Bhuvnesh Kumar Dwivedi Vs Hindalco Industries Ltd.

________________________________________________________________________

IN THE HON’BLE SUPREME COURT OF INDIA

In the matter of
Bhuvnesh Kumar Dwivedi
(Appellant)
Vs.

Hindalco Industries Ltd.

(Respondent)
DATE OF SUBMISSION -06/04/17

On submission to the Hon’ble Supreme Court of India

Counsel on behalf of the Appellant

Avishek Pathak

ROLL NO. – 43

Semester IV, Sec- C

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TABLE OF CONTENTS

 List of Abbreviation 3
 Index of Authorities 4
 Case used
 Books & Articles
 Statutes
 Statement of Facts 5-8
 Issues Raised 9
 Statementof Arguments 10-13
 Written Submissions 11-13

 Prayers 14

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LIST OF ABBREVIATION

1. & And

2. Acc. According

3. Govt. Government

4. Ors. Others
5. Hon’ble Honourable

6. I.D.A Industrial Dispute Act

7. U.P.I.D. Uttar Pradesh Industrial Dispute

8. T.L.R. Times Law Reports

9. S. Section

10. Rs. Rupees

11. Vs. Versus

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INDEX OF AUTHORITIES

Cases Referred:
1. Mohan Lal v. Management of Bharat Electronics Ltd. (1981) 3 SCC 225,
2. L. Robert D'Souza v. Executive Engineer, Southern Railway:(1982) 1 SCC 645,
3. Surendra Kumar Verma v. Industrial Tribunal : (1980) 4 SCC 443,
4. Gammon India Ltd. v. Niranjan Das (1984) 1 SCC 509,
5. Gurmail Singh v. State of Punjab (1991) 1 SCC 189
6. Pramod Jha v. State of Bihar (2003) 4 SCC 619
7. Shiv Nandan Mahto v. State of Bihar and Ors(2013) 11 SCC 626
8. Piparaich sugar mills Ltd. Vs Piparaich sugar mills Mazdoor Union, AIR 1957 SC
9. Anoop Sharma v. Executive Engineer, Public Health Division No. 1 Panipat (2010) 5
SCC 497
10. Heinz India (P) Ltd. v. Union of India
11. Syed Yakoob v. K.S. Radhakrishnan AIR (1964) SC 477,
12. Swaran Singh v. State of Punjab (1976) 2 SCC 868
13. P.G.I. of Medical Education and Research v. Raj Kumar (2001) 2 SCC 54
14. Surya Dev Rai v. Ram Chander Rai MANU/SC/0559/2003.
15. Devinder Singh v. Municipal Council, Sanaur (2011) 6 SCC 584
16. Council of Civil Service Unions v. Minister for the Civil Service (1984) 3 All ER 935
17. General Manager, Haryana Roadways v. Rudhan Singh (2005) 5 SCC 591
18. Harjinder Singh v. Punjab State Warehousing Corporation (2010) 3 SCC 192
19. Naresh Kumar Vs State of Himachal Pradesh, 2015 III LLJ 62 (HP)
20. Devendra Kumar C. Solanki Vs State of Gujrat and others, 2015 III LL 493 (Guj)
21. Chief Conservator of forests and anr. Vs Jagannath Maruti Kondhare, (1996) I LLJ
1223 (SC)
22. Miss A. Sundarambal Vs. Government of Goa, Daman and Diu, (1989) I (LLJ) 61
(SC)

 Book Referred: S.N. MISHRA, 28 TH

EDITION, 2016, LABOUR & INDUSTRIAL LAWS

Statutes: 1. U.P. Industrial Disputes Act, 1947 - Section 6N

2. Industrial Disputes Act, 1947 - Section 25B
3. Uttar Pradesh Industrial Disputes Act - Section 17B
4. Industrial Disputes Act, 1947 - Section 1(2),

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5. Industrial Disputes Act, 1947 - Section 2

