INTRA MOOT COURT COMPETITION-2019, LAW SCHOOL, BHU

INTRA-LAW SCHOOL MOOT COURT COMPETITION-2019 ||T22-R11||

Before
THE SUPREME COURT OF ZAMBA

Appeal No. ____ Of 2019

(Article 136 of the Constitution of Zamba, 1950)

Vardhmaan Vajpayee………………………...…………...……………………….Appellant

VERSUS

Bar Council of Zamba……………………………….…….………………Respondent No. 1

WITH

Application No. ___Of 2019

(Article 139A r/w Article 142 of the Constitution of Zamba, 1950)

Workers’ Union of Hindustan Caliver Limited………….……………………….Petitioner

VERSUS

Global Black & Case Company Limited………………………..………..Respondent No. 2

Hindustan Caliver Limited……………………………………………..…Respondent No. 3

WITH

Vidhik Jagrukta Manch………………………………………………………...….Petitioner

VERSUS

State of Domba………………………………………………………….....Respondent No. 4

MOST RESPECTFULLY SUBMITTED,

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT(S).

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TABLE OF CONTENTS

INDEX OF AUTHORITIES ........................................................................................................4

STATEMENT OF FACTS ..........................................................................................................6
STATEMENT OF JURISDICTION............................................................................................8
STATEMENT OF ISSUES .........................................................................................................9
SUMMARY OF ARGUMENTS ............................................................................................... 10
ARGUMENTS ADVANCED ................................................................................................... 12
1. THAT THE APPEAL FILED BY THE VARDHMAN VAJPAYEE AGAINST THE DECISION
OF THE BAR COUNCIL OF ZAMBA & ALSO, APPLICATION TO CLUB IT WITH THE
PETITIONS PENDING IN THE HON’BLE HIGH COURT OF DOMBA IS NOT
MAINTAINABLE…………………………………………………..............................................12

1.1 That the alternative remedy has not been exhausted before making an appeal
under article 136…………………………………………………………….12
1.2 That the petitions pending before the high court doesn’t involve the same or
substantially the same question of law for the purpose of article 139A…….13
1.3 That the exercise of the power of the apex court under article 142 should not
be in contravention with the constitution itself……………………………..14
2 THAT THE ACTION TAKEN BY THE STATE BAR COUNCIL WHICH WAS
ALSO AFFIRMED BY THE BAR COUNCIL OF ZAMBA AGAINST THE
SENIOR ADVOCATE VARDHMAAN VAJPAYEE WAS NOT
ERRONEOUS……………………......................................................................15
2.1 That the appellant being an advocate cannot become a managing director of
any company………………………………………………………………...15
2.2 That the argument made by the appellant that he is not a regular member of
the company is illogical and unconscionable………………………………..16
2.3 That the appellant was provided an adequate opportunity of hearing before the
disciplinary committee………………………………………………………18
3 THAT THE PETITIONS FILED BY WORKERS’ UNION OF HINDUSTAN CALIVER
LIMITED AND VIDHIK JAGRUK MANCH ALLEGING THE UNPLEASANT
CONDITIONS DOESN’T DRAW THE LIABILITY OF RESPONDENT(s)………...18
3.1 That the global black & case company limited being a mere shareholder is
not concerned with the employees of HCL……………………………………..18

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3.2 That the Hindustan Caliver Limited does not hold any primary liability for
such problems faced by employees………………………………………….19
3.3 That the Public Interest Litigation filed by the NGO, Vidhik Jagrukta Manch
before the High Court is frivolous in nature………………………………....20

PRAYER……………………………………………………………………………………..21

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INDEX OF AUTHORITIES

STATUTES

 Advocates Act, 1961(Act 25 of 1961)

 Constitution of India, 1950
 Contract Labour (Regulation and Abolition) Act, 1970 (Act 37 of 1970)
 Employees’ State Insurance Act, 1948 (Act 34 of 1948)
 Factories Act, 1948 (Act 63 of 1948)
 The Companies Act, 2013(Act 18 of 2013)

