WHETHER THE INDUSTRIAL DISPUTE IS MAINTAINABLE BEFORE THE HIGH COURT OF

DELHI, INCLUDING WHETHER THE INDUSTRIAL DISPUTE CAN BE CLUBBED WITH

SMART’S PUBLIC INTEREST LITIGATION?

It is most humbly submitted that the Industrial Dispute brought by the Drivers’ Union is not
maintainable because there is no violation of Fundamental Rights as well as the petitions
cannot be clubbed together.

That the Industrial Dispute cannot be brought to the High Court as it lacks
Jurisdiction.

It is humbly submitted that when a right or liability is created by statute, which itself
prescribes the remedy or procedure for enforcing right or liability, resort must be
had to that particular statutory remedy and not the discretionary remedy under
Article 226 of the Constitution.1
It is submitted that a writ under Article 226 cannot be invoked for a private law
dispute and recording a compromise as a contradistinguished from a dispute
involving a public law character.2A writ cannot be filed merely to enforce a
purely contractual obligation.3 For this purpose, the proper legal remedy is a suit
for damages or specific performance.4
Therefore it is submitted that in light of the arguments advanced above the Industrial
Dispute is not maintainable.

That both the matters cannot be clubbed together.

It is reverentially submitted that both the matters brought before the court cannot be
clubbed together because the matters do not have a common question of law and
therefore cannot be clubbed together

1
Seth Chand Ratan v. Pandit Durga Prasad, AIR 2003 SC 2736.
2
Dwarka Prasad Agarwal v. B.D. Agarwal, AIR 2003 SC 2686.
3
State of M.P. v. M.P. Vyavsay & Co., AIR 1997 SC 993.
4
Ibid.
 It is most humbly submitted before this Hon’ble High Court that the two writ petitions
should not be clubbed together because the subject matter of the writs is totally
different.5
It is humbly submitted before this Hon’ble Court that there is no common question of
law in the two petitions. As according to Black’s Law Dictionary, the term
Question of Law means an issue about what the law is on a particular point or an
issue in which parties argue about, and the court must decide, what the true rule
of law is.6
Therefore it most respectfully submitted that in the light of the principles propounded
by the Courts over the years the matters are not clubbed.

That existence of alternate remedy is a bar to entertain the Writ Petition

It has been held in a catena of cases 7 that the High Courts shall not exercise their
jurisdiction under Article 226/227 of the Constitution if an alternate remedy is
available to the parties.
It is humbly submitted that the Industrial Disputes Act, 1947 is a Statute which
provides for the contravention as well as the adjudication of the grievances and
disputes arising out of it. The Hon’ble Supreme Court as well as High Courts
across the country have stressed upon the importance of the Labour Tribunals
and accepted it as a suitable forum for redressal.
It is further submitted that in Mahadeo Dhandu Jadhav v. Labour Appellate
Tribunnal8 Lordships observed the following-
“we are fully conscious of the fact that our legislature has put labour
legislation on the statue book primarily for the purpose of redressing the
balance between employers and employees
In this context the National Commission of Labour observed:
the adjudicating machinery has exercised considerable influence on
several aspects of conditions of work and labour management relations.
Adjudication has been on of the instruments for the improvement of wages
and working conditions and for securing allowances for maintaining real