6. Industrial Disputes Act, 1947 - Section 25F(1),
7. Industrial Disputes Act, 1947 - Section 25N,
8. Minimum Wages Act, 1948;
9. Constitution of India - Article 14,
10. Constitution of India - Article 15,
11. Constitution of India - Article 16,
12. Constitution of India - Article 38,
13.Constitution of India - Article 39,
14. Constitution of India - Article 43A,
15. Constitution of India - Article 136,
16. Constitution of India - Article 226,

WEBSITES REFERRED:

1. www.manupatra.com
2. www.scconline.com
3. www.indiakanoon.org
4. www.legalserviceindia.com
5. www.thebluebook.com
6. www.bhu.ac.in
7. www.muse.jhu.edu
8. www.oxforddictionaries.com
9. www.utpress.utoronto.ca
10. www.freepressjournal.in

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STATEMENT OF JURISDICTION

The petitioner humbly submits before the Hon’ble Supreme Court of India the

memorandum in response to the petition filed in the case of Bhuvnesh Kumar Dwivedi Vs

Hindalco Industries Ltd. Under article 136 of the Indian Constitution.

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STATEMENT OF FACTS

1. Appeals are filed against the final judgment and order dated 10.03.2011 passed by
the High Court of Judicature at Allahabad which allowed the writ petition filed by
the Respondent-employer and setting aside the award passed by the Labour Court
which substituted the same by issuing direction to the Respondent-employer (for
short "the employer") to pay a sum of ` 1,00,000/- as damages to the Appellant-
workman.

2. The Appellant-workman was appointed as Labour Supervisor in the employer's

factory on 30.12.1992 and he worked continuously in the said post till 28.7.1998-
the day on which his services were terminated. It is the case of the Appellant-
workman that he has worked for six calendar years from the date of his
appointment till the termination of his service and he has rendered more than 240
days of continuous service in every calendar year before his termination.

3. The Respondent-employer terminated the services of Appellant-workman on

27.7.1998 as per practice with the reason 'sanction expired'. The Respondent-
employer neither paid retrenchment compensation nor issued any notice or paid
wages in lieu of the same to the Appellant-workman The Respondent-employer
engaged the Appellant-workman for work against a post which was permanent in
nature but his appointment was made only for a temporary period from 1992 to
1998 with oblique motive to deprive his statutory rights.

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ISSUES RAISED

1. Whether expulsion of the Appellant would come under unfair

trade practices under section 25t of the Industrial Dispute Act,
1947?
2. Whether the exercise of power by the High Court Under Articles
226 and 227 of the Constitution and setting aside the award of
reinstatement, back wages and other consequential reliefs and
awarding ` 1,00,000/- towards damages is legal and valid?
3. Whether the workman is entitled for reinstatement with full
back wages and other consequential reliefs?

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__________________________________________________
STATEMENT OF ARGUMENTS

Issue 1:

1.1 Appellant workman within section 2 (s) of I.D.A:

“Workman” means any person employed in any industry to do any manual, unskilled, skilled,
technical, operational, clerical or supervisory work for hire or reward, whether the terms of
employment be express or implied and for the purposes of any proceedings under this Act1.
In relation to an industrial dispute, includes any such person who has been dismissed,
discharged or retrenched in connection with or as a consequence of that dispute or whose
dismissal discharge of retrenchment has led to that dispute.

The Respondent-employer engaged the Appellant-workman for work against a post which
was permanent in nature but his appointment was made only for a temporary period from
1992 to 1998 with oblique motive to deprive his statutory rights. During the entire period of
service of the Appellant-workman with the Respondent-employer, the management followed
the process of annually terminating him from service and again reappointing him in the same
post by assigning the same Badge No., ID No. in the same department of Construction
Division with the marginal increase of salary and dearness allowance per month.