BOOKS AND ARTICLES

1. S.N Mishra, Labour& Industrial laws (Central Law Publications, Allahabad, 28th
edn.,2018)
2. M P Jain, Indian Constitutional Law (Lexis Nexis, Haryana, 8th edn. 2018)
3. P.L. Maliks, Labour and Industrial Law (Eastern Book Company,Lucknow, 17th
edn.,2017)
4. P M Bakshi, The Constitution of India (Lexis Nexis, Haryana, 14 th edn., 2017)
5. J.P.S. Sirohi, Professional Ethics, Accountancy for Lawyers & Bench Bar Relations
(Allahabad Law Agency, Haryana, 5thedn. 2012)
6. Avtar Singh, Comapany Law (Eastern Book Company, Delhi, 17th edn. 2018)
7. V N Shukla, Constitution of India (Eastern Book Company, Delhi, 13th edn. 2017)

CASE LAWS

1. Ballabhdas v. State of Bihar, AIR 1966 SC 814, CIT v. K.W. Trust, AIR 1967 SC
844……………………………………………………………………………………13

2. Deepak Aggarwal v. KeshavKaushik and Ors. 2013 (5) SCC 277…………………..18

3. Dr. Haniraj L. Chulani v. Bar Council of Maharashtra & Goa1996 SCC (3) 342…...16
4. Employees State Insurance Corpn. v. Apex Engineering P. Ltd.(1998) 1 Comp LJ
10: [19981 1 LLJ 274 (SC)…………………………………………………………...17

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5. Happy Home Builders (Karnataka) P. Ltd. v. Delite Enterprises(1994) 13 Corpt LA

405 (Kar)……………………………………………………………………………...17
6. Indira Nehru Gandhi v. Raj Narain 1975 SCC (2) 159………………………………14

7. Madhav M. Bhokarikar v. Ganesh M. Bhokarikar2004 (2) SCR 1122……………....17

8. People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235……….20
9. S.G.C & D.T. Employees’ Union v. S.G.C.& D.T. Ltd. (1986) 2 SCC 35; AIR 1985
SC 504………………………………………………………………………………..13
10. Sanwat Singh v. State of Rajasthan, AIR 1961 SC 715……………………………..13
11. Satish Kumar Sharma v. Bar Council of Himachal Pradesh, (2001) 2 SCC 365…….15
12. Secretary State of Karnataka v. Umadevi, (2006) 4 SCC 1, 36: AIR 2006 SC 1806..19

13. Secretary vs. Suresh (1999) 3 SCC 601……………………………………………....19

14. State of Gujarat v. Vogue Garments (1983) 1 LLJ 225……………………………...19

ONLINE DATABASE
 SCC Online
 Manupatra
 ILI, Digital Resource

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STATEMENT OF FACTS

1. The material case arises out of three separate claims: first, an appeal pending before
the Hon’ble Supreme Court of Zamba against the decision of Bar Council of Zamba;
Second, Public Interest Litigation before the Hon’ble High Court of Domba; Third,
Petition pending before the High Court of Domba.

I:- BACKGROUND.

2. Vardhman Vajpayee is an advocate in the roll of the Bar Council of Domba and
designated as Senior Advocate under the Legal Practitioners Act, 1961.
3. He was also a shareholder in a “Global Black & Case Company Limited” (Hereinafter
referred as ‘GBC’), a Public Company registered in United States of America and
whose registered office was situated in New York. GBC started its business after
seeking permission from Reserve Bank of Zamba under Foreign Exchange and
Regulation Act, 1973.
4. GBC has purchased a bulk of share of Hindustan Caliver Limited (Hereinafter referred
‘HCL’) registered under Companies Act, 1956. This company engaged more than 200
employees for its day-today work and most of them were hired from Hindustan
Teleliver Limited.

II:- APPEAL AGAINST THE CANCELLATION OF LICENSE.

5. Mr. Vajpayee had accepted the post of Managing Director in a Foreign Company. A
complaint was filed against him before the Bar Council of Domba. After providing the
reasonable opportunity of hearing, Bar Council of Domba cancelled his license
considering it as a professional misconduct under the Legal Practitioners Act, 1961.
6. Thereafter, he filed an appeal before the Bar Council of Zamba which rejected his
pleas and affirmed the decision of Bar Council of Domba.
7. Aggrieved by the decision of Bar Council of Zamba, Mr. Vajpayee directly moved to
the Hon’ble Supreme Court of Zamba.

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III:- PETITION BEFORE HIGH COURT OF DOMBA.

8. The Workers Union of Hindustan Caliver Limited moved to the High Court of Domba
and filed a petition against the company including the Global Black & Case Company
Limited considering it as the holding company of Hindustan Caliver Limited.

