IN THE INDUSTRIAL TRIBUNAL

OF BIKANER

CIVIL SUIT NO. XYZ/2018

IN THE MATTER OF

Zuber Singh And Kaviprakash Mehra………………………………….…… PLAINTIFF

V.

Winfred Automobiles Ltd. ………………………...…………….................DEFENDANT

Suit filed under section 10(d) read with read with schedule 3, of the Industrial Disputes

Act, 1947

MEMORIAL on behalf of the DEFENDANT

 TABLE OF CONTENTS

INDEX OF AUTHORITIES...................................................................................................... 2

STATEMENT OF FACTS ........................................................................................................ 3

STATEMENT OF JURISDICTION.......................................................................................... 4

ISSUES FOR CONSIDERATION ............................................................................................ 5

WRITTEN SUBMISSIONS ...................................................................................................... 6

I. THE INDUSTRIAL TRIBUNAL OF BIKANER HAS THE REQUISITE

JURISDICTION TO ADJUDICATE THE PRESENT MATTER. ........................................... 7

II. THE SETTLEMENT ENTERED INTO BY THE MANAGEMENT DOES NOT

ATTRACT SECTION 9(a) OF THE INDUSTRIAL DISPUTES ACT, 1947. ........................ 8

PRAYER FOR RELIEF .......................................................................................................... 10

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 INDEX OF AUTHORITIES

Cases

Dhulabhai v. State of M.P., AIR 1969 SC 78 ............................................................................ 8

Premier Automobiles Ltd. v Kamlekar Shantaram Wadke of Bombay & Ors., AIR 1975 SC

2238........................................................................................................................................ 7

Rajasthan SRTC v. Krishna Kant, (1995) 5 SCC 75 ................................................................. 7

Tamil Nadu E.W.F. v. Madras Electricity Board, AIR 1965 Mad 111 ..................................... 8

Statutes

Section 2(k), Industrial Disputes Act, 1947 ............................................................................... 7

Section 9(a), Industrial Disputes Act, 1947 ............................................................................... 8

Section 9, Code of Civil Procedure, 1908.................................................................................. 7

Treatises and Conventions

Sarkar, Code of Civil Procedure, Wadhwa & Co. Nagpur, 11TH Ed., Reprint 2007 ................. 7

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 STATEMENT OF FACTS

In the motor production department of a company called “Winfred Automobiles Limited” there

were three groups of workers.

There was one trade union recognised by the company earlier but was derecognised later.

Another trade union was recognised in its place later and there was another group of workers

who were part of neither.

There was a settlement agreement for incentives between the company and the trade union

recognised earlier but because of the increase in the number of workers a new settlement was

reached between the new trade union and the company. This led to protests form the

derecognised union.

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 STATEMENT OF JURISDICTION

The Defendant humbly submits to the jurisdiction of the Industrial Tribunal of Bikaner to hear

and adjudicate the matter under Section 10(D) and Schedule 3 of the Industrial Disputes Act,

1947.

All of which is urged in detail in the written submission and is most humbly submitted.

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 ISSUES FOR CONSIDERATION

A. WHETHER THE INDUSTRIAL TRIBUNAL OF BIKANER HAS REQUISITE

JURISDICTION OR NOT?

B. WHETHER THE SETTLEMENT ENTERED INTO BY THE MANAGEMENT

ATTRACT PROVISIONS ON SECTION 9A OF THE ACT?

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 SUMMARY OF ARGUMENTS

I. WHETHER THE INDUSTRIAL TRIBUNAL OF BIKANER HAS THE

REQUISITE JURISDICTION TO ADJUDICATE THE PRESENT MATTER?

As the suit conforms with the definition of industrial disputes given under S.2(k) of the

Industrial Disputes Act, 1947 and is of the nature of a dispute between the employer and the

employees, therefore the remedy has to be sought in an Industrial Tribunal for the enforcement

of a right arising from the statute.

