IN THE MATTER OF

THE HON’BLE SUPREME COURT OF INDIA

WRIT PETITION (CIVIL) NO. 708 / 2020

IN THE MATTER OF APPELLATE JURISDICTION

AND
IN THE MATTER BETWEEN:

&
GUJARAT MAZDOOR SABHA & ANR…………………………………………… APPELLATE

Versus

THE STATE OF GUJARAT……………………………………………. RESPONDENT

MEMORIAL FOR RESPONDENT

2020

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 TABLE OF CONTENTS

1. INDEX OF ABBREVIATIONS 3

2. LIST OF AUTHORITIES 4

3. STATEMENT OF JURISDICTION 6

4. STATEMENT OF FACTS 7

5. STATEMENT OF ISSUES 9

6. SUMMARY OF ARGUMENT 10

7. ARGUMENTS ADVANCED 11

8. PRAYER 17

2
 Index of Abbreviations

ABBREVIATIONS EXPANSIONS

& And

AIR All India Reporter

¶ Paragraph

S. Section

U.P. Uttar Pradesh

Art. Article

IPC Indian Penal Code

SCR Supreme Court Reporter

Cr.P.C., 1973 The Code of Criminal Procedure, 1973

ed. Edition

e.g. exemplis gratia (Latin)

etc. Etcetera

HC High Court

Hon’ble Honorable

i.e. id Est(Latin)

No. Number

Ors. Others

p. Page Number

SCC Supreme Court Cases

u/s Under Section

3
CASES REFERRED

1. K S Puttaswamy vs. Union of India (2017) 10 SCC 1, para 325

2. S R Bommai vs. Union of India [1994] 2 S.C.R 644
3. Anuradha Bhasin vs. Union of India (2020) 3 SCC 637
4. Romesh Thapar vs. State of Madras 9 (1950) 1 SCR 594
5. Pfizer Private Limited, Bombay vs. Workmen AIR 1963 SC 1103
6. Hindustan Machine Tools Ltd. vs. Labour Court (1994) 1 LLN 256

STATUTES REFERRED

1. CONSTITUTION OF INDIA, 1949

2. THE FACTORIES ACT, 1948

JOURNAL

1. All India Reporter (AIR)

2. Supreme Court Cases (SCC)

BOOKS AND OTHER RESOURCES REFFERED

1. THE FACTORIES ACT, 1948 –

 FACTORIES ACT 1948 WITH FACTORIES RULES 1969, YASHPAL

PULIANI,TWELFTH EDITION, 2022.
 LABOUR LAW AGENCY'S BARE ACT ON THE FACTORIES ACT, 1948,
2017EDITION, LABOUR LAW AGENCY.

2. THE CONSTITUTION OF INDIA -

 D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA,

WADHWA, INDIA, 2007, 8TH EDITION, VOLUME I AND II
 M.P. JAIN, INDIAN CONSTITUTIONAL LAW, (LEXIS NEXIS EIGHT
EDITION, 2018)
 H.M. SEERVAI, CONSTITUTION LAW OF INDIA, UNIVERSAL

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 PUBLICATIONS,INDIA, 2004, 4TH EDITION, VOLUME I,II AND III

3. WEBSITES ACCESSED
www.scconline.inwww.

manupatra.com

www.indiankanoon.org

www.legalservices.com

www.thelawdictionary.c

om

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 STATEMENT OF JURISDICTION

The Honorable Supreme Court of India has the jurisdiction to entertain and dispose of
the present case by virtue of Article 32 of the Constitution of India. The Respondent
approached before the Supreme Court,

Article 32 provides Remedies for enforcement of rights conferred by this Part by the
Supreme Court-

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs i n the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and
(2), Parliament may by law empower any other court to exercise within the local limits
of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause
(2).

(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.

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 STATEMENT OF FACTS

Invoking its powers under Section 5 of the Factories Act, 1948, the State of Gujarat has
exempted factories from observing some of the obligations which employers have to fulfil
towards the workmen employed by them. The government justifies the action on the
ground that industrial employers are faced with financial stringency in the economic
downturn resulting from the outbreak of COVID -19. A trade union with a state-wide
presence and another with a national presence are before this court in a petition under
Article 32 of the Constitution to challenge the validity of the state’s notifications dated 17
April 2020 and 20 July 2020.

