BEFORE THE HON’BLE

DELHI HIGH COURT

Rajendra singh …….. ..................................................................................................PETITIONER

v.
State Bank of India ….................................................................................................. RESPONDENTS

UPON SUBMISSION TO THE HON’BLE DELHI HIGH COURT

MEMORANDUM ON BEHALF OF THE RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENTS

 TABLE OF CONTENTS

Contents

MEMORANDUM ON BEHALF OF THE RESPONDENT .......................................................... i

TABLE OF CONTENTS ............................................................................................................................. ii

LIST OF ABBREVIATIONS ..................................................................................................................... iii

INDEX OF AUTHORITIES ....................................................................................................................... iv

CASES……………… ...................................................................................................................................4

STATEMENT OF FACTS ...........................................................................................................................5

STATEMENT OF ISSUES ..........................................................................................................................6

SUMMARY OF ARGUMENTS ...................................................................................................................7

ARGUMENTS ADVANCED .......................................................................................................................8

PRAYER……………..................................................................................................................................13

COUNSELS FOR THE RESPONDENTS ................................................................................................13

1
 LIST OF ABBREVIATIONS

¶ Para

¶¶ Paras

AIR All India Reporter

All Allahabad

Art. Article

Cal Calcutta

Convention Of International Trade In Endangered Species

CITES
Of Wild Fauna And Flora,1975

CMS Convention on Migratory Species,1983

Del Delhi

Ed. Edition

ICCPR International Convention on Civil and Political Rights,1966

International Covenant on Economic, Social and Cultural

ICESCR
Rights,1966

ILO International Labour Organisation

IUCN International Union for Conservation of Nature

Mad Madras

MIL Maraco International Ltd.

Ori Orissa

p. Page No.

PAT Patna

PIL Public Interest Litigation

2
 Raj Rajasthan

SC Supreme Court

SCC Supreme Court Reports

SCJ Supreme Court Journal

Sec. Section

u/a Under Article

UDHR United Nations Declaration on human rights.

United Nations Framework Convention on Climate Change,

UNFCCC
1992

3
 INDEX OF AUTHORITIES

CASES

• Goa Sampling Employees’ Association v. General Superintendence Co. of India Pvt.

Ltd. and Others’, (1985) 1 SCC 206

• Municipal Corporation of Delhi v. Mahavir’ (supra).

• Mohd. Arif v. Cardio Products Corporation and Anr’, in W.P. (C) 220/2013

BOOKS

1. HL KUMAR , 8th Edition, 2008, LexisNexis, Buttersworth Wadhwa Publication.

2. S.C. Shrivastava ,Labour Law, 6th Edition 2009,

4
LEGAL DATABASES

1. Manupatra
2. SCC Online
3. Westlaw
4. Hein Online
LEXICONS

1. Aiyar P Ramanathan, Law Lexicon, 2005

2. Garner Bryana, Black’s Law Dictionary,7th Edition,1999

MEMORIAL ON BEHALF OF THE RESPONDENTS

 STATEMENT OF FACTS

o The appellant was the employee of the State Bank of India. The petition is that
the petitioner was suspended on 08.12.2006 on account of alleged
misappropriation of funds from customers account.

o Memo of charges were issued on 12.11.2007 and 04.06.2008 for unauthorized

debiting of customers account and using the money.

o A decision to hold enquiry against the petitioner was taken by the respondent
bank on 01.09.2008. Thereafter, findings were given by the enquiry officer on
the charges against the petitioner.

o On 24.08.2010, penalty of removal from service with superannuation benefits

was imposed upon the petitioner and the period of suspension was directed to
be treated as period not spent on duty.

o On 23.09.2010, the petitioner filed an appeal before the Appellate Authority to

upheld the order of the Disciplinary Authority.

o Thereafter, on 27.07.2011 the petitioner filed his claim raising Industrial

Dispute no. 52/2011 before the learned Industrial Tribunal, in terms of Section
10 (4A).

o It was lastly contended by the counsel for the petitioner that dismissal of the
workman’s claim defeats the very objective of Section 10 (4A) of the ID Act in as
much as it defers the adjudication of claim of the workman on merits and
prolongs the process of grievance redressal of the workman.

MEMORIAL ON BEHALF OF THE RESPONDENTS

 STATEMENT OF ISSUES

ISSUE I:

1. Whether There Is Any Repugnancy Between The Amendment Made To The ID Act
Under Section 2A Pursuant To Central Amendment Act 24 Of 2010.

ISSUE II:

2. Whether The Provision Of Section 10 (4A) Stood Eclipsed By Section 2A Of The ID

Act In The Light Of The Article 254(1) Of The Constitution Of India?