IV:- PUBLIC INTEREST LITIGATION BEFORE THE HON’BLE HIGH COURT OF

DOMBA.

9. One NGO, ‘Vidhik Jagrukta Manch’ has filed the Public Interest Litigation before the
Hon’ble High Court of Domba against the insecure and unpleasant environment of the
companies situated in the State of Domba being the violative of Factories Act, 1948
and also of Article 21 of the Constitution of Zamba.

V:- WITHDRAWAL OF THE PETITION AND CLUBBING IT WITH THE APPEAL

PENDING BEFORE THE HON’BLE SUPREME COURT OF ZAMBA.

10. On the request of Mr. Vardhman Vajpayee, considering the issues which were pending
before the Domba High Court, as the issues having the substantial question of law and
of general importance which has its connection with same person the Hon’ble Supreme
Court of Zamba has withdrawn both the petitions and clubbed it with the appeal
pending before it.

VI:- HEARING OF THE CASE

11. The case was put for the oral arguments before on 21st February, 2019.

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STATEMENT OF JURISDICTION

I. The Appellant has approached before this Hon’ble Court under Article 136 of the
Constitution of Zamba, 1950, that reads:
“(1)Notwithstanding anything in this chapter, the Supreme Court may, in its
discretion, grant special leave 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 Zamba.”
The Respondent humbly submits to the jurisdiction of the Hon’ble Court.

II. The Appellant has also filed an application before this Hon’ble Court under
Article 139A to club the petitions pending before the Hon’ble High Court of
Domba. The Respondent humbly submits to the jurisdiction of the Hon’ble Court.

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STATEMENT OF ISSUES

I.WHETHER THE APPEAL FILED BY THE VARDHMAN VAJPAYEE AGAINST THE

DECISION OF THE BAR COUNCIL OF ZAMBA & ALSO, APPLICATION TO CLUB IT
WITH THE PETITIONS PENDING IN THE HON’BLE HIGH COURT OF DOMBA IS
MAINTAINABLE ?

II.WHETHER THE ACTION TAKEN BY THE STATE BAR COUNCIL OF DOMBA

WHICH WAS ALSO AFFIRMED BY THE BAR COUNCIL OF ZAMBA AGAINST THE
SENIOR ADVOCATE VARDHMAAN VAJPAYEE WAS ERRONEOUS?

III.WHETHER THE PETITIONS FILED BY THE WORKER’S UNION OF HINDUSTAN

CALIVER LIMITED AND NGO, ‘VIDHIK JAGRUKA MANCH’ ALLEGING THE
UNPLEASANT CONDITIONS DRAWS THE LIABILITY OF RESPONDENT(S) ?

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SUMMARY OF ARGUMENTS

I. THAT THE APPEAL FILED BY THE VARDHMAN VARDRAJAN AGAINST

THE ORDER OF BAR COUNCIL OF ZAMBA & APPLICATION, TO CLUB IT
WITH THE PETITIONS PENDING IN THE HON’BLE HIGH COURT IS NOT
MAINTAINABLE.

It is most respectfully submitted before this Hon’ble Court that the appeal filed by the Senior
Advocate Vardhmaan Vajpayee against the order of the Bar Council of Domba which was
also affirmed by the Bar Council of Zamba is not maintainable. The appellant has not
exhausted the alternate remedies available to him before invoking Article 136 of the
Constitution of Zamba.

The application filed by the advocate to club the petitions pending before the Hon’ble High
Court of Domba under Article 139A read with Article 142 is also not maintainable since the
two matters don’t involve substantially the same question of law. The conditions given under
Article 139A doesn’t attract the contentions made by the appellant in order to club it with the
appeal before the Hon’ble Supreme Court of Zamba.

II. THAT THE ACTION TAKEN BY THE STATE BAR COUNCIL WHICH WAS
ALSO AFFIRMED BY THE BAR COUNCIL OF ZAMBA AGAINST THE SENIOR
ADVOCATE VARDHMAAN VAJPAYEE WAS NOT ERRONEOUS.

The Counsel humbly submits before this Hon’ble Court that the action taken by the State Bar
Council on the basis of the findings of Disciplinary Committee which was also affirmed by
the Bar Council of Zamba is not erroneous. Being an Advocate, Mr. Vardhmaan Vajpayee
was explicitly prohibited from taking any Business and accepting the post of a Managing
Director as per the mandates of Bar Council of Zamba Rules, 1975. The advocate here is
guilty of professional misconduct and hence the decision of cancelling his license is justified.

