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INTRA-LAW SCHOOL MOOT COMPETITION- 2019

INTRA-LAW SCHOOL MOOT COMPETITION- 2019

CODE-A1

APPEAL FILED UNDER ARTICLE-139A OF CONSTITUTION OF ZAMBA

Civil Appeal No. of 2019

VARDHMAANVAJPAYEE .................................................APPELLANT

Vs.

BAR COUNCIL OF ZAMBA& OTHERS…......................RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE OF ZAMBA

MEMORIAL FOR THE APPEALLANT

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TABLE OFCONTENTS

S.NO NAME OF THE TOPICS PAGE NO

3
1. ABBREVIATION

4
2. INDEX OF AUTHORITIES

6
3. STATEMENT OF FACTS

7
4. ISSUES FOR CONSIDERATION

8
5. STATEMENT OF JURIDICATION

9
6. SUMMARY OF ARGUMENTS

7. 10
WRITTEN SUBMISSIONS
1. WHETHER PUBLIC INTEREST LITIGATION
BY NGO IS MAINTAINABLE OR NOT?
2. WHETHER THE DESIGNATION OF
APPEALLANT AS DIRECTOR IN A FOREIGN
COMPANY WILL BE PROFESSIONAL
MISCONDUCT ORNOT?
3. WHETHER HINDUSTAN CALIVER LIMITED
IS LIABLE FOR INSECURE AND
UNPLEASANT WORKING CONDITIONS OF
WORKERS?

8. PRAYER FOR RELIEF 17

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LIST OF ABBREVIATIONS

ABBREVIATION EXPANSIONS
S

AIR ALL INDIA REPORTER

ART ARTICLE

ED EDITION

GOVT. GOVERNMENT

HON’BLE HONOURABLE

PIL PUBLIC INTEREST LITIGATION

SEC SECTION

SC SUPREME COURT

SCC SUPREME COURT CASES

QB QUEENS BENCH

V. VERSUS

WP WRIT PETITION
0
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INDEX OF AUTHORITIES

NAME OF THE CASE PAGE NO

S.NO
1.
Noratanmal Chouraria v.
M.R.Murli & Others [(2004)] 5
SCC689

2.
Delhi Electricity Supply
Undertaking v. Management AIR
1974 3SC
3.
Lonrho Ltd v. Shell Petroleum Co.
Ltd 1980QB
4.
S. P. Gupta v. Union of India AIR
1982 SC149
5.
Virender Gaur & Others v. State of
Haryana & Others 995) 2 SCC577
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S.NO NAME OF THE STATUE

1. The Constitution of India
2. The Legal Practitioners Act,1961
3. The Factories Act,1948
4. The Industrial Disputes Act,1947
5. The Bar Council of Zamba Rules
6. Foreign Exchange and Regulation At, 1973

S.NO Name of the books

1. Legal Ethics ACCOUNTABILITY FOR LAWYERS AND BENCH-BAR

RELATIONS, Dr. Kailash Rai’s (11th ed,2015)

2. Dr. J.N Pandey’s, Constitution Law of India (53th ed., 2016)

S.NO. WEB RESOURCES

1. www.westlaw.india.com (WEST LAW INDIA)

2. www.manupatrafast.com (MANUPATRA)

3. www.judis.nic.in (SUPREME COURT OF INDIA OFFICIAL)

4. www.jstor.org (JSTOR)

5. www.scconline.com (SCC ONLINE)

MEMORIAL FOR THE APPELLANT

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STATEMENT OF FACTS

BACKGROUND
S
The appellant is a senior advocate, whose name is entered in the Bar Council of Domba and is also
a shareholder in Foreign Company, “Global Black & Case Company Limited”.
After taking permission from Reserve Bank of Zamba under Foreign Exchange
andRegulationAct1973,GlobalBlack&CaseCompanyLimitedestablisheditsbranchoffice in
Hastinaqula, a famous city of Domba and appointed appellant as director under its own Article of
Association.
Global Black & Case Company Limited was engaged in commercial and non-commercial activities
including legal services.
Global Black & Case Company Limited purchased bulk proportion of share in Hindustan Caliver
Limited which was engaged in manufacturing process and used to hire most of workers from
contractor company Hindustan Teleliver Limited, whose board of directors consists of five directors
out of which three were appointed by Hindustan Caliver Limited.

