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1ST SURANA & SURANA & SCHOOL OF LAW, RAFFLES UNIVERSITY LABOUR LAW MOOT

COURT COMPETITION, 2018

IN THE HON’BLE SUPREME COURT OF INDIA

ORIGINAL WRIT JURISDICTION

W.P No.___/2018

W.P No.___/2018

IN THE MATTER OF ART. 12, 14, and 136 OF THE CONSTITUTION OF INDIA

TRADE UNION OF WORKERS………………….………………..……….…………………………..……………………….PETITIONER

V.
UNNATI INDUSTRIAL CORPORATION…….…………………………………………………………….………………….RESPONDENT

BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF

THE HON’BLE SUPREME COURT OF INDIA

MEMORIAL FILED ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF PETITIONER


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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ............................................................................................................... ii


INDEX OF AUTHORITIES ............................................................................................................... iii
STATEMENT OF JURISDICTION ..................................................................................................... vi
STATEMENT OF FACTS ............................................................................................................... viii
ISSUES PRESENTED ...................................................................................................................... ix
SUMMARY OF ARGUMENTS ......................................................................................................... x
ARGUMENTS ADVANCED ............................................................................................................. 1
ISSUE 1: WHETHER THE INSTANT PETITION IS MAINTAINABLE? ........................................................ 1
[1.1] There Is A Substantive Question Of Law And Public Importance ........................................... 2
1.2]- There Has Been An Instance Of Grave Miscarriage Of Justice In The Current Matter ........... 3
ISSUE 2: WHETHER THE STATE GOVERNEENT OF ZAFHISTHAN HAS PURPOSELY IGNORED THE
MATTER OF CHILD LABOUR? .............................................................................................................. 4
[2.1] Unnati Industrial Corporation Is Liable Of Employing Child Labour. ...................................... 5
[2.2] It Is The Duty Of The State To Protect The Interests Of The Child ......................................... 6
[2.3] The State Government Has Purposely Ignored The Matter Of Child Labour. ........................ 8
ISSUE 3: WHETHER THE CANTEEN WORKERS ARE ENTITLED TO EQUAL WAGES AS THE OTHER CLASS IV
EMPLOYEES OF THE ENTIRE UIC UNIT ........................................................................................................ 9
[3.1] All The Workers Of The Canteen Cum Food Court Should Be Made Permanent Members Of
The UIC ............................................................................................................................................ 9
[3.2]The Canteen Workers Should Be Paid Equal Wages As Compared To The Rest Of The
Employees ..................................................................................................................................... 11
ISSUE 4- WHETHER THE BURDEN OF PAYING THE GST SHOULD BE BORNE BY UIC OR NOT.............................. 15
[4.1] The UIC Forms A Part Of The State Under Article 12 Of Constitution Of India .................... 15
[4.2] Contract Between Bhola Prasad And UIC Stands Frustrated And The Burden Of Payment Of
The Remainder Amount Of GST Be Shifted To UIC . ..................................................................... 18
[4.3]The Contract Between UIC And Mr Bhola Stands Frustrated. .............................................. 18
PRAYER ................................................................................................................................................. 21

MEMORIAL ON BEHALF OF PETITIONER


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LIST OF ABBREVIATIONS

Abbreviation Expanded Form

AIR All India Reporter

All ER All England Reporter

DLT Delhi Law Times

Edn. Edition

GLT Gujrat Law Times

ITR Income Tax Reporter

Kar. Karnataka

KLT Kerala Law Times

Ltd. Limited

Mah Maharashtra

MLJ Madras Law Journal

MP LJ Madhya Pradesh Law Journal

P. Page Number

Para Paragraph

PSU Public Sector Company

PTC Patent and Trade Mark Cases

Pvt. Private

SC Supreme Court

SCC Supreme Court Cases

Sec Section

U.K. United Kingdom

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INDEX OF AUTHORITIES

CASES

1. Ajay Hasia v Khalid Mujib, 1981 AIR 487 ............................................................................. 16


2. Bachpan Bachao Aandolan v. Union of India and Ors. [2011] INSC 403 ................................ 6
3. C.C.E v Standard Motor Products (1989) A.I.R. 1298 (SC) ..................................................... 4
4. Chhedi Lal Gupta & Ors. vs Mohammad Sattar reported in AIR (1963) Allahabad 448 ......... 8
5. D.S. Nakara v. Union of India; (1983) 1 SCC 304 .................................................................. 12
6. Devendra Kumar vs Govt. Of NCt Of Delhi And Ors,, W.P. (C) 5198/2010 and 1985/2011 10
7. DhirendraChamoli v. State of U.P; (1986) 1 SCC 637 ............................................................ 12
8. Diwan Bros. v. Central Bank of India, A.I.R. 1976 SC 1503 .................................................... 2
9. East India Hotels Ltd. v. Syndicate Bank, 1992 Supp (2) S.C.C. 29 ......................................... 2
10. Government of W.B. v. Tarun K. Roy, (2004) 1 SCC 347 ..................................................... 12
11. Hayath Khan vs The Deputy Labour Commissioner ILR 2005 KAR 6001 ............................. 6
12. In Maharashtra State Board of Secondary and Higher Education vs. K.S. Gandhi [(1991) 2
SCC 716].................................................................................................................................... 7
13. Jerin Ayesha Zaman vs The State .............................................................................................. 6
14. M. Nagaraj v Union of India (2006) 8SCC 212: AIR 2007 SC 71 .......................................... 10
15. M.C Mehta v State of Tamil Nadu, AIR 1997 SC 699 .............................................................. 5
16. NarmadShankerAwasthi and Another v The Central Administrative Tribunal
Lko.BenchLko.AndOrs., (2018) 1 ADJ 758 ............................................................................ 13
17. Northern India Caterers Private Ltd., &Anr. V State of Punjab, 1967 AIR 1581 ................... 11
18. Orissa University of Agriculture & Technology v. Manoj K. Mohanty, (2003) 5 SCC 188 .. 12
19. Pawan Kumar v. State of Haryana (2003)11 S.C.C. 241 ........................................................... 3
20. R.D. Shetty v International Airport Authority, 1979 AIR 1628 ........................................ 15, 16
21. Randhir Singh v Union of India and ors, 1982 SCR (3) 298 ................................................... 14
22. SatyabrataGhose versus MugneeramBangur& Co & Anr (AIR 1954 SC 44)......................... 20
23. Shantilal v State of Gujarat, AIR 1981 SC 212 ....................................................................... 16
24. Sheela Barse and others vs Union of India and others [1983] INSC 11 ................................... 7
25. Som Prakash v Union of India, AIR 1981 SC 212 .................................................................. 15
26. Srirama Babu v. Chief Scretary AIR 1998 (1) KAR LJ 191 ..................................................... 6
27. State of Haryana v. Charanjit Singh; (2006) 9 SCC 321 ......................................................... 12
28. State of Haryana v. Jasmer Singh; (1996) 11 SCC 77 ............................................................. 12