III. THAT THE PETITIONS FILED BY THE WORKER’S UNION OF HINDUSTAN

CALIVER LIMITED AND VIDHIK JAGRUKA MANCH ALLEGING THE
UNPLEASANT CONDITIONS DOESN’T DRAW THE LIABILITY OF
RESPONDENT(S).

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The counsel here representing Respondent No. 2 i.e. Global Black & Case Company Limited
humbly submits that it does not draw any liability under the Factories Act, 1948 as
contended. The company is just a shareholder and is not a ‘holding company’ as considered
by the petitioner Worker’s Union of HCL.

The counsel here representing Respondent No. 3 i.e. Hindustan Caliver Limited humbly
submits that being a contractor, Hindustan Teleliver Limited is liable under the Contract
Labour (Regulation and Abolition) Act, 1947 for not providing the basic amenities to the
employees. As the matter of prudence and law also, the contractor should be first held liable
for any contraventions.

The counsel here representing Respondent No. 4 i.e. the State of Domba humbly submits that
the Public Interest Litigation filed by the NGO, ‘Vidhik Jagrukta Manch’ frivolous in nature.
The State is obliged to make sure the proper execution of the legislations in its territory. The
inspection by the Inspector on the premises of the company reflects the commitment of the
State to provide healthy, safe and secure environment to the workers of any company.

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ARGUMENTS ADVANCED

I:- THAT THE APPEAL FILED BY THE VARDHMAN VAJPAYEE AGAINST THE
DECISION OF THE BAR COUNCIL OF ZAMBA & ALSO, APPLICATION TO
CLUB IT WITH THE PETITIONS PENDING IN THE HON’BLE HIGH COURT OF
DOMBA IS NOT MAINTAINABLE.

1.While exercising the jurisdiction under Article 1361 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 a country. 2 The power of the
court to hear appeals in this article is much wider and general. 3 Under Article 139A4,
Supreme Court may dispose of all the cases itself pending before the Supreme Court and one
or more High Court or two or more High Courts, involving the same or substantially the same
questions of law.5 Article 1426 mandates that the Supreme Court in the exercise of the
jurisdiction may pass such decree or make such order as is necessary for doing complete
justice in any cause or matter pending before it.7

2.It is submitted that the present appeal against Bar Council of Zamba is not maintainable on
the ground [1.1] That the alternative remedy has not been exhausted before making an appeal
under Article 136; and application to club it with the petitions pending in the Hon’ble High
Court is also not maintainable on primarily two Grounds [1.2] That the petitions pending
before the High Court doesn’t involve the same or substantially the same question of law for
the purpose of Article 139A; [1.3] That the exercise of the power of the Apex Court under
Article 142 should not be in contravention with the Constitution itself.

1.1 THAT THE ALTERNATIVE REMEDY HAS NOT BEEN EXHAUSTED BEFORE
MAKING AN APPEAL UNDER ARTICLE 136.

1
The Constitution of India, art 136.
2
Id. (1).
3
V.N. Shukla, Constitution of India (Eastern Book Company, Delhi, 13th edn., 2015).
4
The Constitution of India, art 139A.
5
Id. (1).
6
The Constitution of India, art 142.
7
Id. (1).

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3. It is submitted that the Supreme Court will grant special leave to appeal in exceptional
cases- cases where grave and substantial injustice has been done. 8 Article 136 does not confer
a right of appeal on a party as such but it confers a wide discretionary power on the Supreme
Court to grant special leave to appeal in suitable case. 9

4. The power under Article 136 shall be exercise by the Supreme Court in accordance with
the well-established judicial principles, or well-know norms of procedure which have been
recognised for long as precedents.10 It is a well settled principle that before invoking the
jurisdiction of the Court under Article 136, the aggrieved party must exhaust any remedy
which may be available11, it is therefore, not designed to permit access to this Court where
other equally efficacious remedy is available and where the question is not of public
importance.12 Court should not entertain appeals unless the appellant has exhausted the
alternative remedies provided by the relevant law. 13

5. In the Instant case the appellant had the opportunity to file review under the section 44 of
the Advocates Act, 1961 which states that “the disciplinary committee of the bar council may
of its own motion or otherwise review any order within the sixty days of the date of that order
passed by it.”

