TC-87

PSDA MOOT COURT ACTIVITY, 2023

Before
THE HON’BLE HIGH COURT OF DELHI

BHARTIYA MAZDOOR SANGH ...................................................APPELLANT

v.

SAURASHTRA ELECTRONIC LIMITED ................................. RESPONDENT

[MEMORANDUM ON THE BEHALF OF APPELLANTS]

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS ..................................................................................................2

INDEX OF AUTHORITIES……………………………………………………………… 3

LIST OF CASES ……………………………………………………………………………...4

STATEMENTS OF JURISDICTION.....................................................................................5

SUMMARY OF FACTS........................................................................................................…6

ISSUES RAISED....................................................................................................................... 7

SUMMARY OF ARGUMENTS ............................................................................................... 8

ARGUMENT ADVANCED…………………………………………………………………..10

ISSUE 1: WHETHER TWHETHER THE HUNGER STRIKE FOLLOWED BY DAMAGE

OF PROPERTY IS A LEGAL STRIKE AS PER INDUSTRIAL DISPUTE ACT?

ISSUE 2: WHETHER THE CIVIL AND CRIMINAL IMMUNITY WILL BE GRANTED

TO THE UNION IN THE ABOVE CASE?

ISSUE 3: WHETHER THE INDIVIDUAL DISPUTE OF SUSPENDING RAMESH

KUMAR COULD BE CONVERTED INTO AN INDUSTRIAL DISPUTE?

ISSUE 4: WHETHER RETRENCHMENT OF FEW WORKERS WHO WERE MEMBER

OF BHARTIYA MAZDOOR SANGH BY THE MANAGEMENT VIOLATES THE
PROVISIONS OF INDUSTRIAL DISPUTE ACT, 1947?

PRAYER .................................................................................................................................... 20

Page | 1
 LIST OF ABBREVIATIONS

Ors. Others

Vs Versus

i.e. That is

SC Supreme Court

AIR All India Reporter

SCC Supreme Court Cases

Art. Article

& And

Ors. Others

Sec. Section

UOI Union of India

Del Delhi

Page | 2
 INDEX OF AUTHORITIES

STATUTES REFERRED

1. Industrial Dispute Act, 1947.

2. Trade Union Act, 1926.

3. The Constitution of India.

4. Industrial Employment (Standing Order) Act, 1946.

BOOKS AND COMMENTARIES REFERRED

1. Surya Narayan Misra, An Introduction to Labour and Industrial Law, Allahabad Law
Agency, 1978

2. S.C. Srivastava, Industrial Relations and Labour Law, Vikas Publishing House, New Delhi

3. Indian Law Institute, Cases and Materials on Labour Law and Labour Relations

4. P.L. Malik, Industrial Law, Eastern Book Company, 2013

5. Dr. Goswami, Labour and Industrial Law, Central Law Agency, 2011

WEBSITES REFERRED

1. www.lexisnexisacademic.com

2. www.manupatrafast.com
3. www.scconline.com
4. www.legalindia.com
5. www.lawyersclubindia.com
6. www.indiankanoon.orgcx
7. www.casemine.com
8. www.lawctopus.com

Page | 3
 LIST OF CASES

1. B.R Singh V. UOI AIR 1989 (4) SCC 710

2. M/s. Baldev Soap Factory v. Delhi (1995) II LLJ 376 (Del)

3. Cox and Kings Limited v. Their Employees (1949) LLJ 796 (I.T.)

4. Swadesh Industries Ltd v Their Workmen (1960) AIR SC 1250

5. Bihar Fire Works and Potteries Workers (1953) I LLJ L.AT. (Cal.) 49
Union v. Bihar Fire Works and Potteries at 52
6. Rohtas Industries Staff Union v. State of (1976) 2 SCC 82
Bihar
7. Shahdot Pipe Works v. Zala Loghu Udyog 2005 11 LLJ M.P.High
Kamgar Sangh Court 356
8. P. Mukundan v. M.K. Pavithran (1992) 11 LLJ, Kerala High
Court
9. Reserve Bank of India v. Ashis Kusum 73 CWN 388