1.2 Termination of Appellant an unfair trade practice

The Respondent-employer neither complied with the aforesaid mandatory provisions

nor did the Respondent pay retrenchment compensation or issue three months notice or notice
pay in lieu of the same. Therefore, as per the Appellant-workman, termination from his
service is in contravention of the provisions of the U.P.I.D. Act and the legal principle laid
down by this Court in catena of cases in this regard which will be adverted into the reasoning
portion of the judgment. Therefore, the Appellant-workman had raised an industrial dispute
with a request to the state government to make reference for adjudication of existing

1
Miss A. Sundarambal Vs. Government of Goa, Daman and Diu, (1989) I (LLJ) 61 (SC)

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industrial dispute regarding the termination of service of the Appellant workman from his
service by the employer.

1.3 Rendering continuous service amounts to unfair practices:

Respondent held that he had rendered continuous service of 240 days in 12 calendar months
and therefore amounts to unfair practices2. Therefore, the Labour Court has held that the
termination order was issued by the Respondent without complying with the mandatory
statutory provisions of Section 6N of U.P.I.D. Act. The Appellant pleaded that neither the
compensation for retrenchment was given to him nor was he issued the three months notice
nor notice pay in lieu of the same as mandated Under Section 6N of the U.P.I.D. Act.

1.4 Keeping workman as Badli Workers was unfair labour practice

Discrepancy in payment of wages is to be construed as unfair labour practice as defined

under section 2(ra) of the I.D.A.3. Appellant-workman that in accordance with the regular
orders passed in the practice of the Company, the concerned workman always fell in the
category of workman but due to the improper and unfair labour practice as mentioned in
Schedule V Under Section 2(ra) of the I.D. Act it has kept the Appellant as temporary
workman for the period 'of employment, which is opposed to law and if badlis or temporary
workers are continued for long years, the object is manifestly to deprive them of the status of
the permanent employees and this amounts to unfair labour practice on the part of the
employer4.

Therefore, though the Labour Court came to the conclusion on facts, evidence on record and
law on this aspect that keeping the workman as Badli worker was unfair labour practice. The
contentions of the respondents should not be considered because of the following reasons:

(i) Firstly, the Respondent has not produced any material evidence on record before the
Labour Court to prove that it meets all the required criteria under the Contract Labour
(Regulation and Abolition) Act, 1970, to be eligible to employ employees on contractual
basis which includes license number etc.
(ii) Secondly, the Respondent could not produce any material evidence on record before the
Labour Court to show that the Appellant was employed for any particular project(s) on the

2
Naresh Kumar Vs State of Himachal Pradesh, 2015 III LLJ 62 (HP)
3
Devendra Kumar C. Solanki Vs State of Gujrat and others, 2015 III LL 493 (Guj)
4
Chief Conservator of forests and anr. Vs Jagannath Maruti Kondhare, (1996) I LLJ 1223 (SC)

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completion of which his service has been terminated through non-renewal of his contract of
employment.

The High Court has erroneously held that engagement of some workers as Badli workers is a
standard practice in several establishments and is quiet permissible under law. The High
Court came to erroneous conclusion that the Appellant did resign and having stated so, the
High Court further made observation that the least which was required from the Respondent
under such circumstance, was to pay retrenchment compensation to the Appellant in terms of
Section 6N of the U.P.I.D. Act which was admittedly not done.

(i) Firstly, the Respondent has not produced any material evidence on record before the
Labour Court to prove that it meets all the required criteria under the Contract Labour
(Regulation and Abolition) Act, 1970, to be eligible to employ employees on contractual
basis which includes license number etc.
(ii) Secondly, the Respondent could not produce any material evidence on record before the
Labour Court to show that the Appellant was employed for any particular project(s) on the
completion of which his service has been terminated through non-renewal of his contract of
employment.