MEMORIAL ON BEHALF OF THE RESPONDENTS

 SUMMARY OF ARGUMENTS

Issue I

3. Whether There Is Any Repugnancy Between The Amendment Made To The ID Act
Under Section 2A Pursuant To Central Amendment Act 24 Of 2010.

It is humbly submitted that, since the amendment made to Industrial dispute act under section
2A is applicable instead section of 10(4A) and it is settled law that central law prevails over
the state law. Hence, section 2A will apply.

Issue II

2 .Whether the provision of Section 10 (4A) stood eclipsed by Section 2A of the ID Act
in the light of the Article 254(1) of the Constitution of India?

It is humbly submitted that, the provision of section 10 (4A) stood eclipsed by section 2A of
ID act in light of section 254(1) of the constitution of India. The repugnancy between Section
2A and 10(4A) of the ID Act satisfies the said three conditions laid down in ‘Karunanidhi v.
Union of India’ (supra) and therefore applying the principles enumerated under Article 254 of
the Constitution in the light of ‘Govt. of A.P. v. J.B. Educational Society’ (supra), it is
beyond any reasonable uncertainty that Section 2A of the ID Act (introduced by Central
Amendment Act 24 of 2010) shall prevail over Section 10(4A) of the ID Act (introduced by
State Amendment Act).

MEMORIAL ON BEHALF OF THE RESPONDENTS

 ARGUMENTS ADVANCED

1. Whether There Is Any Repugnancy Between The Amendment Made To The ID Act
Under Section 2A Pursuant To Central Amendment Act 24 Of 2010.

It would be appropriate to reproduce and discuss the amended Section 10(4A) and Section
2A of the ID Act. The said amendments read as under:
“Section 10 (4A) added vide Delhi Act 9 of 2003 (w.e.f. 22.08.2003)

“10(4A): Notwithstanding anything contained in Section 9C and this section, in the case of a
dispute falling within the scope of Section 2A, the individual workman

concerned may, within twelve months from the date of communication to him of the order of
discharge, dismissal, retrenchment or termination or the date of commencement of the
Industrial Disputes (Delhi Amendment) Act, 2003, whichever, is later, apply in the prescribed
manner, to the Labour Court or the Tribunal, as the case may be, for adjudication of the dispute
and the Labour Court or Tribunal, as the case may be, shall dispose of such application in the
same manner as a dispute referred under sub-section1.”

“Section 2A of the principal Act shall be numbered as sub-section (1) thereof and after sub-
section (l) as so numbered, the following sub-sections shall be inserted, namely:- (2)
Notwithstanding anything contained in section 10, any such workman as is specified in sub-
section (1) may, make an application direct to the Labour Court or Tribunal for adjudication of
the dispute referred to therein after the expiry of forty-five days from the date he has made the
application to the Conciliation Officer of the appropriate Government for conciliation of the
dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and
jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the
appropriate Government in accordance with the provisions of this Act and all the provisions of
this Act shall apply in relation to such adjudication as they apply in relation to an industrial
dispute referred to it by the appropriate Government. (3) The application referred to in sub-
section (2) shall be made to the Labour Court or Tribunal before the expiry of three years from
the date of discharge, dismissal, retrenchment or otherwise termination of service as specified

1
10(4A) Of Industrial dispute act,1947

MEMORIAL ON BEHALF OF THE RESPONDENTS

in sub-section2.”

The aforementioned provisions infer that Section 10(4A) of the ID Act gives the workman
discretion to file his claim directly in the concerned Labour Court, within a period of twelve
months from the date of communication of his discharge, dismissal, retrenchment or
termination to him, whereas, Section 2A ID Act requires a workman to move an application
before the concerned Conciliation Officer of an appropriate government and only after the
expiry of 45 days from the date of filing of this application before the Conciliation Officer, the
workman can move his claim before the concerned Labour Court. ‘Goa Sampling Employees’
Association v. General Superintendence Co. of India Pvt. Ltd. and Others©3 These two
provisions undoubtedly are repugnant to one another and provide for a different mechanism to
the workman for redressal of his grievance under the ID Act. It is a settled law that in case of a
conflict between the two provisions of an Act, one enacted by the State and other by the Centre,

2
Section 2A of industrial dispute act,1947
3(1985) 1 SCC 206

MEMORIAL ON BEHALF OF THE RESPONDENTS

 2. Whether the provision of Section 10 (4A) stood eclipsed by Section 2A of the ID Act
in the light of the Article 254(1) of the Constitution of India?