Page | 4
 STATEMENT OF JURISDICTION

The Hon’ble High Court of Delhi has the jurisdiction to try the instant matter under Article 227 of
Constitution of India,1950.
Article 227, Constitution of India 1950
(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories
in relation to which it exercises jurisdiction.
⁠
(2) Without prejudice to the generality of the foregoing provision, the High Court may—
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such
courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.
⁠
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of
such courts and to attorneys, advocates and pleaders practicing therein:
⁠Provided that any rules made, forms prescribed, or tables settled under clause (2) or clause (3) shall not
be inconsistent with the provision of any law for the time being in force, and shall require the previous
approval of the Governor.

⁠(4) Nothing in this article shall be deemed to confer on a High Court power of superintendence over any
court or tribunal constituted by or under any law relating to the Armed Force

Page | 5
 SUMMARY OF FACTS

Saurashtra Electronics Limited (SEL) is a prominent Navratna PSU under the Ministry of Defense,
contributing advanced products to military, government, and civilian sectors. Initially established for the
Indian Defense Services, SEL expanded its presence in non-military markets and is a leading Electronic
Manufacturing Company in Delhi.

Facing issues with the working conditions of contractual workers, Bhartiya Mazdoor Sangh, formed by
the amalgamation of three registered trade unions, demanded the implementation of the 7th Pay
Commission and permanent positions. Despite prolonged negotiations with SEL's management, no
agreement was reached, leading to frequent strikes that disrupted production and caused financial losses
for the company.

SEL's management claims the strike is illegal under the Industrial Disputes Act, 1947, asserting that
prescribed procedures for calling a strike were not followed. The management decided to deduct 15 days'
wages, initiate disciplinary proceedings, and retrench some workers. Bhartiya Mazdoor Sangh argues the
strike's legitimacy under the Industrial Disputes Act, viewing it as a last resort to press for their legitimate
demands.

In response to management's actions, Bhartiya Mazdoor Sangh filed a case before the Labour Court,
which ruled in favor of the management, awarding a compensation of 2 lakhs rupees for losses suffered.
Dissatisfied with this decision, the union appealed to the Delhi High Court, contending that the
retrenchment violates their rights under the Industrial Disputes Act of 1947. The legal dispute underscores
the complex dynamics between workers' rights, collective bargaining, and management actions in the
industrial setting.

Page | 6
 STATEMENT OF ISSUES

ISSUE 1

WHETHER TWHETHER THE HUNGER STRIKE FOLLOWED BY DAMAGE OF

PROPERTY IS A LEGAL STRIKE AS PER INDUSTRIAL DISPUTE ACT?

ISSUE 2

WHETHER THE CIVIL AND CRIMINAL IMMUNITY WILL BE GRANTED TO THE

UNION IN THE ABOVE CASE?

ISSUE 3

WHETHER THE INDIVIDUAL DISPUTE OF SUSPENDING RAMESH KUMAR

COULD BE CONVERTED INTO AN INDUSTRIAL DISPUTE?

ISSUE 4

WHETHER RETRENCHMENT OF FEW WORKERS WHO WERE MEMBER OF

BHARTIYA MAZDOOR SANGH BY THE MANAGEMENT VIOLATES THE PROVISIONS
OF INDUSTRIAL DISPUTE ACT, 1947?

Page | 7
s
SUMMARY OF ARGUMENTS

[1] WHETHER TWHETHER THE HUNGER STRIKE FOLLOWED BY DAMAGE OF

PROPERTY IS A LEGAL STRIKE AS PER INDUSTRIAL DISPUTE ACT?