A nationwide lockdown was declared by the Central Government from 24 March 2020 to
prevent the spread of the COVID-19 pandemic. Economic activity came to a grinding halt.
The lockdown was extended on several occasions, among them for the second time on 14
April 2020. On 17 April 2020, the Labour and Employment Department of the State
of Gujarat issued a notification under Section 5 of the Factories Act to exempt all factories
registered under the Act “from various provisions relating to weekly hours, daily hours,
intervals for rest etc. for adult workers” under Sections 51, 54, 55 and 56. The stated aim
of the notification was to provide “certain relaxations for industrial and commercial
activities” from 20 April 2020 till 19 July 2020. The notification in its relevant part is
extracted below:

“…NOW, THEREFORE, in exercise of the powers conferred by Section 5 of the Factories

Act, 1948 (LXIII of 1948), the Government of Gujarat hereby directs that all the factories
registeredunder the Factories Act, 1948 shall be exempted from various provisions relating
to weekly hours, daily hours, intervals for rest etc. of adult workers under section 51,
section 54, section 55 and section 56 with the following conditions from 20th April till 19th
July 2020-

(1) No adult worker shall be allowed or required to work in a factory for more than twelve
hours in any day and Seventy-Two hours in any week.

(2) The Periods of work of adult workers in a factory each day shall be so fixed that no
period shall exceed six hours and that no worker shall work for more than six hours before
he has had an interval of rest of at least half an hour.

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(3) No Female workers shall be allowed or required to work in a factory between 7:00
PM to6:00 AM.

(4) Wages shall be in a proportion of the existing wages (e.g., If wages for eight hours
are 80Rupees, then proportionate wages for twelve hours will be 120 Rupees).”

On its lapse by the efflux of time, the State government issued another notification on 20
July 2020. Similar in content, the new notification extended the exemption granted to
factories from 20 July 2020 till 19 October 2020.

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 ISSUES RAISED

The following issues have arisen for determination before the Hon’ble Court in the
instantmatter:

1. WHETHER THE NOTIFICATIONS FALL WITHIN THE AMBIT OF

THE POWER CONFERRED BY SECTION 5 OF THE FACTORIES ACT
1948 VALID OR NOT?

2. WHETHER THE ECONOMIC CRICIS CAUSED DUE TO PANDEMIC

CONSIDERED AS A ‘PUBLIC EMERGENCY’ AS PROVIDED IN
SECTION 5 OF THE FACTORIES ACT

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 SUMMARY OF ARGUMENTS

1. WHETHER THE NOTIFICATIONS FALL WITHIN THE AMBIT OF THE

POWER CONFERRED BY THE SECTION 5 OF THE FACTORIES ACT 1984
VALID OR NOT?

The counsel on behalf of respondent claims that, the notification does fall within the ambit of
the power conferred by the section 5 of the factories act 1984, and the notification issued by
the state is valid under the purview of law.

2. WHETHER THE ECONOMIC CRICIS CAUSED DUE TO PANDEMIC

CONSIDERED AS A ‘PUBLIC EMERGENCY’ AS PROVIDED IN SECTION 5
OF THE FACTORIES ACT

The counsel on behalf of respondent claims that the notification issued by the government
under sec.5 of the Factories Act states that the state can exempt any factory or class of factories
from all or any provisions of the act in a ‘Public Emergency’.

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 ARGUMENTS ADVANCED

ISSUE I: WHETHER THE NOTIFICATION FALL WITHIN THE AMBIT OF THE

POWER CONFERRED BY THE SECTION 5 OF THE FACTORIES ACT 1984 VALID
OR NOT

The counsel from the respondent’s side contends that the notification issued by the state
government under sec.5 of the Factories Act is valid and neither have they violated the
fundamental rights under articles 23, 21 and 14 of the Constitution. The notification issued by
the government under sec.5 of the Factories Act states that the state can exempt any factory or
class of factories from all or any provisions of the act in a ‘Public Emergency’.

Continuing the previous argument, the counsel justifies the term ‘Public Emergency’ in context
with the COVID-19 pandemic. The pandemic is a public emergency as it has disrupted the
“social order of the country.” Emergency measures were introduced so that the existence and
integrity of the state can be protected.

The counsel further highlights that the notification was issued under sec.5 of the factories act
so that the minimum production levels in the factors were observed. There is no exceptional
pressure of work in the factory so sec.65 (2) is not the basis for issuance of the notification.

The counsel from the respondent side further alleges that the labourers were only allowed to
work three additional hours and employers were also going to proportionally compensate them
for the same. It also observed that the employers are also facing financial problems due to this
lockdown so, the conditions are being applied.

The counsel further gives a reference of the Pfizer Private Limited, Bombay vs. workmen 1
stating that during the time of the emergency, all the important steps should be taken so that
the industrial production of the nation can be enhanced.