MEMORIAL ON BEHALF OF PETITIONER


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29. State of Haryana v. Tilak Raj, (2003) 6 SCC 123 ................................................................... 12


30. State of Punjab and Ors. v. Jagjit Singh and ors, (2017) 1 SCC 148................................. 12, 13
31. Surinder Singh v. Engineer-in-Chief, CPWD; (1986) 1 SCC 639 .......................................... 12
32. Thirumala Tirupati Devasthanams vs Thallappaka Ananthacharyulu 2007 (6) ALT 472 ....... 8

STATUTES

1. Child labour (prohibition and regulation act) 1986


2. Constitution of India
3. Industrial disputes act 1947
4. Civil Procedure Code, 1908
5. The Companies Act, 2013
6. The Contract Labour (Regulation and Abolition) Act, 1970, Rule 25(v)(2
7. The Industrial Disputes Act, 1947

OTHER AUTHORITIES

1. International Labour Law by IstvanSzaszy p. 265 ................................................................................ 11


2. International Labour Organization - Specialized agency of the United Nations .................................. 11
3. Pollock &MullaOn Indian Contract and Specific Relief Acts .............................................................. 17

BOOKS
1. Jain M P, Indian Constitutional Law, (7th Ed. Lexis Nexis, 2016).
2. Durga Das Basu, Commentary On The Constitution Of India (2011)
3. H.M. Seervai, Constitutional Law Of India, A Critical Commentary (2006)
4. H.M. Seervai, Constituinal Law Of India Volume 1 (4th Ed. 2008)
5. H.M. Seervai, Constituinal Law Of India Volume 2 (4th Ed. 2008)
6. M. Hidyatullah, Constitutional Law Of India (1st Ed. 1984)
7. Kailash Rai, Constitutiona Law Of India
8. Majumdar, Commentary On Constitution Of India ( 11th Ed. 2014)

MEMORIAL ON BEHALF OF PETITIONER


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ONLINE SOURCES

1. Manupatra Online Resources http://www.manupatra.com.


2. Lexis Nexis Academica http://www.lexisnexis.com/academica.
3. Lexis Nexis Legal http://www.lexisnexis.com/in/legal.
4. SCC Online http://www.scconline.co.in
5. Westlaw http://www.westlaw.com

MEMORIAL ON BEHALF OF PETITIONER


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STATEMENT OF JURISDICTION

The Petitioner has the honour to submit before the Hon’ble Supreme Court of India, the

memorandum for the Petitioner under Article 136 of the Constitution of India, 1950 and

Article 139 (a) of the Constitution of India, 1950.

Article 136 of the Constitution of India reads as:

136. Special Leave To Appeal By The Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,

grant special leave to appeal from any judgment, decree, determination, sentence or order in

any cause or matter passed or made by any court or tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination, and sentence or order

passed or made by any court or tribunal constituted by or under any law relating to the

Armed Forces.

Article 139 (a) of the Constitution of India reads as:

139A. Transfer of certain cases

(1) Where cases involving the same or substantially the same questions of law are pending

before the Supreme Court and one or more High Courts or before two or more High Courts

and the Supreme Court is satisfied on its own motion or an application made by the Attorney

General of India or by a party to any such case that such questions are substantial questions

of general importance, the Supreme Court may withdraw the case or cases pending before

the High Court or the High Courts and dispose of all the cases itself: Provided that the

Supreme Court may after determining the said questions of law return any case so withdrawn

together with a copy of its judgment on such questions to the High Court from which the case

MEMORIAL ON BEHALF OF PETITIONER


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has been withdrawn, and the High Court shall on receipt thereof, proceed to dispose of the

case in conformity with such judgment

(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer

any case, appeal or other proceedings pending before any High Court to any other High

Court

MEMORIAL ON BEHALF OF PETITIONER


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STATEMENT OF FACTS

COUNTRY AND THE LAW

Unnati Industrial Corporation (UIC) is a public sector undertaking in India and it employs
about 5000 employs and workers in its Unnati complex. Among other facilities such as
furniture and electricity, etc, the corporation also runs a school called UnnatiShiksha Kendra
for the children and officers and workers of UIC. In addition, the UIC has a canteen run by a
contractor called Bhola Prasad under the supervision of the UIC canteen and management
committee.

PARTIES TO THE DISPUTE

The Petitioner to the current writ petition is the Trade Union of Canteen workers. These
workers work at the UIC canteen under Mr Bhola. The Respondent is Unnati Industrial
Corporation which provided facilities like UnnatiShiksha Kendra and Unnati Canteen for
workers in UIC.

CAUSE OF ACTION

Bhola Prasad submitted a written memorandum to the committee saying that he is unwilling
to pay the GST as due to it, he receives no profit from the canteen. However, the committee
refused to increase the prices of the canteen facilities, and therefore, Bhola Prasad shut the
canteen pointing the uncooperativeness and irresponsibility of the workers.

ACTION TAKEN BY PARTIES

Following this, the matter reached the Industrial tribunal. The tribunal directed the UIC to
reinstate employment of the workers and hence make it permanent. The award was
challenged in the Hon'ble High Court of Zafhisthan, the case was decided in favour of the
UIC. The Union filed for an appeal which has been clubbed with the issue of child labour that
had been ignored till now.

MEMORIAL ON BEHALF OF PETITIONER


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ISSUES PRESENTED

ISSUE 1:

WHETHER THE INSTANT PETITION IS MAINTAINABLE?