The legality of a 15-day hunger strike demanding the implementation of the 7th pay
commission by a trade union centers on several key points. Firstly, it asserts that the hunger
strike is a legitimate form of peaceful protest, falling within the purview of the fundamental
right to freedom of speech and expression, as guaranteed by Article 19 of the Constitution of
India. This right encompasses the freedom to assemble peacefully and petition for redressal of
grievances. Furthermore, proponents of this argument emphasize that the hunger strike was
initiated after providing proper notice to the management, adhering to legal procedures and
ensuring transparency in the dispute resolution process according to section 22(3) of the
Industrial Disputes Act. The demand for the 7th pay commission is contextualized as a
legitimate grievance within the framework of labor rights, and the hunger strike is portrayed as
a last resort when conventional methods of negotiation have failed. Overall, the argument
contends that the union's actions were legally justified, rooted in constitutional rights, and
conducted with a sense of responsibility by following the requisite procedural steps, making
the hunger strike a valid form of expression within the bounds of the law.

[2] WHETHER THE CIVIL AND CRIMINAL IMMUNITY WILL BE GRANTED TO

THE UNION IN THE ABOVE CASE?

It is Humbly Submitted that the appellant Bhartiya Mazdoor Sangh must be granted civil and
criminal immunity as according to Section 2A of Industrial Disputes Act,1947 that any
individual dispute becomes industrial dispute where any workman is terminated and not any
other workmen of the union is involved in that dispute and the dispute is for furtherance of the
objects and purposes of the trade union in accordance to the provisions classified under section
17 & 18 of the Trade Unions Act, 1926.

[3] WHETHER THE INDIVIDUAL DISPUTE OF SUSPENDING RAMESH KUMAR

COULD BE CONVERTED INTO AN INDUSTRIAL DISPUTE?

Section 2A addresses disputes leading to termination as industrial disputes. Ramesh's

8| P a g e
temporary suspension may not fall under Section 2A, differing from termination, dismissal, or
discharge. Converting individual disputes to industrial is crucial for setting a precedent of fair
employee treatment. It ensures justifiable reasons and due process in suspensions, maintaining
a healthy work environment. Elevating the dispute highlights the company's responsibility
during a hunger strike, preventing potential damage to public image and social responsibility.
The union emphasizes the company's duty in handling such matters with sensitivity and respect
for human rights. Section 2A applies even if an employer terminates an individual's
employment due to a dispute, without involvement from other workers or unions.
[4] WHETHER RETRENCHMENT OF FEW WORKERS WHO WERE MEMBER
OF BHARTIYA MAZDOOR SANGH BY THE MANAGEMENT VIOLATES THE
PROVISIONS OF INDUSTRIAL DISPUTE ACT, 1947?

The appellant argues that SEL terminated employees without proper cause by initiating
disciplinary action, which goes against Section 2(oo) of the Industrial Disputes Act, 1947, that
outlines the definition of "retrenchment." Despite experiencing financial growth, SEL failed to
enhance working conditions, resulting in labor strikes .
Beyond the exceptions mentioned in Section 2(oo), the termination can be seen as exploitation.
According to the prosecution, SEL's actions did not have genuine intentions and had a negative
impact on its position in the market and negotiations with the Trade Union.

Moreover, SEL did not follow the requirements for retrenchment outlined in Section 25F,
which include providing notice and compensation, thereby rendering the termination null and
void. In this case there was no condition contrary in contract to the “first come last go” and
“last come first go” principle in the contract agreement of the workers, so this principle was
applicable and was violated by the management of Saurashtra Electronics Ltd. (SEL), as
workers were retrenched not on the basis of seniority but on the basis of participation in strikes.

9| P a g e
 ARGUMENTS ADVANCED

[1] WHETHER TWHETHER THE HUNGER STRIKE FOLLOWED BY DAMAGE OF

PROPERTY IS A LEGAL STRIKE AS PER INDUSTRIAL DISPUTE ACT?