5
C. K. TAKWANI, CIVIL PROCEDURE CODE 520 (5th ed., Eastern Book Company 2007).
6
BLACK’S LAW DICTIONARY, 2004 at 1281.
7
Mohd Yunusv. MohdMustaqim AIR 1984 SC 38; CIT v. ChhabilDass Agarwal, (2014) 1 SCC 603; State of
Himachal Pradesh v. Gujarat Ambuja Cement Ltd. AIR 2005 SC 3856.
8
Mahadeo Dhandu Jadhav v. Labour Appellate Tribunnal, [1956] 1 LLJ 252, 254 (Bom).
 wages, bonus and introducing uniformity in benefits and amenities. It has
also helped to avert many work stoppages by providing an acceptable
alternative to direct action and to protect and promote the interest of the
weaker sections of the working class, who were not well organized or
were unable to bargain on an equal footing with the employer.9
It was held by the Apex Court in Hindustan Steel Works Construction Corporation
Ltd. v. Employees Union10 that where the dispute arises between an Employer
an employees with respect to the bonus payable under the Act or with respect to
the application of the Act in public sector then such dispute shall be deemed to
be an industrial dispute within the meaning of Industrial Dispute Act, that as
disputed questions of fact were involved, and an alternative remedy was
available under the ID Act, the High Court should have not entertained the Writ
Petition, and should have directed the writ-petitioners to avail the Statutory
Remedy.
It is well-settled that when an alternative and equally efficacious remedy is open to a
litigant, he should be required to pursue that remedy and not invoke the special
jurisdiction of the High Court to issue a prerogative writ.11
Failure on the part of the employee to approach the court or the tribunal under Section
33A or failure to refer the dispute under Section 10(1)(d) of the Act would
therefore disentitle the employee from reinstatement where the employer failed
and/or neglected to make the application under Section 33(2). Moreover, this
contention was upheld by the Supreme Court in the matter of Punjab Beverages
Pvt. Ltd., Chandirarh v. Suresh Chand & Anr.12
The petitioner in the instant case surpassed the alternate remedy available to him and
directly approached the Hon’ble Court. In light of the above submissions it is
established that such petitions are liable to be rejected at the outset due to non-
exhaustion of remedies.

9
Government of India Gazette (1969) page 325.
10
Hindustan Steel Works Construction Corporation Ltd. v. Employees Union, 1995 SCC (3) 474.
11
Union of India v. T. R.Varma [1958] S.C.R. 499.
12
Punjab Beverages Pvt. Ltd., Chandigarh v. Suresh Chand & Anr., 1978 (3) SCR 370.
 THE SECOND ISSUE BEFORE THE COURT IS THAT WHETHER THE DRIVERS WILL BE

CONSIDERED EMPLOYEES OF OOOBER?

That Drivers are Independent Contractors and are on a Contract for Services-

In Montreal v Montreal Locomotive Works Ltd.13 Lord Wright said that in the more
complex condition of modern industry, more complicated test have often to be
applied. According to him, it would be more appropriate to apply a complex test
involving-
1. Control;
2. Ownership of the tools;
3. Chance of profit;
4. Risk of loss; and
5. Control in itself is not always conclusive.
It is further submitted that Ooober’s business model did not involve any investment in
cabs14 and the cabs belonged to the respective drivers only.
An independent contractor is one who undertakes to produce a given result, but so
that in the actual execution of the work he is not under the order or control of the
person for whom he does it, and may use his own discretion in things not
specified beforehand.”15 The Supreme Court in Dharangadhara Chemical
Works Ltd. v. State of Saurashtra16 laid down that control test is no longer
decisive.
The control will no doubt will always have to be considered, although it can no longer
be regarded as the sole determining factor; and that factors which may be of
importance are:
(i) Whether the man performing the services provides his own equipment;
(ii) Whether the person hires his own helpers;
(iii) What degree of financial risk he takes;
(iv) What degree of responsibility for investment and management he has; and