ISSUE 2:

WHETHER THE STATE GOVERNEENT OF ZAFHISTHAN HAS PURPOSELY IGNORED THE

MATTER OF CHILD LABOUR

ISSUE 3:

WHETHER THE CANTEEN WORKERS ARE ENTITLED TO EQUAL WAGES AS THE OTHER

CLASS IV EMPLOYEES OF THE ENTIRE UIC UNIT

ISSUE 4:

WHETHER THE BURDEN OF PAYING THE GST SHOULD BE BORNE BY UIC OR NOT

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SUMMARY OF ARGUMENTS

ISSUE 1- WHETHER THE INSTANT PETITION IS MAINTAINABLE?

It is humbly contented that the appeal filed under Art. 136 of the Indian constitution are
maintainable, as there is a there is a substantive question of law and public importance and
there has been an instance of grave miscarriage of Justice in the current matter.

ISSUE 2- WHETHER THE STATE GOVERNMENT OF ZAFHISTHAN HAS PURPOSELY IGNORED


THE MATTER OF CHILD LABOUR

It is contended that four workers employed in the canteen in Unnati Industrial Corporation
come under the definition of a child under the Child labour act 1986 as amended in 2016.
UIC has employed children below the age of 14. The state having a duty to protect the
children's interests. The state government has purposely ignored the matter of child labour
not referring the matter to the Industrial tribunal.

ISSUE 3- WHETHER THE CANTEEN WORKERS ARE ENTITLED TO EQUAL WAGES AS THE
OTHER CLASS IV EMPLOYEES OF THE ENTIRE UIC UNIT

It is contended before this Hon’ble Court that the workers of the canteen are entitled to the
same amount in wages as the rest of the class IV employees in the UIC circuit, as they should
be classified as permanent workmen as the rest of the members of the UIC and consequently,
all workers should be remunerated equally for equal work.

ISSUE 4- WHETHER THE BURDEN OF PAYING THE GST SHOULD BE BORNE BY UIC

It is contended before this Hon’ble Court that the UIC forms a part of the State under Article
12 of Constitution of Indiaand consequently, the contract between Bhola Prasad and UIC
stands frustrated and the burden of payment of the remainder amount of GST be shifted to
UIC.

MEMORIAL ON BEHALF OF PETITIONER


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ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE INSTANT PETITION IS MAINTAINABLE?

It is humbly contented that the appeal filed under Art. 136 of the Indian constitution are

maintainable. This Article confers a plenary jurisdiction upon the court in the widest terms

possible. It is contended that the jurisdiction of the Hon’ble Court can always be invoked

whenever there is a flagrant violation of any law or whenever there is any general question of

public importance even a question fact can also be a subject matter under this Art. . In the

present case there was violation of Sec. 3of Child and Adolescent Labour (Prohibition and

Regulation) Act, 2016 which has raised a general question of public importance and also has

caused substantial and grave injustice.

The counsel humbly submits that the appeal filed under Art.1361 of the Indian constitution is

maintainable. This article confers on the Hon’ble Court in the widest possible terms, a

Plenary Jurisdiction exercisable outside the purview of ordinary jurisdiction to meet the

pressing demands of justice. It is contended that the jurisdiction of Supreme Court under

Art.1362 can always be invoked when a question of law of general public importance arises

and even a question of fact can also be a subject matter of judicial review under Art.136. The

article confers residuary power on SC to do justice where the court is satisfied that there is

substantial and grave injustice. In the present case there has been grave injustice caused to

the petitioners, as the State Government had deliberately tried to keep away the matter of

child labour.

It is further contended that even where a statue provides for finality to its decisions, the

power of Supreme Court under Art. 136 to grant special leave petition can still be exercised,
1
Article 136, Constitution of India
2
Supra Note 1
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which cannot be taken away3.Mere existence of alternative relief is not a bar for granting

leave under Art. 1364.

Under this article, Supreme Court shall have the power to grant special leave to appeal8:

a) from any judgement, decree, determination, sentence or order;

b) in any cause or matter;

c) Passed or made by any court or tribunal in the territory of India.

[1.1] THERE IS A SUBSTANTIVE QUESTION OF LAW AND PUBLIC IMPORTANCE

The counsel humbly contends that in the present case the ‘substantial’ question of laws are

involved. A finding of facts may give rise to a substantial question of law, and therefore, the

SC is not precluded from going into the question of facts. Art. 136 of the Indian Constitution

use the wording ‘in any cause or matter’9. This gives widest power to this Hon’ble court to

deal with any cause or matter, even if it involves question of fact. The jurisdiction conferred

upon the Supreme Court is corrective one and not a restrictive one10. Where there is either a

flagrant violation of a mandatory provision of any statute or any provision, a duty is enjoined

upon the exercise of the same by setting right the illegality in the judgment of the HC as it is

well settled that illegality should not be allowed to be perpetrated and failure by the SC to

interfere with the same would amount to allowing the illegality to be perpetrated11.

It is contended that in the present the State erred by ignoring the issue of Child Labour.

Further, proper inquiries were not conducted regarding the termination of three employees.

Also, employing kids in the canteen violates mandatory provisions of Child and Adolescent

Labour (Prohibition and Regulation) Act, 2016and the JJ Rules, 2007 by the competent

authorities and hence, incorrect in law.

3
Diwan Bros. v. Central Bank of India, A.I.R. 1976 SC 1503
4
East India Hotels Ltd. v. Syndicate Bank, 1992 Supp (2) S.C.C. 29

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It is further contended that if the inquiries are not conducted in a transparent and fair manner,

it amounts to the violation of principles of fairness and natural justice5. In the present matter,

the three employees have been terminated without being provided a notice, without the

conduction of a proper inquiry. This amounts to the violation of principles of natural justice

(audi alterum partem) and denial of fair hearing which is a grave and a substantial ground.6

1.2]- THERE HAS BEEN AN INSTANCE OF GRAVE MISCARRIAGE OF JUSTICE IN THE CURRENT

MATTER

The counsel humbly submits that in the present case there is substantial and grave injustice. It

is contended that in the present case both the have suffered the wrath of a company. They

have been fired without a reasonable time or a notice. The Corporation has hired children and

they were well aware of the fact. Despite the fact that aiding and abetting to a federal offence

is also a federal offence, the Corporation negligently allowed Child Labour to carry on in the

premises. Thus, the Corporation had caused the abuse of power. Also since the contract

happened before the enactment of the taxation statute i.e. GST. This implies the contract

stands frustrated and thus, there is no liability on the Petitioners. It is a well established

principle a service provider shall generally pay the GST.However, the circumstances in this

matter are extraordinary. Thus, causing substantial and grave injustice by violating the well

established principle.

