trade union

activity, which is an illegitimate use of state power.

3.3. Urgent Need of meeting to Address Essential Workers' Grievances Amidst the

Lockdown:

The order of conviction under section 223 of the Lemurian Penal Code is unconstitutional,

being violative of the right of Charles and other office - bearers of the trade union because

Charles addressed the gathering about the need for submitting fresh charter of demands

to the employer and for entering a fresh settlement in the place of settlement dated 01.02

2021. Settlements are important for trade unions because they can make collective

agreements applicable, establish agreements on how to conclude collective agreements,

establish agreements on how to implement industrial action, help maintain long-term

harmonious industrial relations.

A key agenda of the meeting was to address concerns about health and safety measures for

workers during the pandemic. The factory had not implemented proper COVID-24 safety

protocols, leaving workers vulnerable to infection. The trade union members, including

Charles, sought to pressure the management to adhere to government-mandated health

20
2002 AIR SCW 878

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guidelines for workplace safety, such as ensuring social distancing, providing

sanitization, and supplying personal protective equipment (PPE).

By participating in the meeting, Charles was advocating for the health and safety of his

fellow workers, a cause that was both legitimate and in line with public health objectives.

This underscores the importance of the meeting as a proactive and responsible measure

taken by the workers to protect themselves and the larger community.

3.4. Importance of essential workers under Essential Services Manufacturing Act,1981:

Recognition as Essential Workers:

Employees in hospital-related manufacturing and distribution units, including those in

healthcare, pharmaceuticals, and medical supplies, were classified as essential workers.

This classification meant they were allowed to continue working even when many other

sectors were closed, acknowledging their critical role in maintaining public health.

The Essential Services Manufacturing Act recognizes the rights of workers to organize and

engage in collective bargaining. The meeting on April 10, 2024, was a legitimate

exercise of these rights, aimed at discussing important labour issues and submitting a

fresh charter of demands to the employer.

3.5. Meeting was an exception of Ministry of Home Affairs order:

The Ministry of Home Affairs (MHA) of Lemuria issued 21Order No. 100 on 24.03.2024

under the provisions of the Disaster (remedial measures) Act directing the Central

Government and State Governments as well as their Authorities to take necessary steps.

The said order issued the following guidelines:

21
https://www.mha.gov.in/sites/default/files/MHA%20order%20dt%2015.04.2020%2C%20with%20Revised%2
0Consolidated%20Guidelines_compressed%20%283%29.pdf

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(3) Hospitals and all related medical establishments including their manufacturing &

distribution units both in public and private sector will continue to remain functional.

The establishment is exempt from closure under MHA Order (3), the workers' meeting

regarding their employment conditions is an extension of this exemption. The lockdown

guidelines were intended to curtail gatherings that pose a risk to public health or disrupt

essential services, not to prevent discussions that help maintain essential services.

The meeting held by Charles and his fellow workers is an exception to the MHA Order No.

100 under clause (3), as it is directly connected to the functioning of an establishment

engaged in the production of essential medical products. The peaceful assembly aimed at

discussing employment conditions for essential workers is aligned with the need to

maintain the uninterrupted flow of services critical to public health. Therefore, the

conviction under Section 223 for this assembly is legally unjustified.

In the light of the arguments submitted the order of conviction under section 223 of the

Lemurian penal code is unconstitutional, being violative of the right of Charles and office

bearers of the trade union.

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4. Whether the right to life and liberty of the citizens of India including their right to

health guaranteed under the constitution has been violated by the lockdown order

dated 24.03.2024.

It is humbly submitted before the Hon'ble Supreme Court of Lemuria that the right to life and

liberty of the citizens of Lemuria including their right to health guaranteed under the

constitution has been violated by the lockdown order dated 24.03.2024. The order, which

mandated a blanket shutdown without ensuring mandatory medical examinations for

COVID- 24, is characterized as an arbitrary exercise of power that particularly affected

vulnerable populations, including daily wage earners and self-employed individuals,

stripping them of their income and compromising their right to health.

4.1. Arbitrary exercise of power:

Lemuria passed the order on 24.03.2024 to directing the citizens to shut down their

operations and remain at home observing social distance without arranging for compulsory

medical examination for the citizens to find out whether they rest positive or negative for

COVID - 24 was arbitrary exercise of power.

The order of the government also jeopardized the right to life and liberty of the vulnerable

sections of Lemuria like unorganised labour, daily wage earner, self-employed persons,

agricultural farmers, petty shop owners etc., who have been deprived of their sources of

income. It was also contended that the right to health of all citizens of Lemuria as

guaranteed under the Constitution was violated.