13
Montreal v. Montreal Locomotive Works Ltd., [1944] UKPC 44
14
Factsheet page 1, para 1, line 8.
15
Performing Right Society Ltd. v Mitchell, etc. Ltd., (1924) 1 K.B. 762.
16
Dharangadhara Chemical Works Ltd. v. State of Saurashtra, 1957 SCR 152.
 (v) Whether and how far he has an opportunity of profiting from sound
management in the performance of his task17.
The fact that the Driver used to accept the booking by way of a driver-facing
mobile application, installed on a mobile device provided by Ooober, and then
picked up the customer and dropped him to the desired location 18. Furthermore,
the fact that in order to make himself available for service, the Driver simply has
to log in to the Ooober application on his mobile device.19
Ooober takes cab bookings from customers by way of a mobile application and
connects the customer with the drivers, who have agreed to partner with Ooober
(“Drivers”), available at that time.20
It is further submitted that the word ‘partnered’ provides for an inference that the
Drivers were not under the control or supervision of Oober but more of an equal
relationship where one had the market and the other the skill and tools to make
use of it.
It is most humbly submitted that "aggregator" means a digital intermediary or market
place for a passenger to connect with a driver for the purpose of transportation. 21
In Chiranjit Lal Chowdhary v. Union of India,22 Justice Fazal Ali admitted
Parliamentary history including the speech of the Minister introducing the Bill as
evidence of the circumstances which necessitated the passing of the Act, a
course apparently approved in later decisions.
It is further submitted that a Brazil appeals court on Tuesday ruled that a driver
working for Uber via its ride-hailing app is not an employee of the San
Francisco-based company and therefore not entitled to workers' benefits,
overturning an earlier lower court decision. The judges cited drivers' ability to
log off at will, offer their accounts to other drivers and split fares as evidence
that they should be considered partners of the company and not employees.23

17
Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983
18
Factsheet page 1, para 1, line 10.
19
Factsheet page 1, para 1, line 15.
20
Factsheet para 1 line 8
21
The Motor Vehicles (Amendment) Bill, 2016; Satish N v. State Of Karnataka WRIT PETITION
No.30917/2016 & WRIT PETITION Nos.31359-31361/2016.
22
Chiranjit Lal Chowdhary v. Union of India, AIR 1951 SC 41.
23
http://www.businessinsider.com/r-brazil-appeals-court-rules-uber-driver-not-entitled-to-benefits-2017-5?
international=true&r=US&IR=T; http://ca.reuters.com/article/businessNews/idCAKBN18J38G-OCABS
 IF THE DRIVERS ARE CONSIDERED EMPLOYEES OF OOOBER, WHETHER THEIR

CONSENT IS REQUIRED IN ORDER TO TRANSFER THEIR EMPLOYMENT TO HELLO

CABS?

That the consent of the Drives was not required

It is most respectfully submitted before the Hon’ble High Court that the notice of
change as required by Section 9A of the Industrial Disputes Act, 1947 was not
required in the present case.
A change which is not related to any of the conditions of service enumerated in the
Fourth Schedule will not attract section 9A.24 Hindustan Lever Ltd. v. Ram
Mohan Ray25 held that “unless the workers are adversely affected by the change
in question, it will not fall within the mischief of section 9A.”
It is most humbly submitted that various market studies also started reporting that
Hello Cabs by this juncture had amassed a 51% majority share in the market and
was eating into Ooober’s market share, which now stood at 35%, down from the
55% share that they once had.26 The apprehension of job security of the drivers
does not stand as Oober was continuously making losses and the time where
they all would have lost their jobs was not far away. The change instead of being
an adverse one should be seen as a welcome change.
The scheme of the provisio of Section 25FF emphasizes the policy that if the three
conditions specified in it are satisfied, there is no termination of service either in
fact or law, and so, there is no scope for payment of any compensation. 27 The
three conditions are-
i. The service of the workman has not been interrupted by such transfer;28