The counsel further contends that Art.136 of the Indian Constitution is the residuary power of

SC to do justice where the court is satisfied that there is injustice. Thus, considering all the

above authorities, it is humbly submitted before this Hon’ble court that in the present case

5
Pawan Kumar v. State of Haryana (2003)11 S.C.C. 241
6 th
5 Vol. Durga Das Basu, Commentaries on the Constitution of India, (8 th Edition, 2009)
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there is substantive and grave injustice caused to the Appellants and hence, the appeal is

maintainable under Art.1367 of the Indian Constitution.

It has also been held by this Hon’ble court that when a question of general public importance

arises, or a decision shocks the conscience of the court, its jurisdiction can always be

invoked. The Hon’ble court has also held the court would never do injustice nor will allow

injustice to be perpetrated for upholding the technicalities8.

Hence, considering all the above authorities, it is humbly submitted before the Hon’ble court

that the present matter involves a question of law of general public importance and therefore,

the appeal is maintainable under Art.136 of the Indian Constitution.

ISSUE 2: WHETHER THE STATE GOVERNEENT OF ZAFHISTHAN HAS

PURPOSELY IGNORED THE MATTER OF CHILD LABOUR?

Unnati Industrial Corporation is a Public Sector Undertaking that, in its complex, called

'Unnati complex', among other services, provides a canteen-cum-food court facility to all

those who work in the complex. The canteen employs a total of 18 workers, of which four

workers are children. It is evident from the facts of the case that the canteen employs two

children of the age 12 and two other children of the age 13 years and 8 months, and 13 years

and 5 months respectively. According to section 3 of Child labour (prohibition and regulation

act) 1986 as amended in 2016, a child is defined as a person who has not completed his

fourteenth year, and an adolescent is a person who has completed his fourteenth year but not

his eighteenth year. In the present case, the above mentioned persons are all of the age below

7
Supra Note 1
8
C.C.E v Standard Motor Products (1989) A.I.R. 1298 (SC)

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14. Therefore it is humbly submitted before the court that four workers employed in the

canteen in Unnati Industrial Corporation come under the definition of a child under the Child

labour (prohibition and regulation act) 1986 as amended in 2016. In this light it is averred

that, UIC is liable of employing children [2.1] and the state has a duty to protect the children's

interests [2.2] and the state government has purposely ignored the matter of child labour[2.3].

[2.1]UNNATI INDUSTRIAL CORPORATION IS LIABLE OF EMPLOYING CHILD LABOUR.

The Child labour (Prohibition and regulation) Act [hereinafter referred to as the act]9

provides that no child is employed or permitted to work in any occupation or process.The

Child Labour (Prohibition and Regulation) Act, 1986, was legislated with an intent to

prohibit the engagement of children in all occupations and to prohibit the engagement of

adolescents in hazardous occupations and processes and the matters connected therewith or

incidental thereto. The intent of the legislation very clearly establishes the grave importance

of the present act and the imminent necessity to institute a prohibition on the same.

In M.C.Mehta v. State of T.N10, The Supreme Court directed that the employers of children

below 14 years must comply with the provisions of the Child Labour (Prohibition and

Regulation) Act providing for compensation, employment of their parents / guardians and

their education. The employment of children below the age of 14 grossly violates the child's

right to a fruitful childhood and tampers with their all round development and childhood.

Although children in the age group of 14-18 years, now known as adolescents cannot be

employed in any form of hazardous activities and processes, children below the age group of

14 cannot be involved in any kind of employment.11 In the present case, the children are

made to work in the canteen of UIC.

9
Child labour (prohibition and regulation act) 1986
10
M.C Mehta v State of Tamil Nadu, AIR 1997 SC 699
11
Hayath Khan vs The Deputy Labour Commissioner ILR 2005 KAR 6001
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In A. SriramaBabu vs. The Chief Secretary to the Government of Karnataka, Bangalore and

Others12, it was observed that , 'although many of the economic activities in which children

are engaged have not yet been categorised as "hazardous" with respect to the Child Labour

Act and are, therefore, not on the list of banned occupations, they do indeed pose a risk to the

health, growth and well-being of the children concerned.' In BachpanBachaoAandolan v.

Union of India and Ors.,13 it was opined that child labour, among other things, led to

'Deprivation of the child from playing and expression of thoughts and feelings, thereby

violating the fundamental right to freedom of expression. 'Unnati Industrial Corporation, in

its canteen employs four children below the age of 14. The intent of the legislators on passing

the child labour act is to ensure the that the development of children in all spheres in their

primitive years are not curbed at any level. Legislations like the Child Labour (Prohibition &

Regulation) Act, 1986 were passed to regulate the fundamental rights of citizens vis-à-vis

other citizens.14 By employing the children below 14 years of age in child labour, Unnati

Industrial corporation has successively indulged in constraining the holistic development of

the children. Therefore, it is humbly submitted to this honourable court that Unnati Industrial

Corporation has, by employing children below 14 years, violated the said act and therefore

must be held liable.

[2.2]- IT IS THE DUTY OF THE STATE TO PROTECT THE INTERESTS OF THE CHILD

The state is the guardian of its people. It is the duty of the state to guard the rights of every

child. In BandhuaMuktiMorcha v. Union of India,15Bhagwati J upheld that the state must

protect the tender age of children against abuse, opportunities and facilities of children to

develop in a healthy manner and in conditions of freedom and dignity, educational facilities,

12
SriramaBabu v. Chief Scretary AIR 1998 (1) KAR LJ 191
13
BachpanBachaoAandolan v. Union of India and Ors. [2011] INSC 403
14
Jerin Ayesha Zaman vs The State [2018]
15
BandhuaMuktiMorcha v. Union of India [1984] 2 S.C.R. 67
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just and humane conditions of work and maternity relief.Sheela Barse and others vs Union of

India and others16 , Bhagawati, C.J. said that " The Nation's children a supremely important

asset. The state must provide better social and educational development to the children of

India.. Their nurture and solicitude is the state's responsibility. Under article 39 (f) of the

Indian constitution, it becomes the states duty to see that that children are given opportunities

and facilities to develop in a healthy manner and in conditions of freedom and dignity and

that childhood and youth are protected against exploitation and against moral and material

abandonment. Under article 45, that was inserted after the landmark case of Unnikrishnan J.P

and Others v State of Andhra Pradesh and Others17, a duty is cast on the State to endeavour to

provide free and compulsory education to children. In Maharashtra State Board of Secondary

and Higher Education vs. K.S. Gandhi18 , right to education at the secondary stage was held

to be a fundamental right.