1. The Industrial Dispute Act is primarily designed to protect the rights and interests of
workers, ensuring fair labor practices and resolution mechanisms for disputes between
employers and employees. A hunger strike, when conducted peacefully, can be seen as
a form of non-violent protest and a legitimate means for workers to draw attention to
their grievances. The right to protest is often considered a fundamental aspect of
freedom of expression, a constitutional right in many jurisdictions. Article 19 of the
Constitution of India guarantees the fundamental right to freedom of speech and
expression, which encompasses the right to peaceful assembly and protest. A hunger
strike can be seen as a form of non-violent expression, falling within the ambit of this
fundamental right.
2. In the case of B.R Singh V. UOI 1it was held that strike is a form of demonstration.
Though the right to strike or right to demonstrate is not a fundamental right, it is
recognized as a mode for resolving the grievances of the workers.
3. Section 22(3) 2states the notice of lock-out or strike under this section shall not be
necessary where there is already in existence a strike or, as the case may be, lock-out in
the public utility service, but the employer shall send intimation of such lock-out or
strike on the day on which it is declared, to such authority as may be specified by the
appropriate Government either generally or for a particular area or for a particular class
of public utility services.
4. The plain reading of the section provides that in the case of the ongoing strikes the
notice of strike can be given on the day of the strike. There were already several strikes
ongoing and Bhartiya Mazdoor Sangh after giving notice to management went on a 15
days hunger strike by choosing it as there last resort.
5. In Management of M/s. Baldev Soap Factory v. Delhi 3Administration and others the
Delhi High Court held that in the present case the strike was resorted to after giving

1
AIR 1989 (4) SCC 710
2
The Industrial Disputes Act,1947
3
(1995) II LLJ 376 (Del)

10| P a g e
 notice to the management and hence the workman cannot be terminated for
participation in strike. Therefore, the claim of workmen for wages is not barred by and
participation of workmen in strike cannot result in dismissal from service.
6. Delving into the concept of necessity and the principle of proportionality. It may be
contended that hunger strikes are proportionate responses to situations where workers
are faced with egregious violations of their rights and dignity by not getting
implementation of 7th Pay Commission and notification of permanent positions for
several months. In such cases, supporters of this perspective might emphasize that the
damage caused is a direct result of the employer's failure to address legitimate concerns,
making it a necessary and proportionate measure to gain attention and prompt action.

7. In the case of Cox and Kings Limited v. Their Employees4, the Court held that a strike
can be considered justified if it is in connection with a current labour dispute or directed
against an unfair labour practice of the employer.

8. In the case of Swadesh Industries Ltd v Their Workmen5, the first and foremost
requirement of a justified strike is that it should be launched only for economic demands
of workmen like basic pay, dearness allowance, bonus, provident fund, gratuity, leave
and holidays etc.,
9. The demands of Bhartiya Mazdoor Sangh were very much related to current labour and
also an economic demand with reference to their pay commission. The strike was a
consequence of the unfair practice by the employer and also result of the legitimate
demand of the trade union.

10. Throughout history, various forms of civil disobedience, including hunger strikes, have
been employed to achieve social and political change. Drawing parallels with historical
movements, such as the suffragette movement or the civil rights movement, one can
argue that unconventional methods are sometimes necessary to challenge deeply
entrenched systems.

11. In the case of Bihar Fire Works and Potteries Workers Union v. Bihar Fire Works
and Potteries6,it was held that it is not proper to judge from the result of the adjudication
of the demands whether a strike was not justified or not it can't be said to be unjustified.

4
(1949) LLJ 796 (I.T.)
5
(1960) AIR SC 1250
6
(1953) I LLJ L.AT. (Cal.) 49 at 52

11| P a g e
 12. The 15-day hunger strike by a trade union demanding the implementation of the 7th
pay commission can be deemed legal. The action followed proper protocol, with
advance notice provided to the management. This form of protest falls within the
constitutional right to freedom of speech and expression, including the right to peaceful
assembly. The Industrial Dispute Act's silence on hunger strikes implies permissibility,
and the prolonged demonstration serves as a last resort, highlighting the urgency and
desperation in addressing workers' grievances.