6. The Court’s power under Article 136 is extraordinary and discretionary and should,
therefore, be used in exceptional circumstances; and, this power should be exercised when
there is a miscarriage of justice. 14 In the instant case the appellant was given an opportunity
of hearing15 and due process has been followed, which itself suggest that there is no gross
miscarriage of justice or this case is of an exceptional nature.

1.2 THAT THE PETITIONS PENDING BEFORE THE HIGH COURT DOESN’T INVOLVE
THE SAME OR SUBSTANTIALLY THE SAME QUESTION OF LAW FOR THE PURPOSE
OF ARTICLE 139A.

8
Sanwat Singh v. State of Rajasthan, AIR 1961 SC 715: (1961) 3 SCR 120.
9
V.N. Shukla, Constitution of India (Eastern Book Company, Delhi, 13th edn., 2015).
10
Id.
11
M.P. Jain, Indian Costitutional Law (Lexis Nexis, Delhi, 8th edn., 2018).
12
S.G.C & D.T. Employees’ Union v. S.G.C.& D.T. Ltd. (1986) 2 SCC 35; AIR 1985 SC 504.
13
Ballabhdas v. State of Bihar, AIR 1966 SC 814, CIT v. K.W. Trust, AIR 1967 SC 844.
14
Supra note 11 at 136.
15
Moot proposition ¶.

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7. It is submitted before this court that power of the apex court to transfer certain cases is
subject to involving the same or substantially the same question of law.

8. That in the present case, an appeal of the Vardhmaan Vajpayee to the Supreme Court is
solely on the basis of the cancellation of his license by the Bar Council of Zamba, while the
petition pending before the Hon’ble High Court of Domba involves the question of Factories
Act, 1948 and Article 21 of the Constitution.

9. That the filed appeal in the Supreme Court is of private in nature and petitions before the
Hon’ble High Court of Domba are public in nature.

10. That the cases are of different nature and based on the different questions of law, the
power of the Hon’ble Apex Court to transfer the cases from the High Court of Domba and
disposing them of with the appeal of Vardhmaan Vajpayee couldn’t be legitimately
exercised.

1.3 THAT THE EXERCISE OF THE POWER OF THE APEX COURT UNDER ARTICLE
142 SHOULD NOT BE IN CONTRAVENTION WITH THE CONSTITUTION ITSELF.

11. Article 142 enables the Court to make an order to do complete justice in the matter it is
hearing in exercise of its jurisdiction. Article 142 does not seem to expand the jurisdiction of
the Supreme Court. It does however enhance the power of the Court to give relief in a matter
it is deciding. This means that the matter in question should otherwise fall within its
jurisdiction.16

12. The Constitutional Bench decision in Secy State of Karnataka v. Umadevi17 held that
“complete justice” under Article 142 means justice according to law and not sympathy.

13. That an order made under Article 142(1) cannot contravene a constitutional provisions. 18
The power under this Article cannot be used to supplant the law or to build a new edifice
where none existed earlier and thereby achieving something indirectly which cannot be
achieved directly. 19

14. Clubbing of cases by exercising the power under article 139A r/w 142 would be against
the rule of law, which indeed is the basic structure of Indian Constitution.20 Therefore, it is

16
M.P. Jain, Indian Constitutional Law 262 (Lexis Nexis, New Delhi, 8th ed., 2018).
17
Secretary State of Karnataka v. Umadevi, (2006) 4 SCC 1, 36 : AIR 2006 SC 1806.
18
Supra, note 16 at 282.
19
Id. at 284.
20
Indira Nehru Gandhi v. Raj Narain. 1975 SCC (2) 159.

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submitted that exercise of the power within article 142 cannot be used to expand the scope of
art. 139A and so the application filed by the appellant should be dismissed.

II:- THAT THE ACTION TAKEN BY THE STATE BAR COUNCIL WHICH WAS
ALSO AFFIRMED BY THE BAR COUNCIL OF ZAMBA AGAINST THE SENIOR
ADVOCATE VARDHMAAN VAJPAYEE WAS NOT ERRONEOUS.