MAIN CONTENTION

The Workers Union of Hindustan Caliver Limited raised dispute before tribunal, which rejected
their plea and ultimately they filed petition before High Court against Hindustan Caliver Limited
and Global Black & Case Company Limited, pointing it as a holding company.
One NGO,‘Vidhik Jakrukta Manch’ also filed the Public Interest Litigation before the Hon’ble
High Court of Domba on the ground of insecure and unpleasant environment of the company is
violative of Factories Act ,1948 and also of Article21of Constitution of Zamba, which was clubbed
by the High Court along with the petition filed by the WorkersUnion.
In a meantime, appellant was held liable for professional misconduct by Bar Council of Domba on
cmplaint made by his fellow with ill motives and his license was cancelled and fine of Rs. 5000 was
imposed and appeal was preferred to the Bar Council of Zamba, who maintained the decision of the
Bar Council of Domba and ultimately appeal was madebefore the Hon’ble Supreme Court of
Zamba.

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MEMORIAL FOR THE APPELLANT

S
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ISSUES FOR CONSIDERATION

I. WHETHER PUBLIC INTEREST LITIGATION FILED BY NGO IS

MAINTAINABLE OR NOT?
II. WHETHER THE DESIGNATION OF APPEALLANT AS DIRECTOR IN A FOREIGN
COMPANY WILL BE A PROFESSIONAL MISCONDUCT ORNOT?
III. WHETHER HINDUSTAN CALIVER LIMITED IS LIABLE FOR INSECURE
AND UNPLEASANT WORKING CONDITIONS OF WORKERS
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STATEMENT OF JURISDICTION

The petitioner herein has invoked the plenary jurisdiction of this Hon’ble Court under Article 226
of the Constitution of India, 1950. Article 226 read as:
Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the
territoriesinrelationtowhichitexercisejurisdiction,toissuetoanypersonorauthority,including
inappropriatecases,anyGovernment,withinthoseterritoriesdirections,ordersorwrits,including writs
in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them,
for the enforcement of any of the rights conferred by Part III and for any otherpurpose
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in relation to
the territories within which the cause of action, wholly or in part, arises for the exercise of such
power, notwithstanding that the seat of such Government or authority or the residence of such
person is not within thoseterritories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in
anyothermanner,ismadeon,orinanyproceedingsrelatingto,apetitionunderclause(1),without
(a) furnishing to such party copies of such petition and all documents in support of the plea for
such interim order ; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for
the vacation of such order and furnishes a copy of such application to the party in whose favour
such order has been made or the counsel of such party, the High Court shall dispose of the
application within a period of two weeks from the date on which it is received or from the date on
which the copy of such application is so furnished, whichever is later, or where the High Court is
closed on the last day of that period, before the expiry of the next day afterwards on which the High
Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of
that period, or, as the case may be, the expiry of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of

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MEMORIAL FOR THE APPEALLANT

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SUMMARY OF ARGUMENTS

I. WHETHER PUBLIC INTEREST LITIGATION BY NGO IMAINTAINABLE

OR NOT?
Since NGO satisfies the following requirements of filling Public Interest Litigation.
1. It can be filed against state or public authority.
2. There should be involved public interest and not by private gain.
3. It should not be filed with ill motive.

Therefore the Public Interest Litigation filed is clearly maintainable.

II. WHETHER THE DESIGNATION OF APPEALLANT AS DIRECTOR IN A
FOREIGN COMPANY WILL BE PROFESSIONAL MISCONDUCT ORNOT?
1) As stated under Rule 48 and looking into the fact of the case the appellant was appointed as
Managing Director under the Article of Association of Global Black & Case Company Limited, but
he was not performing any executive function, since he was engaged in legal services.
2) Further considering Rule 49 of Bar Council Rules in the light of facts of the case it is evident
that since the appellant is devoting only 2 to 3 hours for the affairs of the company so he is not the
full time salaried employee.
Since Rule 48 and Rule 49 of Bar Council Rules are duly complied by the appellant therefore
it can be said that appellant is not guilty of professional misconduct.
I. WHETHER HINDUSTAN CALIVER LIMITED IS LIABLE FOR INSECURE
AND UNPLEASANT WORKING CONDITIONS OF WORKERS?
In case of conflict between interest of foreign company (holding) and domestic company
(subsidiary) the interest of foreign company will prevail, as it enjoys great autonomy in the country.
Therefore Global Black & Case Company Limited should not be held liable