Issue 2:

2.1 Setting aside the award of reinstatement with back wages and other consequential
benefits is not valid

By taking the reliance of the said judgement of Harjinder Singh v. Punjab State Warehousing
Corporation5 it can be sorted that the finding and reasons recorded by the High Court in
reversing and setting aside the award of reinstatement with back wages and other
consequential benefits and substituting its award with award of ` 1,00,000/- as damages is
erroneous in law since the action of the Respondent in terminating the services of the
Appellant is in contravention of Section 6N of the U.P.I.D. Act.

5
MANU/SC/0060/2010 : (2010) 3 SCC 192

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In the said case of General Manager, Haryana Roadways v. Rudhan Singh6 , the three Judge
Bench of this Court considered the question whether back wages should be awarded to the
workman in each and every case of illegal retrenchment

In Council of Civil Service Unions (CCSU) v. Minister for the Civil Service7 Lord Diplock
summed up the permissible grounds of judicial review:

'Illegality' as a ground for judicial review where the decision-maker must understand
correctly the law that regulates his decision-making power and must give effect to it. Whether
he has or not is par excellence a justiciable question to be decided, in the event of dispute, by
those persons, the judges, by whom the judicial power of the State is exercisable.

‘Irrationality' applies to a decision which is so outrageous in its defiance of logic or of

accepted moral standards that no sensible person who had applied his mind to the question to
be decided could have arrived at it.

Further in a case of Devinder Singh v. Municipal Council, Sanaur8 it was held: A careful
analysis thereof reveals that the High Court neither found any jurisdictional infirmity in the
award of the Labour Court nor it came to the conclusion that the same was vitiated by an
error of law apparent on the face of the record. Notwithstanding this, the High Court set aside
the direction given by the Labour Court for reinstatement of the Appellant by assuming that
his initial appointment/engagement was contrary to law and that it would not be in public
interest to approve the award of reinstatement after long lapse of time.
The approach adopted by the High Court in dealing with the award of the Labour Court was
ex facie erroneous and contrary to the law laid down in various precedents9

6
MANU/SC/0408/2005 : (2005) 5 SCC 591
7 (1984) 3 All ER 935
8 MANU/SC/0426/2011 : (2011) 6 SCC 584
9
Syed Yakoob v. K.S. Radhakrishnan MANU/SC/0184/1963 : AIR (1964) SC 477, Swaran Singh v. State of Punjab MANU/SC/0060/1975
: (1976) 2 SCC 868, P.G.I. of Medical Education and Research, Chandigarh v. Raj Kumar MANU/SC/0829/2000 : (2001) 2 SCC 54, Surya
Dev Rai v. Ram Chander Rai MANU/SC/0559/2003.

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2.2 The judgement of high court is out of its jurisdiction:

The jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the court
exercising it is not entitled to act as an appellate court. This limitation necessarily means that
findings of fact reached by the inferior court or tribunal as result of the appreciation of
evidence cannot be reopened or questioned in writ proceedings. An error of law which is
apparent on the face of the record can be corrected by a writ, but not an error of fact, however
grave it may appear to be. In regard to a finding of fact recorded by the tribunal, a writ of
certiorari can be issued if it is shown that in recording the said finding, the tribunal had
erroneously refused to admit admissible and material evidence, or had erroneously admitted
inadmissible evidence which has influenced the impugned finding.

In the judgment of Swaran Singh v. State of Punjab10, this Court reiterated the limitations of
certiorari jurisdiction indicated in Syed Yakoob v. Radhakrishnan11 and observed:
In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued
only if in recording such a finding, the tribunal has acted on evidence which is legally
inadmissible, or has refused to admit admissible evidence, or if the finding is not supported
by any evidence at all, because in such cases the error amounts to an error of law. The writ
jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in
excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them
or they act illegally or improperly in the exercise of their jurisdiction causing grave
miscarriage of justice.

Court in the case of U.P. State Sugar Corporation Ltd., the provisions of the U.P.I.D. Act
remain unaffected by the provision of the I.D. Act because of the provision in Section 31 of
the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956. Hence,
Section 2(oo)(bb) is not attracted in the present case12.