Under article 39 (e), the state sees that the tender age of children are not abused and that

citizens are not forced by economic necessity to enter avocations unsuited to their age or

strength. Under article 39 (f), the state ensures that that childhood and youth are protected

against exploitation and against moral and material abandonment. Therefore, it is incumbent

upon the State to provide facilities and opportunity as enjoined under Article 39(e) and (f)of

the Constitution and to prevent exploitation of their childhood due to indigence and

vagary.19 This means that the state is duty bound to protect the rights of the child. It is the

responsibility of the state to provide the child with a healthy environment for holistic

development.

16
Sheela Barse and others vs Union of India and others [1983] INSC 11
17
Unnikrishnan J.P and Others v State of Andhra Pradesh and Others 1993 AIR 2178
18
In Maharashtra State Board of Secondary and Higher Education vs. K.S. Gandhi [(1991) 2 SCC 716]
19
supra^ 6
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[2.3] - THE STATE GOVERNMENT HAS PURPOSELY IGNORED THE MATTER OF CHILD LABOUR.

Section 10.(1) d of the Industrial disputes act 1947, provides that, Where the appropriate

Government is of opinion that any industrial dispute exists or is apprehended, it may by an

order in writing refer the dispute or any matter appearing to be connected with, or relevant to,

any matter specified, in the Second Schedule or the Third Schedule, to a Tribunal for

adjudication. It is deciphered from the facts that when the State government of Zafhisthan

referred the dispute to the Industrial tribunal, it directed the tribunal to restrict its adjudication

only to the issues relating to the nature of employment of canteen workers and determination

of salaries reinstatement in case it is made. The state government did not refer the issue

regarding child labour and the burden of bearing GST, that was initially raised by the Union

before the management of UIC.

Although the Industrial Disputes act 1947 confers the right to the state government to refer

certain matters to the Industrial disputes, but the state government by asking the tribunal to

confine its adjudication only on specific issues and not the issue of child labour is said to

have acted outside its jurisdiction. It must be pointed out that only the High Court 20 and the

Supreme courts under the articles 226 and 32 respectively can issue a writ of Prohibition to a

lower court or tribunal directing the judge and the parties to cease the litigation because the

lower court does not have a proper jurisdiction to hear or determine the matters before it.21 In

the same manner as this order can be issued only against a judicial and quasi-judicial body

and not against a legislative or administrative body, It can only be issued a judicial body and

not a legislative body or administrative body. The UIC is clearly liable of employing child

labour.

20
Chhedi Lal Gupta &Ors. vs Mohammad Sattar reported in AIR (1963) Allahabad 448
21
Thirumala Tirupati Devasthanams vs Thallappaka Ananthacharyulu 2007 (6) ALT 472
MEMORIAL ON BEHALF OF PETITIONER
1st Surana and Surana and School of Law, Raffles University Labour Law Moot Court Competition, 2018 9| Page

Therefore, when the other issues of the Trade Union of employees of UIC were referred to

the tribunal, it would be evident that the liability of the UIC would be raised. Therefore the

act of the State of Zafhisthan by not referring the immediate issue to the Industrial tribunal

clearly shows a bias towards UIC which is a public sector undertaking. Thus, it is humbly

submitted before this honourable court that the matter of child labour, has been completely

ignored by the state government of Zafhisthan on purpose for favouring the UIC.

ISSUE 3: WHETHER THE CANTEEN WORKERS ARE ENTITLED TO EQUAL WAGES AS THE

OTHER CLASS IV EMPLOYEES OF THE ENTIRE UIC UNIT

It is contended before this Hon’ble Court that the workers of the canteen are entitled to the

same amount in wages as the rest of the class IV employees in the UIC circuit, as they should

be classified as permanent workmen as the rest of the members of the UIC [3.1] and

consequently, all workers should be remunerated equally for equal work [3.2]

[3.1] ALL THE WORKERS OF THE CANTEEN CUM FOOD COURT SHOULD BE MADE PERMANENT

MEMBERS OF THE UIC

A “permanent workman” is a workman who has been engaged on a permanent basis and

includes any person who has satisfactorily completed a probationary period of three months

in the same or another occupation in the industrial establishment, including breaks due to

sickness, accident, leave, lock-out, strike (not being an illegal strike) or involuntary closure of

the establishment.22

It is contended that the workers of the canteen fall under the above mentioned definition of

permanent workmen at a workplace.

22
Industrial Employment (Standing Orders) Central Rules, 1946, Schedule I (2).

MEMORIAL ON BEHALF OF PETITIONER


1st Surana and Surana and School of Law, Raffles University Labour Law Moot Court Competition, 2018 10| Page

The Union raised the point that as all the workmen of the canteen not classified as permanent

members of the UIC, carry out the same functions as the rest of the permanent members of

the corporation, avail the same facilities which is paid for by the UIC, and work under the

singular control and supervision of the Canteen and Management Committee23, they should

all be made permanent members of the UIC.

The constitution of India guarantees the right to equality through Art 14 which includes rights

against arbitrariness and compliance of laws of natural justice.24

Out of the 18 workers employed in the canteen, 4 workers already are permanent members of

the UIC, performing identical jobs in the canteen cum food court. It is well settled in law

that Article 14 is not averse to classification but there must be intelligible differentia to show

that the classification is valid. The doctrine of classification is fundamentally based on a

classification with reason and circumstances dealing with one set of facts and the situation or

circumstances relating to different set of facts.25 The guarantee of equality before law and

equal protection under Article 14 means that there should be no discrimination between one

person and another if as regards the subject-matter of the legislation, their position is the

same. It is well-recognised, however, that the legislature has power of making special laws to

attain particular objects and for that purpose it has the power of selection or classification of

persons and things upon which such laws are to operate. Such classification, however, has to

be based on some real distinction bearing a just and reasonable relation.