[2] WHETHER THE CIVIL AND CRIMINAL IMMUNITY WILL BE GRANTED TO

THE UNION IN THE ABOVE CASE?

13. It is humbly submitted before the Hon’ble High Court that the appellant Bhartiya
Mazdoor Sangh must be granted civil and criminal immunity according to the
provisions of Section 17 and Section 18 of The Trade Union Act, 1926.

14. Section 17 of the Trade Union Act,1926 confers immunity from liability in case of
criminal conspiracy under section 120-B of the Indian Penal Code, 1860 committed by
an office bearer or member of a registered trade union. This protection provided to the
office bearers and members is partial in the sense that immunity is in respect of
agreements made between the members for the purpose of furthering any legitimate
object of the trade union as provided in Section 15 of the Act. Registered Trade Unions
have certain rights to do in furtherance of their trade disputes, such as to declare strike
and for that purpose to persuade their members to abstain from their work.

15. Section 18 of the Indian Trade Unions Act, 1926 provides that no suit or other legal
proceedings shall be maintainable in any civil court against any registered Trade Union
or any of its office bearers or members in respect of act done in contemplation or
furtherance of a trade dispute to which a member of the Trade Union is a party on the
ground only that such ad induces some other person to break a contract of employment
or that it is in interference with the trade, business or employment or some other person
or with the right or some other person to dispose of his capital or of his labour as he
wills.
Section 18(1) provides immunity to registered Trade Unions, its office bearers and

12| P a g e
 members from civil suits or other legal proceedings in respect of an act done in
contemplation or furtherance of a trade dispute on the ground only that:
• Such act induces some other person to break a contract of employment, or
• Such act is an interference:
• With the trade, business or employment of some other person, or
• With the right of some other person to dispose of his capital or labour as he wills.

16. In the case of Rohtas Industries Staff Union v. State of Bihar7, the question for
determination was, whether the employers have any right to claim damages against the
employee participating in an illegal strike and thereby causing loss of production and
business. Ramaswami, C.J. observed that,
"Upon consideration of the various provisions of the Act it is manifest that the
overriding purpose of the Act is the benefit of the community and not the benefit of the
employees or the employers. It is true that section 24 of Industrial Disputes Act, 1947
imposes a statutory duty on the employees not to commence or declare an illegal strike.
But it is manifest that if there is a breach of this statutory duty on the part of the
employees, the employer has no right of civil action against the employees in default
apart from the statutory penalty provided by section 26 (1) of the Industrial Disputes
Act, 1947. Similarly, if the employer declares an illegal lockout there is a breach of the
statutory obligation created by section 24 of the Industrial Disputes Act, 1947, but the
employees have no right of civil action. The exclusive remedy open to them is criminal
prosecution under section 26 (2) of the Act. For these reasons I hold that the duties
imposed by sections 22, 23 and 24 of the Industrial Disputes Act are statutory duties
owed by the employees, not to the employers concerned but duties owed of the public
which can be solely enforced by criminal prosecution under section 26 (1) of the Act.
It follows, therefore, that the employers have no right of civil action, for damages
against the employees participating in an illegal strike within the meaning of section
24 (1) of the Industrial Disputes Act.”

17. In the case of Shahdot Pipe Works v. Zala Loghu Udyog Kamgar Sangh8 it was held
that, “Where the strike called by the defendant trade union had resulted in cessation of

7 (1976) 2 SCC 82
8 2005 11 LLJ M.P.High Court 356

13| P a g e
 production in the factory causing a loss of Rs. 22,500/- it was alleged, to the employer.
The court rejected the employer's claim for recovery of damages and held that members
of a registered trade union were granted immunity from liability for any tortuous act
done in contemplation or in furtherance of a trade dispute. Besides, in the present case,
from the evidence on record, it could not be said that the loss was caused by the
defendant trade union member, office bearers and sympathizers”.