MEMORIAL FOR THE APPELLANT

WRITTEN SUBMISSION
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I. WHETHER PUBLIC INTEREST LITIGATION BY NGO IS MAINTAINABLE

OR NOT?
In this case a NGO “Vidhik Jakrukta Manch” has filed a Public Interest Litigation before
the High Court of Domba under Article 226 on ground of violations of Factories Act 1948and
Articles 21 of the Constitution of Zamba, against the companies carrying on their business in
Domba.
Since NGO satisfies the following requirements of filling Public Interest Litigation.
1. It can be filed against state or public authority.
2. There should be involved public interest and not by private gain.
3. It should not be filed with ill motive.
Therefore the Public Interest Litigation filed is clearly maintainable as it involves public interest
and it is duty of state and public authority to provide secure and pleasant environment. Since there
is no requirement of locus standi as it is totally removed by the Supreme Court. Therefore anyone
can file Public Interest Litigation satisfying the above

3.1980 QB

MEMORIAL FOR THE APPELLANT

requirements. S. P. Gupta v. Union of India4. In this case P. N. Bhagwati held that articulated the
concept of Public Interest Litigation as follows “where is legal injury or wrong is caused to a person
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or to a determinate class of persons by reason of violation of any constitutional or legal rights or

any burden is imposed in contravention of any constitutional or legal provision or without authority
of law or any such legal wrong or legal injury or illegal burden is threatened and such person or
determinate class of persons by reason of poverty, helplessness or disability or socially or
economically disadvantaged position unable to to approach the court for relief, any member of
public can maintain an application for an appropriate direction order writ in the High Court under
Article 226 and in case any breach of fundamental rights of such persons or determinate class of
persons. In this court under Article 32 seeking Judicial redress for the legal wrong or legal injury
caused to such person or determinate class of persons.
The rules of locus standi have been relaxed and a person acting bona-fide and having sufficient
interest in the proceeding of Public Interest Litigation will alone have a locus standi and can
approach the court to wipe out violation of fundamental rights and genuine infraction of statutory
provisions but not for personal gain or private profit or political motive or any oblique consideration.
The contention raised by NGO Vidhik Jakrukta Manch under Article 226, Hindustan Caliver
Limited is violating Factories Act, 1948 is true.
Since Hindustan Caliver Limited comes within the purview of definition of factory is defined under
Section 2(m) of the Factories Act, 1948.
“Factory” means any premises including the precincts thereof
(i) whereon ten or more workers are working, or were working on any day of the preceding twelve
months, and in any part of which a manufacturing process is being carried on with the aid of power,
or is ordinarily so carried on ,or
(ii) whereon twenty or more workers are working, or were working on any day of the preceding
twelve months, and in any part of which a manufacturing process is being carried on without the
aid of power, or is ordinarily so carried on.
Since the Hindustan Caliver Limited satisfied all the contents of definition of factory as it involves
more than 200 Workers and engagement is for manufacturing process, therefore it is