23
Moot proposition, page 3
24
M. Nagaraj v Union of India (2006) 8SCC 212: AIR 2007 SC 71
25
Devendra Kumar vs Govt. Of NCt Of Delhi And Ors,, W.P. (C) 5198/2010 and 1985/2011
MEMORIAL ON BEHALF OF PETITIONER
1st Surana and Surana and School of Law, Raffles University Labour Law Moot Court Competition, 2018 11| Page

The two tests laid down by this Court for a valid classification are that it must be founded on

an intelligible differentia which distinguishes those who are grouped together from others and

that differentia must have a rational relation to the objects sought to be achieved by the Act.26

In the present case, 4 of the permanent workmen of the UIC work alongside the rest of the 14

non-permanent workers in the canteen, performing similar, if not completely identical duties

in the Canteen cum food court of UIC, and quite evidently, there is an unreasonable

classification that has no rational nexus with the intent of law and therefore, is arbitrarily

discriminatory towards the non-permanent workers of the canteen.

Therefore, it is humbly submitted that all the non-permanent members of the Canteen cum

food court should be made permanent members of the UIC.

[3.2]THE CANTEEN WORKERS SHOULD BE PAID EQUAL WAGES AS COMPARED TO THE REST

OF THE EMPLOYEES

The Contract Labour (Regulation and Abolition) Act, 197027states that in cases where the

workman employed by the contractor perform the same or similar kind of work as the

workmen directly employed by the principal employer of the establishment, the wage rates,

holidays, hours of work and other conditions of service of the workmen of the contractor

shall be the same as applicable to the workmen directly employed by the principal employer

of the establishment on the same or similar kind of work.

The 18 workmen working regularly in the canteen include 4 permanent workmen of the

UIC28, which goes on to show that the workmen employed by contractor to work in the

canteen, perform similar, if not exactly the same kind of work that the workmen directly

26
Northern India Caterers Private Ltd., &Anr. V State of Punjab, 1967 AIR 1581
27
Rule 25(v)(2)
28
Moot proposition, page 1
MEMORIAL ON BEHALF OF PETITIONER
1st Surana and Surana and School of Law, Raffles University Labour Law Moot Court Competition, 2018 12| Page

employed by the principal employer (UIC) perform in the Canteen cum food court of the

corporation (UIC).

Analyzing the question as to whether temporary employees (daily-wage employees, ad-hoc

appointees, employees appointed on casual basis, contractual employees and the like) are

entitled to the same wages as that of permanent employees, if they discharge similar duties

and responsibilities as that of permanent employees, the Supreme Court in a landmark

judgement29 observed the following -

 Not paying the same wages, despite the work being the same, is violative of Article

1430 of the Constitution of India (“Constitution”) and amounts to exploitation in a

welfare state committed to a socialist pattern of society31.

 The right of equal wages claimed by temporary employees emerges, inter alia, from

Article 3932 of the Constitution33.

 If daily-wage employees can establish that they are performing equal work of equal

quality, and that all the other relevant factors are fulfilled, a direction by a court to pay

such employees equal wages (from the date of filing the writ petition), would be

justified34.

The Supreme Court observed35 that an employee engaged for the same work cannot be paid

less than another who performs the same duties and responsibilities and certainly not in a

welfare state. Such an action besides being demeaning, strikes at the very foundation of

29
State of Punjab and Ors. v. Jagjit Singh and ors, (2017) 1 SCC 148
30
Article 14 of the Constitution guarantees the right to equality to every citizen of India and embodies the
general principles of equality before law and prohibits unreasonable discrimination between persons.
31
DhirendraChamoli v. State of U.P; (1986) 1 SCC 637
32
Article 39 deals with certain principles of policies to be followed by the state. It specifically requires the state
to strive for securing equal pay for equal work of both men and women.
33
D.S. Nakara v. Union of India; (1983) 1 SCC 304; Surinder Singh v. Engineer-in-Chief, CPWD; (1986) 1
SCC 639
34
State of Haryana v. Charanjit Singh; (2006) 9 SCC 321; State of Haryana v. Jasmer Singh; (1996) 11 SCC 77;
State of Haryana v. Tilak Raj, (2003) 6 SCC 123; Orissa University of Agriculture & Technology v. Manoj K.
Mohanty, (2003) 5 SCC 188; Government of W.B. v. Tarun K. Roy, (2004) 1 SCC 347
35
State of Punjab and Ors. v. Jagjit Singh and ors, (2017) 1 SCC 148
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human dignity. Anyone who is compelled to work at a lesser wage does not do so voluntarily

- they do so to provide food and shelter to their family, at the cost of their self-respect and

dignity, at the cost of their self-worth, and at the cost of their integrity. Any act of paying less

wages as compared to others similarly situated, constitutes an act of exploitative enslavement,

emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive

and coercive, as it compels involuntary subjugation.

The SC further observed that India being a signatory to the International Covenant on

Economic, Social and Cultural Rights, 196636, there is no escape from the obligations there

under in view of the different provisions of the Constitution. Thus, the principle of 'equal pay

for equal work' constitutes a clear and unambiguous right and is vested in every employee,

whether engaged on a permanent or temporary basis.37

Article 14 of the Constitution enjoins the State not to deny any person equality before the law

or the equal protection to law and Article 16 declares that there shall be equality of

opportunity for all citizens in matters relating to employment or appointment to any office

under the State. It is true that the principle of "equal pay for equal work" is not expressly

declared by our Constitution to be a fundamental right, but it is certainly a constitutional

goal.38

The preamble to the Constitution declares the solemn resolution of the people of India to

constitute India into a Sovereign Socialist Democratic Republic. Again the word 'Socialist'

must mean something. Even if it does not mean 'To each according to his need', it must

atleast mean 'equal pay for equal work'.