24
Indian Oxygen Ltd. v. Udaynath Singh, CA No.724 of 1966, decided by the Supreme Court on 25 th July 1968
(unreported); Workmen of Sur Iron & Steel Co. Pvt. Ltd. v. Sur Iron & Steel Co. Pvt. Ltd. (1971) 1 LLJ 570
(SC); L. Robert R. D’souza v. Executive Engineer, Southern Railway (1982) 1 LLJ 330 (SC); GP Wahal v.
Reserve Bank of India 1983 LIC 738 (All)
25
Hindustan Lever Ltd. v. Ram Mohan Ray (1973) 1 LLJ 427 (SC).
26
Factsheet page 3, para 4 line 9.
27
Anakapalle CAIS v. Workmen (1962) 2 LLJ 621 (SC).
28
South Arcot Electricity Distribution Co Ltd. v. Mohammed Khan (1970) 2 LLJ 44 (SC).
 ii. The terms and conditions of service applicable to the workman after such
transfer are not in any way less favourable to him than those applicable
to him immediately before the transfer;29
iii. The new employer is, under the terms of such transfer or otherwise,
legally liable to pay the workman, in the event of his retrenchment,
compensation on the basis that his service has been continuous and has
not been interrupted by the transfer.30
The Supreme Court has suggested that workmen do not need to give their prior
consent to a transfer of undertaking under section 25-FF of the IDA that leads to
a transfer of workmen.31
There is nothing in the wording of Section 25FF even remotely to suggest that consent
is a pre-requisite for transfer. The underlying purpose of Section 25FF is to
establish a continuity of service and to secure benefits otherwise not available to
a workman if a break in service to another employer was accepted.32
The Apex Court has reaffirmed that the safeguard provided in Section 25FF to the
employee is right to compensation against his former employer on the basis of a
notional retrenchment - except in cases where the successors, under the contract
of transfer itself, adequately safeguarded them by assuring them of continuity of
service and of employment terms and conditions. It is held that the employee can
get compensation or continuity in service, but not both.33
No doubt, the contract of personal service cannot be lightly brushed aside. However,
once the case is covered by Section 25FF, the argument as advanced is
unavailable - which is relevant for common law principles. In that sense, in law,
there is no obligation on the employer to consult his employees either before
taking decision on transfer of Undertaking or the transfer of workmen, as the
case may be.34
In Employees' Union and Ors. v. Industrial Tribunal and Ors 35. the issue came up
for consideration with regard to the consent of workmen in the case of transfer of
29
B.M. Khadar Hussain Sahib v. Mohamed Sheriff And Anr. (1962) 2 MLJ 172.
30
Surajmal Mehta v. Authority Under Payment of Wages Act (1965) 1 LLJ 274.
31
Spencer Group Aerated Water Factory Employees’ Union & Anr. v. The Presiding Officer, Industrial
Tribunal and ors (1997) ILLJ 362 Mad.
32
Mettur Beardsell Ltd. v. The Workmen of Mettur Beardsell Ltd., AIR 2006 SC 2056.
33
Gurmail Singh v. State of Punjab & Ors., 1991 (2) LLJ 76; Air India Aircraft Engineers' Association v. Air
India Ltd., Air India Engineering Services Limited, The Regional Labour Commissioner (Central) and The
Union of India, 2013 (3) ABR 678.
34
Pyarachand Kesariwal Porwal Beedi Factory v. Omkar Laxman Thenge & Ors, 1970 (2) FLR 140.
35
Employees' Union and Ors. v. Industrial Tribunal and Ors.,1996 (89) FJR 728.
 undertaking and it has been held as follows - after advent of Section 25-FF of the
Industrial Disputes Act, 1947, there is no scope for invalidating a transfer of the
ownership or management of an undertaking whether by agreement or by
operation of law, on the ground that consent of the workmen had not been
obtained.
"In fact, the section envisages the continuation of employment and makes provision
for the compensation, only if the transfer results in the termination of the
contract of employment. These provisions show that where the employment
continues inspite of the transfer of the undertaking, the workmen would not be
entitled to notice and retrenchment compensation under section 25F from the
transferor-employer. It is only if there is a transfer of the undertaking and the
said three conditions are not satisfied that a workman would be entitled to such
notice and retrenchment compensation from the transferor employer36.