As the plaintiff is taking resort to a remedy given in a specific suit i.e. the Industrial Disputes

Act, 1947, therefore the matter is impliedly barred from being admitted in any other civil court

as per S.9 of Code of Civil Procedure.

II. WHETHER THE SETTLEMENT ENTERED INTO BY THE MANAGEMENT

DOES NOT ATTRACT SECTION 9(a) OF THE INDUSTRIAL DISPUTES

ACT, 1947?

Section 9(a) of the Act prevents any unilateral action on part of the employer or the

management to the prejudice of the workers. In any case whatsoever, it does not prevent change

which is based on the consent of the workmen.

The said settlement introducing changes in the old incentive scheme was entered into with the

recognized union with their consent and not for their prejudice.

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 ARGUMENTS ADVANCED

I. THE INDUSTRIAL TRIBUNAL OF BIKANER HAS THE REQUISITE

JURISDICTION TO ADJUDICATE THE PRESENT MATTER.

According to Section 9 of the Code of Civil Procedure1, civil courts shall have the requisite

jurisdiction to adjudicate all suits of civil nature except suits whose cognizance is either

expressly or impliedly barred. A statute can therefore expressly or by necessary implication,

bar the jurisdiction of civil courts in respect of a particular matter2.

The present matter is that in the nature of an industrial dispute according to section 2(k) of the

Industrial Disputes Act, 1947 which clearly states that “an industrial dispute means any dispute

or 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”.3

It was also held in the Supreme Court in Premier Automobiles Ltd. v Kamlekar Shantaram

Wadke of Bombay & Ors.4 that if an industrial dispute relates to the enforcement of a right or

an obligation created under the Act, then the only remedy available to a suitor is to get an

adjudication under the Act.

1
Section 9, Code of Civil Procedure, 1908.
2
Sarkar, Code of Civil Procedure, Wadhwa & Co. Nagpur, 11TH Ed., Reprint 2007.
3
Section 2(k), Industrial Disputes Act, 1947.
4
AIR 1975 SC 2238

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In this case the dispute relates to the right and obligation created under the act and not on the

basis of general law of contract. Where a dispute involves recognition, observance or

enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only

remedy is to approach the forum created by the act.5 When the jurisdiciton is impliedly barred,

all questions about the said right and liability in the dispute shall be determined by the tribunal

so constituted under the act.6

Thus the industrial dispute tribunal of Bikaner is the appropriate forum to adjudicate the present

matter.

II. THE SETTLEMENT ENTERED INTO BY THE MANAGEMENT DOES NOT

ATTRACT SECTION 9(a) OF THE INDUSTRIAL DISPUTES ACT, 1947.

Section 9(a)7 of the Industrial Disputes Act, 1947 requires a notice for any change in the

conditions of service to the workmen by such change. However in the present case, the

settlement between the management and the recognized union does not attract the said section

as it is in accordance its theme.

Section 9(a) of the Act prevents any unilateral action on part of the employer or the

management to the prejudice of the workers. In any case whatsoever, it does not prevent change

which is based on the consent of the workmen.8

The said settlement introducing changes in the old incentive scheme was entered into with the

recognized union with their consent and not for their prejudice. The only objective for

5
Rajasthan SRTC v. Krishna Kant, (1995) 5 SCC 75.
6
Dhulabhai v. State of M.P., AIR 1969 SC 78.
7
Section 9(a), Industrial Disputes Act, 1947.
8
Tamil Nadu E.W.F. v. Madras Electricity Board, AIR 1965 Mad 111.

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introducing the new incentive scheme was that the increase in number of employees required

changes in the expected targets to get the incentives.

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 PRAYER FOR RELIEF

Wherefore, in light of the facts stated, issues raised, arguments advanced and authorities cited,

it is most humbly and respectfully prayed before this Learned Industrial Tribunal of Bikaner

that it may be pleased to

(i) Dismiss the plaint by the plaintiff.

And pass any other order in favour of the Plaintiff that it may deem fit in the ends of justice,

equity and good conscience.

Place: Bikaner (Counsel for the DEFENDANT)

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