15. It is humbly submitted before the Hon’ble Court that as per the findings of Disciplinary
Committee21 of the Bar Council, the Senior Advocate, Mr. Vardhmaan Vajpayee was found
guilty of professional misconduct and hence the action taken against him by cancelling his
license and imposing penalty was justified. Legal profession is considered as a noble
profession and the nobility of this profession cannot be preserved if a practicing lawyer
indulges himself into any profession which is meant for a common man. 22

2.1 THAT THE APPELLANT BEING AN ADVOCATE CANNOT BECOME A

MANAGING DIRECTOR OF ANY COMPANY

16. The Legislature and Judiciary have made significant contribution to uphold the dignity of
the legal profession and ensure unimpeded performance of lawyers’ duties towards the Court,
their clients, opposite parties and towards their profession as well. The profession of law is
called a noble profession. It does not remain noble merely by calling it as such unless there is
a continued, corresponding and expected performance of a noble profession. Its nobility has
to be preserved, protected and promoted.

17. The provisions of the Advocates Act and Bar Council Rules made there under inter alia
aimed at to achieve the same ought to be given effect to in their true spirit and letter to
maintain clean and efficient Bar in the country to serve cause of justice which again is noble
one.23

18. Under Section 49(1)(c) of the Advocates Act, 1961 Bar Council of Zamba is empowered
to make certain rules regarding the standard of professional conduct and etiquette to be
observed by the advocates. By virtue of this power Bar Council Zamba Rules, 1975 were laid

21
Advocates Act, 1961, (Act 25 of 1961) s. 9.
22
J.P.S. Sirohi, Professional Ethics, Accountancy for lawyers & Bench Bar Relation (Allahabad Law Agency,
Haryana, 5th ed. 2012).
23
Satish Kumar Sharma v. Bar Council of Himachal Pradesh, (2001) 2 SCC 365.

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down. Under Section VII of chapter II, the Bar Council of Zamba lays down some
restrictions on their employment while they are registered as an advocate24.

19. Rule 48 of the regulation states: “An Advocate may be Director or Chairman of the Board
of Directors of a company with or without any ordinary sitting fee, provided none of his
duties are of an executive character. An Advocate shall not be a Managing Director or a
Secretary of any company.”

20. The statute made by the legislation is empowering the Bar Council to make certain rules
regarding legal profession and so the rules so made have legislative backing and are intra
vires. The Hon’ble court itself in Dr. Haniraj L. Chulani v. Bar Council of Maharashtra &
Goa25, while dealing with the validity of Rule 1 of the Maharashtra and Goa Bar Council
Rules relating to enrolment of Advocates eligibility conditions, has observed that “legal
profession requires full time attention and would not countenance an Advocate riding two
horses or more at a time.”

21. The Bar Council of Zamba is bound to maintain the dignity and prestige of the Legal
profession. Under Rule 47, “An Advocate shall not personally engage in any business; but he
may be a sleeping partner in a firm doing business provided that, in the opinion of the
appropriate State Bar Council, the nature of the business is not inconsistent with the dignity
of the profession.”

22. So the main obligation is to keep the practitioners away from that kind of employment
which dilute the dignity of the legal profession, else, under the same provisions the Bar
Council has allowed the lawyers to become a Director or a sleeping partner in any firm which
implies non-executive authority over the other business, but strictly debars from becoming a
Managing Director.

2.2 THAT THE ARGUMENT MADE BY THE APPELLANT THAT HE IS NOT A

REGULAR MEMBER OF THE COMPANY IS ILLOGICAL AND UNCONSCIONABLE

23. Managing Director is defined under section 2(54) of Companies Act, 2013 as –“A
director who, by virtue of the articles of a company or an agreement with the company or a
resolution passed in its general meeting, or by its Board of Directors, is entrusted with
substantial powers of management of the affairs of the company and includes a director
occupying the position of managing director, by whatever name called.”

24
Advocates Act, 1961, (Act 25 of 1961), s. 2(a).
25
1996 SCC (3) 342

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24. The Managing Director is appointed26 in any company who works on formulating and
successfully implementing company policy and directing strategy towards the profitable
growth and operation of the company and have many similar objectives which are inclined
towards the growth of the company along with its management.

25. The Bar Council Rules, 1975 explicitly prohibit any lawyer to be a Managing Director
irrespective of time being devoted. So the contention made by the appellant that he was not a
regular member of the company and was devoting only 2-3 hours for its affairs stands
illogical and unreasonable.