36
N.T.C(South Maharashtra) Ltd v. Rashtriya Mill Mazdoor Sangh & Ors, (1993) 1 SCC 217 I.
 WHETHER OOOBER’S DELIVERY BUSINESS WAS IN VIOLATION OF THE FOREIGN
EXCHANGE MANAGEMENT ACT, 1999?

That the model adopted by Oober is a Marketplace Model of e-commerce

It is most respectfully submitted that the Oober did not any provisions of the Foreign
Exchange Management Act, 1999 and was in conformity with all the applicable
FDI rules and regulations.
In this regard, it is submitted that ‘E-commerce’ has been defined as buying and
selling of goods and services including digital products over digital & electronic
network.37 It is humbly submitted that an ‘E-commerce entity’ has been defined
as a company incorporated under the Companies Act, 1956 or the Companies
Act, 2013 or a foreign company covered under section 2 (42) of the Companies
Act, 2013 or an office, branch or agency in India as provided in Section 2 (v)
(iii) of FEMA 1999, owned or controlled by a person resident outside India and
conducting the e-commerce business38.
It is respectfully submitted that ‘Market place model of e-commerce’ means providing
of an information technology platform by an e-commerce entity on a digital &
electronic network to act as a facilitator between buyer and seller”.39

That Oober was in conformity with the FDI Regulations

It is respectfully submitted that the Reserve Bank of India is authorized to issue

regulations for transfer of security by a person resident outside India in exercise
of the powers conferred by clause (b) of sub-section (3) of Section 6 and Section
47 of the Foreign Exchange Management Act, 1999. Such regulations have a
statutory character and are required to be strictly adhered with.40
It is humbly submitted that 100% FDI under Automatic route is permitted under
Marketplace Model of E-Commerce. Such Marketplace e-commerce entities are
37
Consolidated FDI Policy of 2016
38
Ibid
39
Foreign Exchange Management (Transfer or Issue of Security by a Person Resident outside India) (Fourth
Amendment) Regulations, 2017, Notification No. FEMA.387/2017-RB dated March 09, 2017
40
Crompton Greaves Ltd. v. Sky Cell Communication Ltd. and Ors., (2003) 115 Comp Cas 832 (Mad).
 permitted to enter into transactions with sellers registered on its platform on B2B
basis. E-commerce marketplace may provide support services to sellers in
respect of warehousing, logistics, order fulfilment, call centre, payment
collection and other services. E-commerce entity providing a marketplace will
not exercise ownership over the inventory i.e. goods purported to be sold.
Goods/services made available for sale electronically on website should clearly
provide name, address and other contact details of the seller. 41 Further, such
regulation has a retrospective effect42.
It is respectfully submitted that Ooober merely provides the platform where the
vendors sell their food products. Ooober, as part of a diversification strategy, and
in order to boost its revenues, integrated delivery services into its mobile
application platform.43 The fact that they entered into integrated ‘Delivery’
Services is itself evident that there is no retailing and mere delivery of food and
beverages provided to it by other hotels and restaurants44. Therefore, Ooober is
in conformity with all the guidelines applicable to such marketplace entities, and
consequently has not violated any FEMA regulation.
It is humbly submitted that direct sales to the ultimate consumer would constitute
retail trade.45 However, the food products of various brands available on
Ooober’s platform are sold by the respective vendors. Ooober’s function is
limited to delivery of such products. Therefore, Ooober does not engage in
multi-brand retail trading and consequently it has not violated any FEMA
regulations associated with such trade.

41
Supra, Note 59
42
All India Footwear Manufacturer and Retailers Association v.Union of India, W.P.(C) No.7479/2015 (Del).
43
Factsheet page 2 para 3 line 1.
44
Factsheet page 2 para 3 line 7.
45
Black’s Law Dictionary, 7th Edition; Federation of Associations of Maharashtra and Ors. v. Union of India,
2005 (79) DRJ 426.
 WHETHER THE PROPOSED TRANSACTION CAN BE COMPLETED DURING THE PENDENCY
OF THE INDUSTRIAL DISPUTE?