4.2. Violation of Fundamental Rights (Right to Life and Liberty):

Denial of the Right to Movement and Liberty:

The blanket lockdown order restricted citizens' right to movement and personal liberty.

While the government justified these restrictions as necessary for public safety, the lack of

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a clear public health strategy and the indefinite nature of the lockdown imposed

excessive constraints on citizens’ fundamental rights. The lockdown’s indiscriminate

restriction of movement without provisions for those needing access to healthcare, food,

or basic livelihood support made it unconstitutional.

Prolonged and Indefinite Nature of the Lockdown:

The 21-day lockdown, which was later extended, failed to balance public health measures

with individual liberties. The Society for Noble Principles of Law & Literature rightly

argued that the lockdown infringed upon the citizens’ right to life and liberty, as it restricted

their movement and jeopardized the livelihoods of millions without adequate relief.

4.3. Economic Hardship and Violation of the Right to Livelihood:

Severe Economic Consequences for Vulnerable Sections:

As seen in the proposition, the lockdown caused significant economic hardships for

vulnerable groups like daily wage earners, unorganized labourers, farmers, and petty

shop owners. The shutdown deprived them of their livelihood, forcing them into

economic insecurity and even starvation. The lockdown measures failed to account for

the economic well-being of these groups, leading to a violation of the right to livelihood.

No Financial Support or Safety Nets:

The government order dated 24.03.2024 did not provide adequate financial assistance or

a support system for workers in the informal economy who were disproportionately affected

by the lockdown. The closure of private and public sector undertakings, without any

economic relief measures, worsened the crisis for the weaker sections of society.

Disregard for Economic Balance:

The proposition highlights that while the lockdown order shut down businesses and forced

citizens to stay at home, the lack of provisions for essential services and financial

compensation to affected workers was arbitrary. The Society for Noble Principles of Law
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& Literature in its writ petition argued that this failure amounted to an arbitrary exercise of

power, infringing on citizens' right to livelihood and economic survival.

The lockdown and Janata curfew without the pre safety measures leads to the Economic

Hardship and Violation of the Right to Livelihood.

4.4. Violation of right to health:

The right to health is an essential component of the broader right to life and personal liberty,

as guaranteed under Article 21 of the Constitution. The right to health is not explicitly

mentioned in the Constitution but has been interpreted by courts as integral to the right to

22
life. The Supreme Court of India, in cases such as Paschim Banga Khet Mazdoor Samity

v. State of West Bengal, recognized that access to healthcare services is a fundamental

right. This interpretation extends to situations where government actions, like lockdowns,

may impede citizens' access to necessary medical services.

Lack of Adequate Justification

The petitioner argues that there was insufficient justification for such an extreme measure

as a nationwide lockdown without prior medical examination or testing protocols in place.

In 23People’s Union for Civil Liberties v. Union of India, it was emphasized that state

actions must be backed by data and scientific reasoning, which were lacking in this case.

Therefore, in the light of the above arguments that the right to life and liberty of the citizens

of Lemuria including their right to health guaranteed under the constitution has been

violated by the lockdown order dated 24.03.2024.

22
(1996) AIR SC 2426
23
AIR 1997 SC 568

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PRAYER FOR RELIEF

WHEREFORE, IN THE LIGHT OF THE FACTS STATED, ISSUES RAISED,

ARGUMENTS ADVANCED AND AUTHORITIES CITED, IT IS MOST HUMBLY
PRAYED AND IMPLORED BEFORE THE HON'BLE SUPREME COURT MAY
PLEASED TO,

1. To declare the termination of Bashir's employment by the employer as unlawful,

arbitrary, and in violation of the principles of natural justice, thereby restoring him

to his position with full back wages and benefits.

2. To rule that the dismissal order against Aravind is unsustainable in law due to a

lack of due process, insufficient evidence, and discrimination, reinstating him with

back wages and benefits.

3. To declare the conviction of Charles and other office-bearers of the trade union under

Section 223 as unconstitutional, infringing upon their rights to freedom of assembly

and association as guaranteed under the Constitution.

4. Declare the Lockdown Order of 24.03.2024 as violative of Fundamental Rights.

AND/OR

ALSO PASS ANY OTHER ORDER THAT THIS HONOURABLE COURT DEEMS

FIT AND PROPER IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD

CONSCIENCE.

For this act of kindness, the PETITIONER(S) shall be duty bound forever to pray.

All of which is humbly prayed,

Counsel appearing on behalf of the PETITIONER(S)

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