26. The Hon’ble Apex court has itself pointed out as to what is the status of a Managing
Director in any company. A Managing Director occupies the dual capacity of being a director
as well as employee of the company. The Supreme Court observed in Employees State
Insurance Corpn. v. Apex Engineering P. Ltd.27 that “a Managing Director can be regarded
as a principal employer for the purposes of the Employees State Insurance Act, 1948”;
implies that a Managing Director is equally entitled to the security schemes as like other
employees working in any company.

27. Further in Happy Home Builders (Karnataka) P. Ltd. v. Delite Enterprises 28 it also held
that the Managing Director is not a mere servant, he is an agent of the company with capacity
to bind the company within the sphere of management authorized to him.

28. Generally, a company enters into a service contract with the Managing Director for his
appointment and terms of remuneration29. This contract is a contract of employment.
According to Rule 49 of Section VII of Chapter II, “An Advocate shall not be a full-time
salaried employee of any person, government, firm, corporation or concern, so long as he
continues to practise, and shall, on taking up any such employment, intimate the fact to the
Bar Council on whose roll his name appears, and shall thereupon cease to practice as an
Advocate so long as he continues in such employment.”

29. In Madhav M. Bhokarikar v. Ganesh M. Bhokarikar30 held that an active Director (who
exercises executive powers) of a business cannot practice as an Advocate before the Court of

26
Companies Act, 2013 (Act 18 of 2013), s. 196.
27
(1998) 1 Comp LJ 10: [19981 1 LLJ 274 (SC).
28
(1994) 13 Corpt LA 405 (Kar).
29
Companies Act, 2013 (Act 18 of 2013) s. 197.
30
2004 (2) SCR 1122.

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Law. In Jalpa Pradeep Bhai Desai v. BCI31 the High Court has held that a salaried legal
consultant cannot practise in the court of law.

30. If a person on being enrolled as an advocate takes up an employment, such a person can
by no stretch of imagination be termed as an advocate.32 Hence the position of the senior
advocate as a managing director is full-time salaried employee and is in violation of the Bar
Council Rules.

2.3 THAT THE APPELLANT WAS PROVIDED ADEQUATE OPPORTUNITY OF

HEARING BEFORE THE DISCIPLINARY COMMITTEE

31. After the complaint was filed before the Bar Coucil of Domba, the notice was issued 33 to
the senior advocate to provide proper justification on the said complaint. The most important
principle of natural justice, audi alteram partem was followed by the disciplinary committee
and was given opportunity of hearing. The Bar Council while exercising such powers acts as
a quasi-judicial body and so it was the right of the appellant to get the opportunity of being
heard.

32. Therefore, the counsel humbly submits that the decision to cancel the license of the senior
advocate Mr. Vardhmaan Vajpayee by the State Bar Council based on the findings of the
Disciplinary Committee was correct. The appellant was provided sufficient time to present
his contentions regarding the complaint and after following due process only the decision
was taken.

III. THAT THE PETITIONS FILED BY WORKERS’ UNION OF HINDUSTAN

CALIVER LIMITED AND VIDHIK JAGRUKA MANCH ALLEGING THE
UNPLEASANT CONDITIONS DOESN’T DRAW THE LIABILITY OF
RESPONDENT(S).

3.1 THAT THE GLOBAL BLACK & CASE COMPANY LIMITED BEING A MERE
SHAREHOLDER IS NOT CONCERNED WITH THE EMPLOYEES OF HCL.

33. “The Global Black & Case Company Limited”, a public Company registered in United
States of America, has started its business in Union of Zamba after getting permission from
reserve Bank of Zamba under Foreign Exchange and regulation Act, 1973. The Global Black

31
Letters Patent Appeal No. 915 of 2017, High Court of Gujarat.
32
Deepak Aggarwal v. Keshav Kaushik and Ors. 2013 (5) SCC 277.
33
Advocates Act, 1961 (Act 25 of 1961), s. 35(2).

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& Case Company Limited has just purchased a bulk of shares of Hindustan Caliver
Limited. 34 That means, Global Black & Case Company Limited is mere a shareholder of
Hindustan Caliver Limited and so the liability of the shareholders is not drawn by the acts or
omissions of company.

34. The Workers Union of HCL filed a petition considering it as a holding company of the
Hindustan Caliver Limited. As stated in the present instance the GBCC Ltd. only purchased
the bulk of shares from which it cannot be implied that it is the holding company of the HCL.

a. Factories Act, 1948 is not applicable on Global Black &Case Company Ltd.