In Heinz India (P) Ltd. v. Union of India13 , this Court, on the issue of the power of the High
Court for judicial review Under Article 226, held as under:
The scope and extent of the power that is so very often invoked has been the subject-matter
of several judicial pronouncements within and outside the country.

10
Ibid
11
Ibid
12
Supra9
13
MANU/SC/0229/2012 : (2012) 5 SCC 443

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Issue 3:
3.1 Appellant is entitled to be reinstated and get back wages

Retrenchment connotes in its ordinary acceptance that the business itself is being continued,
but that a portion of the staff of labour force is discharged as surplusage14.

Section 6N of the U.P.I.D. Act which is in pari materia to Section 25N of the I.D. Act
derives:

6-N. Condition 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 notice wages for the period of the notice;
Provided that no such notice shall be necessary if the retrenchment is under an agreement
which specifies the date of termination of service;

(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 service or any part thereof
in excess of six months; and

(c) notice in the prescribed manner is served on the State Government

No workman employed in any industry who has been in continuous service for not less than
one year under an employer can be retrenched by that employer until the conditions
enumerated in Clauses (a) and (b) of Section 25F of the Act are satisfied15.

14
Piparaich sugar mills Ltd. Vs Piparaich sugar mills Mazdoor Union, AIR 1957 SC 95
15
Anoop Sharma v. Executive Engineer, Public Health Division No. 1 Panipat (2010) 5 SCC 497

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Clause (b) casts a duty upon the employer to pay to the workman at the time of
retrenchment, compensation equivalent to fifteen days' average pay for every completed
year of continuous service or any part thereof in excess of six months.

The Supreme Court has repeatedly held that Section 25F(a) and (b) of the Act is mandatory
and non-compliance thereof renders the retrenchment of an employee nullity16

Leaving aside the legal semantics, the termination of service of an employee by way of
retrenchment without complying with the requirement of giving one month's notice or pay in
lieu thereof and compensation in terms of Section 25F(a) and (b) has the effect of rendering
the action of the employer as nullity and the employee is entitled to continue in employment
as if his service was not terminated. And therefore we can derive that the termination of
service of the Appellant was illegal and void ab initio.

In the case of Shiv Nandan Mahto v. State of Bihar and Ors.17 It was held that if a workman
is kept out of service due to the fault or mistake of the establishment/company he was
working in, then the workman is entitled to full back wages for the period he was illegally
kept out of service.

16
Mohan Lal v. Management of Bharat Electronics Ltd. (1981) 3 SCC 225, L. Robert D'Souza v. Executive Engineer,
Southern Railway:(1982) 1 SCC 645, Surendra Kumar Verma v. Industrial Tribunal : (1980) 4 SCC 443, Gammon India
Ltd. v. Niranjan Das (1984) 1 SCC 509, Gurmail Singh v. State of Punjab (1991) 1 SCC 189 and Pramod Jha v. State of
Bihar (2003) 4 SCC 619
17
(2013) 11 SCC 626

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PRAYER FOR RELIEF

In the light of the facts stated, arguments advanced and authorities cited, Appellant,
humbly prays before the honourable court to adjudge and declare that:

1. The expulsion of appellant from the company was done with unfair labour
practice and therefore need to be declared void.
2. The exercise of power by the High Court Under Articles 226 and 227 of the
Constitution and setting aside the award of reinstatement, back wages and other
consequential reliefs and awarding ` 1,00,000/- towards damages is illegal and
and is to be declared invalid.
3. The appellant being the victim is entitled to receive reinstatement and back
wages.

The Court may also be pleased to pass any other order, which the court may deem fit
in light of justice equity and good conscience.

All of which is most humbly prayed

Date: 06/04/2017 Counsel for Appellant

Avishek Pathak

Hidayatullah National Law University, Raipur