36
Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of
16 December 1966, entry into force 3 January 1976, in accordance with article 27
37
State of Punjab and Ors. v. Jagjit Singh and ors, (2017) 1 SCC 148
38
NarmadShankerAwasthi and Another v The Central Administrative Tribunal Lko.BenchLko.AndOrs., (2018)
1 ADJ 758
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The principle of 'equalpay for equal work' is expressly recognized by all socialist systems of

law, some of the examples beingthe Hungarian LabourCode39, the Czechoslovak Code40, the

Bulgarian Code41, the Code of the German Democratic Republic42, the Rumanian Code43.

Indeed this principle has been incorporated in several western labour codes too. In

accordance with Section 3 of the Grundgesetz of the German Federal Republic, and clause 7,

Section 123 of the Mexican Constitution, the principle is given universal significance.44 The

preamble of the Constitution of the InternationalLabour Organisation45recognises

the principle of 'equal remuneration for work of equal value' as constituting one of the means

of achieving the improvement of conditions "involving such injustice, hardship and privation

to large numbers of people as to produce unrest so great that the peace and harmony of the

world are imperilled".46

Construing Articles 1447 and article 1648 in the light of the Preamble49 and article 3950, the

view that is shared is that the principle of 'Equal pay for Equal work' is deducible from those

articles and may be properly applied to cases of unequal scales of pay based on no

classification or irrational classification though these drawing the different scales of pay do

identical work under the same employer.51

Therefore, it is humbly contended that the workers employed in the canteen should get equal

wages for doing the same work as compared to what the other class IV of the UIC unit get.

39
Section 59
40
Section 111, para 2
41
Section 67
42
Section 40
43
Section 33, para 2
44
International Labour Law by IstvanSzaszy p. 265
45
Specialized agency of the United Nations
46
Randhir Singh v Union of India and ors, 1982 SCR (3) 298
47
The Constitution of India
48
Ibid.
49
Ibid.
50
Ibid.
51
Randhir Singh v Union of India and ors, 1982 SCR (3) 298
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1st Surana and Surana and School of Law, Raffles University Labour Law Moot Court Competition, 2018 15| Page

ISSUE 4- WHETHER THE BURDEN OF PAYING THE GST SHOULD BE BORNE BY UIC OR NOT

It is contended before this Hon’ble Court that the UIC forms a part of the State under Article

12 of Constitution of India [4.1] and consequently, the contract between Bhola Prasad and

UIC stands frustrated and the burden of payment of the remainder amount of GST be shifted

to UIC [4.2].

[4.1] THE UIC FORMS A PART OF THE STATE UNDER ARTICLE 12 OF CONSTITUTION OF INDIA

It is specifically asserted that the Canteen is the instrumentality of the State falling within the

ambit of Article 12 of the Constitution and 'other authority' used in Article 226 of the

Constitution.

The Counsel for petitioner contends that the respondent-Canteen is a 'State' coming within the

ambit of Article 12 of the Constitution, on primarily two grounds:

1. The test laid down for checking whether a body belongs to the ‘State’ or an

instrumentality of State in Ramana Dayaram Shetty v International Airport Authority

of India and Others52.

2. The grounds laid down in the landmark SC case of Som Prakash v Union of India53.

Before discussing the tests, emphasis must be laid down on the term ‘other authorities’ under

Article 1254.

‘Other Authorities’ refers to authorities other than those of local self- government, who have

power to make rules, regulations, etc. having the force of law. “Instrumentality” and

“agency” are the two terms, which to some extent overlap in their meaning. The basic and

essential distinction between an “instrumentality or agency” of the State and “other

52
R.D. Shetty v International Airport Authority, 1979 AIR 1628
53
Som Prakash v Union of India, AIR 1981 SC 212
54
Article 12, Constitution of India
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authorities” has to be borne in mind. An ‘Authority’ must be authority sWui juris within

meaning of expression “other authorities” under Article 1255. A juridical entity, though an

authority may also ratify the list of being an instrumentality or agency of the state in which

event such authority may be held to be an instrumentality or agency of State, but not vice

versa.56

The earliest traces in the legal jurisprudence of what amounts to a State and an

instrumentality, can be found in a case adjudged by Supreme Court in 196957 In the said case,

for an authority to be considered a “local authority”, an authority must fulfill the following

grounds-

1) Separate legal existence.2) Function in a defined area.3) Has power to raise funds. 4)

Enjoys autonomy.5) Entrusted by a statute with functions which are usually entrusted to

municipalities

However, the final reference of dealings are looked upon to in the landmark decision by Apex

Court in R.D. Shetty v International Airport Authority. These grounds hold immense value as

till date, this case along with Ajay Hasia v Khalid Mujib58 is a celebrated precedent when it

comes to checking instrumentality of State.

The five grounds that need to be deliberated are: 1) Entire share capital is owned or managed

by State.2) Enjoys monopoly status.3) Department of Government is transferred to

Corporation.4) Functional character governmental in essence.5) Deep and pervasive State

control.6) Object of Authority. The Counsel for Petitioners will prove that the body in

question (UIC) is an ‘other authority’ and thus encompasses under the State under Article 12.

55
R.D. Shetty v International Airport Authority, 1979 AIR 1628
56
Shantilal v State of Gujarat, AIR 1981 SC 212
57
Ibid Note 5.
58
Ajay Hasia v Khalid Mujib, 1981 AIR 487
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In the present matter, the body in question is a Public Sector Undertaking of the Government

of India which is under the administrative control of Ministry of Corporate Affairs 59. Thus, it

can be clearly observed that the body has majority of the share capital held by the State.

Further, the State enjoys monopoly status as to implementation of new policies, introduction

of new changes in administration and much more. Thus, it can be inferred that the State owns

monopoly status in UIC. Further, when one goes down to observe the nature of the

Corporation due emphasis must be paid on the term ‘industrial’ in the name ‘Union Industrial

Corporation’. Prima facie, it can be inferred that the functions are industrial in nature.

Further, as it has been specified, once again, the Ministry of Corporate Affairs enjoys deep

and pervasive control. Thus, it can be seen that all the six parameters set down in the case are

duly applicable in the current matter.

Further, there were some grounds laid down in the SC case of Som Prakash v Union of India.

The Court while deciding the matter opined that the preponderant considerations for

pronouncing an entity as State agency or instrumentality are: (1) financial resources of the

state being the Chief finding source; (2) functional character being governmental in essence;

(3) plenary control residing in government; (4) prior history of the same activity having been

carried on by government and made over to the new body; (5) some element of authority or

command. Whether the legal person is a corporation created by a statute, as distinguished

from under a statute, is not an important criterion.