18. In the case of P. Mukundan v. M.K. Pavithran9 it was further discussed that-
“The court pointed out that the fact that the employer suffers, and suffers much by the
strike, is not a decisive criterion. In the process of collective bargaining, the employer
or the employees or even both may suffer, the employer by the deprivation of his profits
and the incurring of loss even otherwise the employees by the denial of work either
voluntarily or self-imposed, and the resultant deprivation of the wages which may
expose them even to the pangs of starvation. A strike perse, would not, therefore, be an
actionable wrong. In any case, the trade union, the office bearers, and the members are
insulated against legal proceedings linked with the strike of the workmen”.

19. It was held in Reserve Bank of India v. Ashis Kusum10 that to secure immunity from
civil liability under section 18 inducement or procurement of breaches of contract of
employment in furtherance of a trade dispute or interference with business of another
person in furtherance of a trade dispute must be by lawful means and not by means
which would be illegal or wrongful by other provisions of law. It was further held that
the movement or agitation or demonstration by the employees for the purpose of
compelling employer to withdraw certain disciplinary proceeding initiated against some
of them was in contemplation or in furtherance of trade dispute and, therefore, not
acceptable. So also, to threaten to induce breaches of contracts of employment is not
actionable. But the inducement of breaches of contract must not be by unlawful means.

20. It is pertinent to mention that the members of the Bharatiya Mazdoor Sangh had been
in talks with the management for several months to implement the Seventh Pay
Commission and notify the permanent posts. Despite several rounds of discussion, no

9 (1992) 11 LLJ, Kerala High Court

10 73 CWN 388

14| P a g e
 consensus has been reached. Thus, the members of Bharatiya Mazdoor Sangh decided
to go on a hunger strike as a last resort to fight for their interest.

21. That Bharatiya Mazdoor Sangh showed its positive participation in all the rounds of
discussion. Its members did not disrespect the negotiation proceedings, although the
outcome of the negotiations was not beneficial to the interests of these workers. Thus,
the workers were left with no option but to go on hunger strike to fulfill their demands.
Nevertheless, this may cause financial loss to Saurashtra Electronics Limited Company.

22. The suspension of Ramesh Kumar who was member of the Union is illegal on the
ground that the management suspended him without giving any valid reason and not
giving time to explain his situation. Thus, the immunity from criminal and civil liability
under the provisions of Section 17 and 18 of the Trade Union Act, 1926 must be granted
because it is for the purpose of furthering the legitimate object of the trade union as
provided in Section 17. Suspension of the worker without giving valid reasons is against
the provisions of the Trade Union Act.

23. Section 2A of Industrial Disputes Act, 1947 states that any employer discharges,
dismisses, retrenches, or otherwise terminates the services of an individual workman,
any dispute between that workman and his employer connected with, or arising out of
such discharge, retrenchment, termination shall be deemed to be an industrial dispute
notwithstanding that no other workman nor any union or workmen is a party to the
dispute.

24. Thus, keeping in mind all the above facts and reason the appellant Bhartiya Mazdoor
Sangh must be granted civil and criminal immunity according to the provisions of
section 17 and 18 of The Trade Union Act, 1926 and section 2A of Industrial Disputes
Act, 1947, as the strike held by the appellant was not illegal.

[3] WHETHER THE INDIVIDUAL DISPUTE OF SUSPENDING RAMESH KUMAR

COULD BE CONVERTED INTO AN INDUSTRIAL DISPUTE?