4AIR 1982 SC 149

MEMORIAL FOR THE APPELLANT

a factory under the Factories Act 1948. Therefore the Public Interest Litigation filed by NGO
against companies functioning at Domba also including Hindustan Caliver Limitation.
Therefore it should be directed to provide proper environment to its Workers. As the same was
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found by Inspector exercising its power under Factories Act 1948 under section9.
The ground for filing Public Interest Litigation, that it violates the fundamental rights as provided
under Article 21 of the constitution of Zamba is also true.
In the case of Virender Gaur & Others v. State of Haryana &Others5
Environment is polycentric and multi facet problem effecting the human existence. Man has the
fundamental rights to freedom, equality and adequate condition of life.
Article 48A in Part IV (Directive Principles of State Policy) brought by constitution 42nd
Amendment Act 1976 enjoying that “Protection and improvement of environment and safeguarding
of forests and wild life The State shall endeavour to protect and improve the environment and to
safeguard the forests and wild life of the country”.
Article 47 of the Constitution of Zamba further imposes the State to improve public health as its
primary duty.
Article 51 A (g) of the Constitution of Zamba imposes the duty of every citizen to protect and
improve the natural environment including forests, lakes, rivers and wildlife, and to have
compassion for living creatures.
The word ‘environment’ is of broad spectrum which brings within its ambit “hygienic atmosphere
and ecological balances.”
It is therefore not only the duty of State but also the duty of every citizen to maintenance a hygienic
environment. The state in particular has duty in that behalf and to shed its extravagant unbridled
Sovereign power to forge in its policy to maintain ecological balance and hygienic environment.
Therefore the Public Interest Litigation filed by NGO against the State is clearly maintainable
because of the above part of judgement. Therefore insecure and unpleasant environment as ground
for filing Public Interest Litigation, as it violates Article 21 of Constitution is maintainable.
Article 21 protects right to life as fundamental rights enjoying of life and its attainment including
their right to life with human dignity encompasses within its ambit, the protection

5(1995) 2 SCC 577

MEMORIAL FOR THE APPELLANT

and presumption of environment, ecological balance free from Pollution of Air and Water,
sanitation without which life cannot be enjoyed.
Therefore the insecure and unpleasant environment is clearly violative of Article 21 of the
Constitution. Therefore hygienic environment is an integral facet of right to healthy life and would
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be impossible to live with human dignity without a humane and healthy environment. Therefore
filing of Public Interest Litigation by NGO on ground of violation of the Constitution is also
maintainable.
II. WHETHER THE DESIGNATION OF APPEALLANT AS DIRECTOR IN A
FOREIGN COMPANY WILL BE PROFESSIONAL MISCONDUCT OR NOT?

The appellant (Vardhmaan Vajpayee) is designated as Senior Advocate and his name is
entered in the state roll of Domba.
The appellant is also shareholder in the foreign company which is registered in the United
States of America named ‘Global black & Case Company Limited’ and having registered
office in New York .
As there is no restriction provided under Advocate Act 1961, that an Advocate cannot be a
shareholder in any company.
The company ‘Global black & Case Company Limited’ after seeking permission from the
Reserve Bank of Zamba and under Foreign Exchange and Regulation Act,1973on fly in
and fly out basis, established its branch office permanently at Hastinaqula in the state of
Domba.
After that, the company appointed the appellant under its own Article of Association, as Managing
Director. The Global Company Limited black & Case was engaged in diverse activities as it was
performing commercial and non-commercial and was also providing legal services.
Since professional misconduct is not defined in Legal Practitioners Act, 1961 or any other law for
the time being in force. So we have to take recourse to judicial pronouncements.
In many cases such as Noratanmal Chouraria v. M.R.Murli & Others1 the judiciary has pointed
out an Act comes under the category of professional misconduct, if it is in conflict with the
profession provided by advocate or it is derogatory to the legal profession.
1[(2004)] 5 SCC 689

MEMORIAL FOR THE APPELLANT

Therefore the court is under duty to examine that whether the Act which has been complaint as
professional misconduct is truly in conflict with the legal profession which is considered as noble
profession.
In this case the Appellant was designated as Managing Director in Global Company Limited black
& Case, which was also engaged in providing legal services, therefore the appointment of Appellant
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as Managing Director and services provided by him, is not conflict with legal profession.
As it is given under Bar Council of India Rules, Rule 48 states that “An advocate may be Director
or Chairman of the Board of Directors of a Company with or without any ordinarily 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.” In addition to it, it is provided under Rule 49 that “An
advocate shall not be a full-time salaried employee of any person, government, firm, corporation or
concern, so long as he continues to practice.”
Therefore, though the Appellant was appointed as Managing Director under the Article of
Association of Global Black & Case Company Limited, but he was not performing any executive
function, since he was engaged in legal services.
Further, he was just devoting 2 to 3 hours for rendering his services to Global Black & Case
Company Limited, and it is provided under rule 49 that an Advocate cannot be full time salaried
employee.
Therefore there is an implication of the fact that an Advocate can be part time salaried employee.
Therefore the rule 48 should not be read or considered separately or in isolation but it should be
read in the light of rule 49 of rules of Bar Council.
Therefore there is no restriction that an Advocate can be part time Managing Director of any
Company.
The facts of the case clearly shows that the complaint was filed with ill motive of Appellant’ s
fellow and there is no any type of professional misconduct and the same was filed to harass the
Appellant and to defame him.