That the Proposed Transaction can be completed during the pendency of the
Industrial Dispute

To prevent the arbitrary decision of the employer changing the conditions of service
of workmen, the Hon’ble Supreme Court in Bhavnagar Municipality v. Alibhai
Karimbhai46 has settled the position of law. The following conditions have to be
followed in order to invoke the provisions of section;47
1. There has to be a proceeding in respect of an industrial dispute pending before
the Tribunal48,
2. The alteration has to be in the conditions of service which were applicable
immediately before the commencement of the Tribunal proceedings,49
3. The alteration in the conditions of service has to be related to a matter pending
before the Tribunal,50
4. The workmen whose conditions of service are altered must be related to the
matter,51
5. The alteration of conditions of service must be prejudicial to the workmen.52

The provision applies only when there is a pending proceeding 53, the workman
claiming protection is concerned with the proceedings, the alteration in question
should have an effect on the condition of service of such workman and such
alteration should be in regard to any matter connected with the pending dispute. 54
The only way out of getting out of the ban is for the employer to approach the
authority before whom the dispute is pending, seeking its permission for the
proposed alteration.55
46
Bhavnagar Municipality v. Alibhai Karimbhai, AIR 1977 SC 1229
47
Automobile Products of India v. Rukmaji Bala (AIR 1955 SC 258)
48
Kanan Devan Hills Produce Co. v. Industrial Tribunal, Ernakulam AIR 1963 Ker 44.
49
B. Gopalakrishnan v. The Management of Indian Potash, (1984) 1 MLJ 218.
50
Stanley Mendex v. Glovanola Binny Ltd., (1968) IILLJ 470 Ker.
51
Gujarat Agricultural University v. All Gujarat Kamdar Karmachari Union, (2002) 3 GLR 693
52
Haribhau Shinde And Anr. v. F.H. Lala Industrial Tribunal, AIR 1970 Bom 213.
53
Municipal and Panchayat Employees Union v. State of Gujarat, (1988) 1 LLJ 309 (Guj).
54
Bhavnagar Municipality v. Alibhai Karimbhai, (1977) 1 LLJ 407 (SC).
55
IDL Chemicals Karmika Sangham v. State of AP, 1985 lab IC 1273 (AP).
 It is most respectfully submitted that matters which do not constitute alterations in
conditions of service prejudicial to a workman do not fall within the purview of
S.33. Therefore, the express mandate of S.33(1) is to bar only those change in
conditions of service which cause prejudice to the workman 56. Acts which are
the automatic consequences of operation of law57 or which are sanctioned by
contracts of employment58 are excluded from the scope of prejudicial alterations.
Further, it has been held in the matter where dispute is pertaining to increase in
salary, allowances etc, it would be connected with the transfer of undertaking,
more particularly, when the legislature has expressly made provisions for
contingencies59.
It is humbly submitted that the employer is free to take action against his workmen if
it is not based on any misconduct on their part60. When the alteration effected by
the employer and the dispute pending before the tribunal are not connected with
one another, there is no ban on the power of the employer to to alter the
conditions of service61.
It is therefore submitted that in the light of the above arguments and principles that
the Proposed Transaction can be completed even during the pendency of
Industrial Dispute.

56
General Assurance Society Ltd. v. Employees Assn., (1952) 2 LLJ 193 (LAT).
57
OGD Dalvi v. Goodlass Wall Ltd, (1956) 1 LLJ 599 (LAT).
58
Balkrishna Ganpat v. Ruston & Hornsby, (1956) 1 LLJ 599 (LAT).
59
Rasayanik Kamdar Sangh v. Amal Products Ltd., 2005 (104) FLR 83.
60
Air India Corpn. v. VA Rebellow, (1972) 1 LLJ 501 (SC).
61
Ramesh v. EE, Jayakwadi Project, (2000) 4 LLN 986 (Bom).