In the present case of Gujarat Mazdoor Sabha and Another vs. State of Gujarat, the issue at
hand pertains to the validity of a notification issued under Section 5 of the Factories Act, 1984.
The counsel hereby argues in favor of the State of Gujarat that hinges on the assertion that the
impugned notification is a legitimate exercise of delegated legislative power, aligning with the
objectives and parameters laid down in Section 5. This argument can be further reinforced by

1
Pfizer (P) ltd.. Bombay vs the workmen on 30 November, 1962. https://indiankanoon.org/doc/496787/.

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drawing parallels to the interpretation of constitutional provisions regarding emergency
situations, as elucidated in the landmark case of S.R. Bommai v. Union of India (1994)2.

The Supreme Court's analysis in S.R. Bommai case sheds light on the interpretation of Articles
352, 355, and 356 of the Constitution, which deal with emergency provisions. The Court
emphasized that the invocation of emergency powers is a solemn constitutional responsibility
and can only be justified in cases of grave emergency as envisaged by the provisions
themselves. This underscores the principle that emergency powers should not be invoked
arbitrarily or for purposes other than those specified in the constitutional framework.

Similarly, it is argued that the powers conferred upon the State of Gujarat under Section 5 of
the Factories Act, 1984, are to be exercised judiciously and in accordance with the statutory
mandate. Just as emergency powers are circumscribed by specific conditions and limitations,
the authority granted to state governments under Section 5 is delimited by the objectives and
provisions of the Factories Act itself. The State of Gujarat, in issuing the impugned notification,
was acting within the confines of this statutory framework, with the primary aim of promoting
the health, safety, and welfare of factory workers.

Moreover, the Court's observation regarding the common thread connecting emergency
provisions underscores the need for a coherent and consistent interpretation of legislative
enactments. By analogy, the interpretation of delegated legislative powers under the Factories
Act should be guided by the overarching objectives of the legislation, namely, the protection
of workers' rights and well-being. Just as emergency powers are invoked only in exceptional
circumstances, the regulatory measures implemented under Section 5 should be tailored to
address specific concerns related to factory operations and worker safety.

Furthermore, the principles enunciated in S.R. Bommai case emphasize the importance of
constitutional values and the rule of law in the exercise of governmental authority. It can be
argued that the State’s actions in issuing the notification under Section 5 were in consonance
with these principles, as they were aimed at upholding the fundamental rights and interests of
factory workers. By ensuring compliance with health and safety standards, the notification

2
Sehgal, D.R. (2021) The pandemic, labour rights, and Supreme Court’s judgment in the Gujarat mazdoor
sabha case, iPleaders. https://blog.ipleaders.in/the-pandemic-labour-rights-and-supreme-courts-
judgment-in-the-gujarat-mazdoor-sabha-case/).

12
sought to mitigate potential risks and hazards in the workplace, thereby advancing the broader
goals of social justice and welfare.

In conclusion, the arguments presented in S.R. Bommai case regarding the interpretation of
emergency provisions can be invoked to support the validity of the notification issued by the
State of Gujarat under Section 5 of the Factories Act, 1984. Just as emergency powers are
circumscribed by specific constitutional safeguards, the exercise of delegated legislative
authority under the Factories Act is subject to the overarching objectives and provisions of the
legislation. By adhering to these principles, the State of Gujarat acted within its statutory
mandate to protect the interests of factory workers and promote a safe and conducive working
environment.

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ISSUE 2- WHETHER THE ECONOMIC CRICIS CAUSED DUE TO
PANDEMIC CONSIDERED AS A ‘PUBLIC EMERGENCY’ AS
PROVIDED IN SECTION 5 OF THE FACTORIES ACT

The counsel humbly submits before this Hon’ble court that in the present case, on behalf of the
state, State’s actions, rooted in a meticulous analysis of statutory provisions and legal principles
and Central to the State's position is its interpretation of Section 5 of the Act, confers upon the
state government the power to exempt any provision during a public emergency. The State
contends that the current circumstances, characterized by a pandemic and lockdown measures,
meet the threshold for a public emergency as defined by the Act. Drawing upon the legal
doctrine of noscitur a sociis, the State asserts that the term "internal disturbance" should be
construed in conjunction with "war" and "external aggression," implying a grave threat to the
security of the nation. In the absence of such imminent dangers, the State argues that the
pandemic and lockdown warrant the invocation of emergency powers.

Section 5 of the Act serves as the linchpin of the State's argument, providing a legal framework
for the exercise of executive authority during times of crisis. By conferring discretionary power
upon the state government to exempt provisions of the law, the Act acknowledges the need for
flexibility in responding to emergent situations. However, the State emphasizes that this power
must be exercised judiciously and in accordance with the parameters outlined in the Act. In
interpreting the scope of a public emergency, the State advocates for a strict adherence to
statutory language and principles of statutory construction.