The Court is duty bound to see whether the provisions thereof can be read harmoniously and
only in cases where the same is not possible the question of prevalence of one over another
would arise and in that context Article 254 of the Constitution is referred. It appears that a
harmonious construction of the aforementioned provisions is not possible. Therefore in order to
resolve the repugnancy of the said two provisions it becomes important to refer to the
provisions of Article 254 of Constitution of India which reads as follows:

Inconsistency between laws made by Parliament and laws made by the Legislatures of States.-

(1)If any provision of a law made by the Legislature of a State is repugnant to any provision of
a law made by Parliament, which Parliament is competent to enact, or to any provision of an
existing law with respect to one of the matters enumerated in the Concurrent List, then, subject
to the provisions of clause (2), the law made by Parliament, whether passed before or after the
law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail
and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void4.

Where a law made by the Legislature of a State [***] with respect to one of the matters
enumerated in the Concurrent List contains any provision repugnant to the provisions of an
earlier law made by Parliament or an existing law with respect to that matter, then, the law so
made by the Legislature of such State shall, if it has been reserved for the consideration of the
President and has received his assent, prevail in that State: Provided that nothing in this clause
shall prevent Parliament from enacting at any time any law with respect to the same matter
including a law adding to, amending, varying or repealing the law so made by the Legislature
of the State.” In case an issue of repugnancy arises between two provisions, what needs to be
ascertained is whether the provision of the State enactment though otherwise constitutionally
valid, has lost its validity because the Parliament has made an amendment with a conflicting
provision on allegedly the same matter. In order to decide this question it must be shown that
the two provisions are inconsistent and they cannot stand together or operate in the same field.

4
Section 254(1) of constitution of India

MEMORIAL ON BEHALF OF THE RESPONDENTS

The Apex Court in ‘Karunanidhi v. Union of India5’ has laid down the following conditions
which need to be fulfilled before any repugnancy can be determined between a Central and
State Act and observed as under: It is well settled that the presumption is always in favour of
the constitutionality of a statute and the onus lies on the person assailing the Act to prove that it
is unconstitutional. Prima facie, there does not appear to us to be any inconsistency between the
State Act and the Central Acts. Before any repugnancy can arise, the following conditions must
be satisfied:

1. That there is a clear and direct inconsistency between the Central Act and the State Act.

2. That such an inconsistency is absolutely irreconcilable.

3. That the inconsistency between the provisions of the two Acts is of such nature as to bring
the two Acts into direct collision with each other and a situation is reached where it is
impossible to obey the one without disobeying the other.”

16. If a repugnancy arises on the basis of the aforementioned conditions being satisfied, it is
settled that the provisions of the Central Act shall prevail over the State Act. The Apex Court in
‘Govt. of A.P. And Another v. J.B. Educational Society And Another6’ in this context held:
There is no doubt that both Parliament and the State legislature are supreme in their respective
assigned fields. It is the duty of the Court to interpret the legislations made by the Parliament
and the State legislature in such a manner as to avoid any conflict. However, if the conflict is
unavoidable, and the two enactments are irreconcilable, then by the force of the non-obstante
clause in Clause (1) of Article 246, the Parliamentary legislation would prevail notwithstanding
the exclusive power of the State legislature to make a law with respect to a matter enumerated
in the State List.
Thus, the question of repugnancy between the Parliamentary legislation and the State
legislation can arise in two ways. First, where the legislations, though enacted with respect to
matters in their allotted sphere, overlap and conflict. Second, where the two legislations are
with respect to matters in Concurrent List and there is a conflict. In both the situations,
Parliamentary legislation will predominate, in the first, by virtue of the non-obstante clause in

5
1979 AIR 898
6
(2005) 3 SCC 212

MEMORIAL ON BEHALF OF THE RESPONDENTS

Article 246(1), in the second, by reason of Article 245(1). Clause (2) of Article 245 deals with a

situation where the State legislation having been reserved and having obtained President's
ascent prevails in that State; this again is subject to the proviso that the Parliament can again
bring a legislation to override even such State legislation.” Therefore, it is beyond any
reasonable doubt that the Central Amendment Act inserting Section 2A has an overriding effect
over Section 10(4A) not only because the former is a Central Amendment that has been given
effect to from the year 15.09.20107. but also because of usage of the words ‘Notwithstanding
anything contained in Section 10’ in the said Section.

7
7 years from the date of Delhi State Amendment of (22.08.2003)

MEMORIAL ON BEHALF OF THE RESPONDENTS

 PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble
Court be pleased to:

1. Dismiss the writ petition.

2. In the alternative declare and adjudge:

a. That the There Is no Repugnancy Between The Amendment Made To The

ID Act Under Section 2A Pursuant To Central Amendment Act 24 Of 2010.

b. That the the provision of Section 10 (4A) stood eclipsed by Section 2A of the ID
Act in the light of the Article 254(1) of the Constitution of India

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.

And for this, the Respondents as in duty bound, shall humbly pray.

COUNSELS FOR THE RESPONDENTS

MEMORIAL ON BEHALF OF THE RESPONDENTS