15| P a g e
1.According to Section 2(k)11 of the Industrial Disputes Act, 1947 “industrial dispute” is
defined as, “Any disputes or differences between employers and employers, or between
employers and workmen, or between workmen and workmen, which must have a direct
connection with the employment or non-employment or the terms of employment or with the
conditions of labour, of any other person”.
2.Precedent and Fair Treatment: converting this individual dispute into an industrial dispute is
essential to set a precedent for fair and consistent treatment of employees. Ensuring that
suspensions are based on justifiable reasons and due process is followed is crucial for
maintaining a healthy work environment.
3.Public Image and Social Responsibility: the company's action during a hunger strike could
adversely affect its public image and social responsibility. By elevating this individual
dispute to an industrial level, the union seeks to highlight the company's responsibility in
dealing with such matters with sensitivity and respect for human rights.
4.Within the framework of Section 2A12 of the Industrial Disputes Act, 1947, if an employer
concludes the employment of an individual because of a dispute or discrepancies between the
worker and the employer, the ensuing disagreement will be categorized as an industrial
dispute, even in the absence of any other worker or workers' union involvement.
5. In the landmark case of Workmen Of Dimakuchi Tea Estate vs The Management Of
Dimakuchitea ... on 4 February, 1958 citations: 1958 AIR 353, 1958 SCR 1156
Tea Estate Supreme Court identified that Section 2A- which apparently gives the definition
for what an individual dispute is, does also not state that all individual disputes are industrial
disputes. It is only when a dispute relates to a discharged, dismissed, retrenched or
terminated worker that it is treated as an industrial dispute.13
6. In Jadhav J. H. v. M/s. Forbes Gokak Ltd (200514), it was held that a dispute involving a
single worker can be considered as an industrial dispute if the dispute is supported by the
union or a group of workers, regardless of whether the union supporting the worker’s cause is
not the majority of the union

11
Industrial Dispute is “any dispute of difference between employers and employers or between employers and
workmen; or between workmen and workmen, which is connected with the employment or non-employment
or the terms of employment or with the conditions of labour of any person.”
12
Dismissal, etc., of an individual workman to be deemed to be an industrial dispute.- Where any employer
discharges, dismisses, retrenches, or otherwise terminates the services of an individual workman, any dispute
or difference between that workman and his employer connected with, or arising out of, such discharge,
dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no
other workman nor any union of workmen is a party to the dispute.
13
https://blog.ipleaders.in/rights-of-an-individual-workman-under-id-act/
14
https://indiankanoon.org/doc/1720002/

16| P a g e
[4] WHETHER RETRENCHMENT OF FEW WORKERS WHO WERE MEMBER
OF BHARTIYA MAZDOOR SANGH BY THE MANAGEMENT VIOLATES THE
PROVISIONS OF INDUSTRIAL DISPUTE ACT, 1947?

Contention is that Section 2(oo) of Industrial Disputes Act,1947 provides for the definition of
Retrenchment which states that —

[(oo) “retrenchment” means the termination by the employer of the service of a workman for
any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action,
but does not include—

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of
employment between the employer and the workman concerned contains a stipulation in that
behalf;

(c) termination of the service of a workman on the ground of continued ill-health

In this case termination of workers cannot be abridged under retrenchment of workers as the
the conditions for retrenchment hasn’t been met, as per Section 25(F) of industrial Disputes
Act,1947 but as measure of Disciplinary proceeding against appellant which is punitive in
nature under similar facts as mentioned in the case of State Bank of India vs. Workmen ,
The Supreme Court on similar grounds and facts as mentioned in the given case held that
termination of the employee was a result of the disciplinary proceedings and was punitive. It
was therefore not “retrenchment” within the meaning of Section 2(oo) of the Act

According to Section 25(F) of the Industrial Dispute Act,1947 an employer must fulfil some
conditions in order to have a valid retrenchment of an Employee failing which retrenchment of
an employee would be rendered invalid. Section 25(F) of Industrial Disputes Act, 1947 states

25F. Conditions precedent to retrenchment of workmen.— No workman employed in

any industry who has been in continuous service for not less than one year under an employer
shall be retrenched by that employer until—

(a) the workman has been given one month’s notice in writing indicating the reasons for
retrenchment and the period of notice has expired, or the workman has been paid in lieu of such

17| P a g e
notice, wages for the period of the notice;