In the present matter, the financial resources are invested by the State, the governance and

administration is governmental in nature as the control stays with Ministry of Corporate

Affairs. The functions also essentially suggest that governmental nature. There has been prior

government carrying on acts and then made over to the new body. This happened in the cases

59
Moot Proposition, Pg 1, Para 1
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of Life Insurance Company and BCCI matters where these corporations were deliberated

upon the question of instrumentality.

Thus, it is humbly submitted that Unnati Industrial Corporation is an ‘other authority’ under

the ambit of State as specified by Article 12 and therefore plenable to the writ jurisdiction.

[4.2]- CONTRACT BETWEEN BHOLA PRASAD AND UIC STANDS FRUSTRATED AND THE

BURDEN OF PAYMENT OF THE REMAINDER AMOUNT OF GST BE SHIFTED TO UIC .

The Counsel for Petitioners humbly contends that there existed a valid contract between UIC

(represented by UIC Canteen and Management Committee)60. In order to prove it, first

essentials of a valid contract need to be discussed. Section 10 of the Indian Contract Act,

187261.enshrines on essentials of the valid contract. They are 1) offer and acceptance 2)

Intention to get into a legal relationship 3) Lawful consideration 4) Capacity and 5) Free

consent.

In the current case, there was an offer and acceptance which can be assumed by the explicit

mention of the phrases ‘written understanding’. The parties i.e. UIC committee and Mr Bhola

had an intention to get into a legal relationship as Bhola wished to provide services to the

Corporation. The consideration that existed for Bhola was the money that he would make by

providing subsidized food to the workers at the Corporation. Both the parties are competent

to contract and there is no sign to prove otherwise that there was no free consent.

Thus, there existed a valid contract where Mr Bhola would provide food in subsidized rates to

the canteen workers for the money that he was paid by the Corporation.

[4.3]THE CONTRACT BETWEEN UIC AND MR BHOLA STANDS FRUSTRATED.

60
Moot Proposition, Pg 1, Para 1, Line 9
61
Indian Contract Act, 1872
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1st Surana and Surana and School of Law, Raffles University Labour Law Moot Court Competition, 2018 19| Page

It is humbly contended that the contract between Mr Bhola and UIC stands frustrated.

Indian Contracts Act, 1872 governs all the contracts in India. The Doctrine of Frustration is

nowhere explicitly mentioned in the statute. However, the doctrine is envisaged in Section

56 of the Act, which states that an agreement to do an act impossible in itself is void. Further,

a contract to do an act which, becomes impossible, or, by reason of some event which the

promisor could not prevent, unlawful, becomes void when the act becomes impossible or

unlawful. Hence, frustration is the happening of an act outside the contract and such act

makes the completion of a contract impossible. After the parties have concluded a contract,

events beyond their control may occur which frustrate the purpose of their agreement, or

render it very difficult or impossible, or as even illegal, to perform.62

There are three factors that could frustrate a contract: 1) impossibility of performance 2)

change of circumstances 3) loss of object. The relevant factor is the second. Courts declare

frustration of a contract on the ground of subsequent impossibility when it finds that the

whole purpose or basis of a contract was frustrated by the intrusion or occurrence of

an unexpected event or change of circumstances which was beyond what was contemplated

by the parties at the time when they entered into the agreement. The changed circumstances

make the performance of the contract impossible and the parties are absolved from the further

performance of it as they did not promise to perform an impossibility.63

In the present matter, the contractor i.e. Mr Bhola and UIC got into a contract for a

consideration. The consideration here is the amount of profit that Mr Bhola will make by

providing subsidized food. However, after the introduction of GST, the meagre profit

margins that Mr Bhola made vanished. Now, since the consideration of the contract, which

62
Pollock &MullaOn Indian Contract and Specific Relief Acts; with a Commentary, Critical and Explanatory.
Bombay :N. M. Tripathi, 1972.
63
SatyabrataGhose versus MugneeramBangur& Co & Anr (AIR 1954 SC 44)
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1st Surana and Surana and School of Law, Raffles University Labour Law Moot Court Competition, 2018 20| Page

was this meagre profit, is no longer there due to introduction of GST. Therefore, the

conditions that were prevalent before the introduction of GST changed completely, thus,

frustrating the purpose of the contract and the contract in itself. Since the conditions changed,

it is wise to say that the contract no longer exists.

Thus, rescission of the contract or establishing ‘status quo ante’ i.e. restoring the position of

parties in such a manner as if the contract had not taken place is the next step that the Court

usually looks into. If the position of Mr Bhola Prasad is restored as if the contract had not

taken place, he would not be liable to pay the GST. Thus, the onus of payment of remainder

amount of GST should be on the UIC as it is an instrumentality of the State and thus holds

responsibility. Further Mr Bhola has terminated the jobs of the workers because he claims to

have no money to pay. Thus, it is the responsibility of the State to restore things into

amicable fashion and do the needy.

The Counsel for Petitioners humbly submits that UIC is an ‘other authority’ under the

definition of State under Article 12. Further, it is submitted that since the contract between

Mr Bhola and UIC stands frustrated, the onus of payment for the remainder amount of GST

be shifted to UIC from Mr Bhola.

MEMORIAL ON BEHALF OF PETITIONER


1st Surana and Surana and School of Law, Raffles University Labour Law Moot Court Competition, 2018 21| Page

PRAYER

Wherefore, in the light of the facts explained, issues raised, arguments advanced, reasons
given and authorities cited this Hon’ble Court may be pleased to:

1. HOLD the instant petition maintainable

2. HOLD that the State Government of Zafhisthan has ignored the matter of Child Labour on
purpose.

3. DIRECT the terminated workers of the canteen to be reinstated.

4. DIRECT that the canteen workers be given equal wages as the class IV workers of UIC.

5. DIRECT the onus of payment of GST to be shifted to UIC.

and/ or
Grant any relief that this Hon’ble court may be pleased to grant in the interest of justice,
equity and good conscience.

All of which is most respectfully submitted.

~sd~

Counsel for Petitioners

MEMORIAL ON BEHALF OF PETITIONER