Crucially, the State contends the pandemic and the lockdown measures qualify as events of the
magnitude required to trigger emergency powers under the Act. While acknowledging the
challenges posed by the pandemic, the State maintains that they do rise to the level of a grave
threat to national security akin to war or external aggression.

Moreover, In the present case of Gujarat Mazdoor Sabha v. State of Gujarat, the State of
Gujarat finds itself entangled in a complex legal argument pertaining to the interpretation of a
public emergency and the corresponding actions taken under the ambit of law. At the heart of
this argument, lies the contention that the ongoing circumstances, marked by lockdowns and a
pandemic, constitute a threat to the security of India or a portion of its territory, thereby
necessitating measures akin to those taken during a state of emergency. Central to the State's

14
argument is the reliance on legal precedents, including the pivotal case of Pfizer Pvt. Ltd.
Bombay v. Workmen (1963)3, which provides a framework for understanding the obligations
of employers during times of national crisis.

The State's position hinges on the assertion that the current situation, exacerbated by the
COVID-19 pandemic, qualifies as a public emergency as defined by relevant legal statutes. It
contends that the disruptions caused by the pandemic, including financial chaos and
administrative upheaval, amount to a threat to the security and stability of the nation. To bolster
this argument, the State draws upon the findings of the Sarkaria Commission, which underscore
the profound impact of the pandemic on various facets of governance and public life. By
framing the pandemic as a natural calamity leading to internal disturbance, the State seeks to
justify its actions within the legal framework governing public emergencies.

In support of its interpretation of the law, the State invokes the precedent set forth in Pfizer
Pvt. Ltd. Bombay v. Workmen (1963)4, a landmark case that delves into the obligations of
employers during periods of national emergency. In this seminal case, the Supreme Court
articulated the principle that employers have a duty to contribute to enhancing industrial
production in times of crisis, in alignment with the nation's requirements. The Court
emphasized the importance of cooperation between employers and employees in striving
towards the common goal of maintaining essential services and production levels during
emergencies.

Crucially, the ruling in Pfizer Pvt. Ltd. Bombay v. Workmen (1963)5 underscores the notion
that employers must act responsibly and ethically in their pursuit of increased productivity
during national emergencies. While employers are expected to make concerted efforts to meet
the demands of the nation, this must be achieved through fair and reasonable means, with due
consideration for the welfare of workers. The Court's pronouncement emphasizes the symbiotic
relationship between employers and employees, highlighting the need for mutual cooperation
and understanding in times of crisis.

Applying the principles in Pfizer Pvt. Ltd. Bombay v. Workmen (1963) 6 to the present case,
the State argues that its actions, including the issuance of notifications aimed at maintaining
essential services and productivity levels, are in accordance with the legal framework

3
Supra note 1
4
Supra note 1
5
Supra note 1
6
Supra note 1

15
governing public emergencies. By setting minimum targets for work output, the State seeks to
ensure the continued functioning of vital sectors despite the challenges posed by the pandemic.
Moreover, it contends that such measures are essential for safeguarding the interests of the
nation and mitigating the adverse effects of the crisis.

In essence, the State's argument in Gujarat Mazdoor Sabha v. State of Gujarat is grounded in a
careful interpretation of legal statutes and precedents, particularly Pfizer Pvt. Ltd. Bombay v.
Workmen (1963)7. By framing the pandemic as a public emergency warranting extraordinary
measures, the State seeks to justify its actions aimed at maintaining essential services and
productivity levels. Through its reliance on legal principles governing national emergencies
and the obligations of employers therein, the State endeavors to navigate the complexities of
the law while addressing the exigencies of the present crisis.

7
Supra note 1

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 PRAYER

Wherefore, in the lights of the facts presented, issue raised and arguments advanced the State
of Gujarat respectfully prays before this Hon’ble Court for the following relief:

1. A declaration affirming that the actions taken by the State in response to the pandemic
and associated challenges are lawful and within the scope of its authority under relevant
legal statutes.
2. An acknowledgment that the measures implemented by the State are aimed at
safeguarding public health, maintaining essential services, and mitigating the impact of
the crisis on the welfare of citizens.

Any further relief deemed just and appropriate by this Hon’ble Court in the circumstances of
the case.

The State submits that the granting of these reliefs will ensure clarity regarding its actions and
facilitate the effective management of the ongoing challenges posed by the pandemic.

COUNSEL FOR RESPONDENT

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