(b) the workman has been paid, at the time of retrenchment, compensation which shall be
equivalent to fifteen days' average pay [for every completed year of continuous service] or any
part thereof in excess of six months; and

(c) notice in the prescribed manner is served on the appropriate Government 3 [or such
authority as may be specified by the appropriate Government by notification in the Official
Gazette].
As in this case No proper notice has been given to the workers 30 days before Retrenchment
of the worker, No compensation has been provided to the workers as per guideline of Industrial
Disputes Act, 1947 which is in violation of the act and would also attract penalty under Section
31(2) of Industrial Disputes Act. It states
Penalty for other offences.— (1) Any employer who contravenes the provisions of section
33 shall be punishable with imprisonment for a term which may extend to six months, or with
fine which may extend to one thousand rupees, or with both.

(2) Whoever contravenes any of the provisions of this Act or any rule made thereunder
shall, if no other penalty is elsewhere provided by or under this Act for such contravention, be
punishable with fine which may extend to one hundred rupees.
As decided in the case of D.C.and G. Mills v. Shambhu Nath (1968) by the Supreme Court
which states -
J.Desai -

Striking the name of the workman from the rolls by the management is termination of his
service. Such termination of service is retrenchment within the meaning of section 2(00) of the
Act. There is nothing to show that the provisions of section 25F (a) and (b) were complied
with by the management in this case. The provisions of section 25F (a), the proviso apart,
and (b) are mandatory and any order of retrenchment, in violation of ’these two
peremptory conditions precedent, is invalid.

Therefore the retrenchment of workers cannot be held valid as no condition was fulfilled by
the management of Saurashtra Electronics Ltd. (SEL) in accordance with the Industrial
Disputes Act.

18| P a g e
In the case of State Bank of India vs. Workmen , the Supreme Court on similar grounds and
facts as mentioned in the given case held that termination of the employee was a result of the
disciplinary proceedings and was punitive. It was therefore not “retrenchment” within the
meaning of Section 2(oo) of the Act.
The Industrial disputes Act, 1947 provides for the Procedure of Retrenchment in its Section
25(G) which states -

25G. Procedure for retrenchment .—Where any workman in an industrial establishment,

who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen
in that establishment, in the absence of any agreement between the employer and the workman
in this behalf, the employer shall ordinarily retrench the workman who was the last person to
be employed in that category, unless for reasons to be recorded the employer retrenches any
other workman.

In this case there was no condition contrary to the “first come last go” and “last come first
go” principle in the contract agreement of the workers, so this principle was applicable and was
violated by the management of Saurashtra Electronics Ltd. (SEL), as workers were retrenched
not on the basis of seniority but on the basis of participation in strikes.
All principles for strikes were followed by the appellant in accordance with Section 23 of
Industrial Disputes Act,1947 on whose basis the respondent set up disciplinary proceeding
which was biased and erroneously retrenched the workers participating in tThe contention is
that the Saurashtra Electricals Ltd. is a financially successful company as it is one of the largest
electronics component producer company in Delhi and have reported record high profits since
the last decade which makes a strike of 15 days have minimum financial impact on the company
whatsoever.

19| P a g e
 PRAYER

In the light of the issues raised, arguments advanced, reasons given and authorities cited, it is most humbly
prayed before this Hon’ble Court, that it may be pleased to:

1. Declare that, hunger strike is a legal strike as per Industrial dispute Act.

2. Uphold that, the civil and criminal immunity will be granted to the union.

3. Uphold that, the individual dispute of suspending Ramesh Kumar is an industrial dispute.

4. Uphold that, retrenchment of few workers, who were member of Bhartiya Mazdoor Sangh, by the
Management violates the provisions of Industrial Dispute Act, 1947.

And pass any other order, direction, or relief that it may deem fit in the interest of justice, fairness,
equity and good conscience and for this act of kindness the respondents as are duty bound shall
ever pray.

All of which is humbly prayed,

TC-87

(Counsels for the Appellant)

20| P a g e