35. Meaning of ‘factory’ under Section 2(m) of the Factories Act, 1948 talks about any
premises where particular number of workers are engaged in manufacturing process. Further,
“occupier” of a factory means a person who has ultimate control over the affairs as defined
under sec. 2(n). So the GBCC Ltd. being a mere shareholder is not the occupier as defined
under the statute and so the General duties of the occupier to ensure health, safety and
welfare under sec. 7A of the Factories Act, 1948 is not applicable on the foreign company
Global Black &Case Company Ltd.

3.2 THAT THE HINDUSTAN CALIVER LIMITED DOES NOT HOLD ANY PRIMARY
LIABILITY FOR SUCH PROBLEMS FACED BY EMPLOYEES.

36. It is most humbly submitted before the Hon’ble Court that Hindustan Caliver Limited
though being a principal employer does not hold the liability primarily for the unpleasant
environment. HCL hired workers from HTL35 on contractual basis. This relationship between
contractor36 and principal employer37 is governed by the statute called Contract Labour
(Regulation and Abolition) Act, 1947. The Hon’ble Court itself in regard to this statue said
that the act, being a beneficial piece of legislation, ought to receive the widest possible
interpretation in regard to the words used therein. 38

37. ‘Contractor’ is one who supplies contract labour to an establishment undertaking to

produce a given result for it.39 There are several provisions under the statute which prima
facie make the contractor liable for its contravention. Under section 18(b), it is the duty of the

34
Moot Proposition ¶ 5.
35
Moot Proposition ¶ 6.
36
The Contract Labour (Regulation and Abolition) Act, 1970 (Act 37 of 1970), s 2(c).
37
The Contract Labour (Regulation and Abolition) Act, 1970 (Act 37 of 1970), s. 2(g)(ii).
38
Secretary vs. Suresh (1999) 3 SCC 601.
39
State of Gujarat v. Vogue Garments (1983) 1 LLJ 225.

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contractor to provide sufficient number of and latrines and urinals as to be convenient and
accessible to contractual labors. Similarly under section 16 and 17 other amenities like
canteens and rest room are also to be provides and maintained by the contractor.

38. After going through the duties and responsibilities of the contractor it is then followed
stating principal employer liable if contactor fails to fulfil his obligations. So initially, the
liability of the HTL arises being a contractor. The respondent (HCL) is duty bound to fulfill
its obligation but according to the literal interpretation of the provision, the primarily liability
is of HTL.

3.3 THAT THE PUBLIC INTEREST LITIGATION FILED BY THE NGO, VIDHIK
JAGRUKTA MANCH BEFORE THE HIGH COURT IS FRIVOLOUS IN NATURE

39. The counsel most respectfully submits that the PIL filed by the NGO against the
unpleasant environment of the companies situated in the State of Domba does not hold the
liability of the State of Domba. The State being a respondent here is not liable for any
contraventions of the Legislations made by the companies which have their own individual
identity.

40. Government will be responsible for enforcement of those amenities where contractor fails
to provide such40. It means the primary liability is of those who are engaged in business. The
State is indeed obliged to make sure the provisions of the statute like Contract Labour
(Regulation and Abolition) Act, 1947 and Factories Act, 1948 which lays down the liability
of principal employer and contractor is properly executed.

41. For the same purpose State has appointed the Chief Inspector and the Inspector under
section 8 of the Factories Act, 1948. The Inspector within the local limits shall exercise his
powers to make examination of the premises of factories. This was well followed as in
present case the Inspector has inspected the said company41 and the Chief Inspector has
complete authority to issue orders under Section 93(4)- “The Chief Inspector shall have,
subject to the control of the State Government, power to issue orders to the owner of the
premises in respect of the carrying out the provisions of sub-section (3)” of the Factories Act,
1948 for carrying out the provisions in order to achieve the objectives of the statute.

40
People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235.
41
Moot Proposition, ¶ 6.

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PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Honorable Court may be pleased to adjudge and declare:

1. That the appeal filed by the Senior Advocate Vardhmaan Vajpayee is not
maintainable and should be dismissed.
2. The application filed by the appellant to club the petitions pending before the Hon’ble
High Court of Domba, should be rejected.

And pass any other order, direction, or relief that this Hon’ble Court may deem fit in the
interests of justice, equity and good conscience.

All of which is humbly prayed,

T 22-R 11,

Counsels for the Respondent(s).

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