III. WHETHER HINDUSTAN CALIVER LIMITED IS LIABLE FOR INSECURE

AND UNPLEASANT WORKING CONDITIONS OF WORKERS?

Another contention raised by the Workers Union against the Hindustan Caliver Limited which is
registered under the Companies Act, 1956. The Hindustan Caliver Limited hired most of the
workers out of 200 from another Contractor Company Hindustan Teleliver Limited for
manufacturing process. As the company was continuously rejecting their demand for better security
and sanitary services therefore the Workers Union raised industrial dispute before the tribunal.
The tribunal rejected their plea and they filed petition before High Court under Article 226, which
was pending before High Court and clubbed with Public Interest Litigation filed by NGO – “Vidhik
Jakrukta Manch”, which was also pending.
It is clearly not a case of Industrial dispute, because it does not come within the purview of Industrial
dispute as defined under Section 2(k) of the Industrial Dispute s Act 1947.
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It defines that Industrial Dispute means “any dispute of difference between employers and
employers or between employers and workmen; or between workmen and workmen, which is
connected with the employment or non-employment or the terms of employment or with the
conditions of labour of any person.”
Therefore the dispute regarding violation of Factories Act, 1948 as ascertained by the Inspector
appointed under the Factories Act. As it was found by Inspector that environment of Factory was
not up to the mark.
Therefore the company Hindustan Caliver Limited is under duty to improve the environment of the
company up to the mark, so that it can provide appropriate environment to the Workers to work.
Therefore the company is liable to satisfy or fulfill the demand raised by Workers Union for better
security and sanitary services. As it is the fundamental right to live in clean environment therefore
the company should be directed to improve its environment. The Global black as registered under
U. S. A. and Hindustan Caliver Limited under Companies Act 1956 are 2 separate entities therefore
Hindustan Caliver Limited has the sole responsibility to satisfy the demand of Workers Union of
providing secure pleasant environment. The Company Hindustan Caliver Limited is factory because
it satisfies the ingredients as laid down by the Supreme Court in the case of Delhi Electricity
Supply Undertaking v. Management2. It was held that for any premise to be declared as factory
the following conditions must be satisfied.
a. A manufacturing process must be carried on in any part of the premise of establishment.
b. Where the manufacturing process is carried on with the aid of power, ten or more Workers
must be working and where manufacturing process is carried on without the aid of power,
20 or more Workers must be working in that establishment, therefore there is no doubt that
company is factory within the meaning of the Factories Act 1948and there is violation of
Factories Act1948.

2 .AIR 1974 3 SC

Therefore Company is under duty to improve the condition of premises and the same should be
directed by the Court. In this case Global Black & Case Company Limited cannot be made liable
though it is considered as holding company.
As it was provided in the case of Lonrho Ltd v. shell petroleum Co. Ltd 3that these South African
and Rhodesian Companies were very much self-controlled their directors were local directors -
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running their own show, operating it with comparatively little interference from London, they were
subjected to, of course, toall local lanes and ordinances. That seems to be different position from
the concept of a one man company, or a 100% with various subsidiaries. It is important to realize
that subsidiaries of multinational companies have a great deal of autonomy in the countries
concerned.
Therefore the gist of the case is that in case of conflict between interest of foreign company
(holding) and domestic company (subsidiary) the interest of foreign company will prevail, as it
enjoys great autonomy in the country.
Therefore Global Black & Case Company Limited should not be held liable, but Hindustan
Caliver Limited should be liable for insecure and unpleasant environment and it should be directed
to improve it and also to satisfy the genuine demands of the Workers Union.

MEMORIAL FOR THE APPELLANT

PRAYER FOR RELIEF

1. Bar Council of Zamba should revoke the cancellation of license because it hampers the appellant’s right to practice.
2. Since cancellation of license as well as imposition of fine of Rs.5000 is grave and serious
punishment, therefore the relief must be granted to the appellant.

And any other relief that the honorable Court may deem fit in the interests of Justice, Equity
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and Good conscience.

All of which is humbly submitted

MEMORIAL FOR THE APPELLANT

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