NATIONAL MOOT COURT COMPETITION, 2018

TC-

PROSECUTION

Before

THE HONORABLE SUPREME COURT OF CHELSEA

2017

TRIAL UNDER SECTION 139-A (1) r/w ORDER XL OF SUPREME COURT RULES,
2013

IN

THE MATTER OF:

REBECCA SALOMAN- - - - - - - - - - - - - - - - - - - - - - - PETITIONER 1

&

HAMILTON SMITH- - - - - - - - - - - - - - - - - - - - - - - - -PETITIONER 2

V.

TRUMPER’S CO-OPERATIVE BANK - - - - - - - - - - - - RESPONDANT

WRITTEN SUBMISSION

-MEMORIAL ON BEHALF OF PETITIONER- Page 1

 NATIONAL MOOT COURT COMPETITION, 2018

TABLE OF CONTENTS

1. INDEX OF AUTHORITIES - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 03- 05

2. STATEMENT OF JURISDICTION - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 06

3. STATEMENT OF FACTS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 07- 08

4. ISSUES RAISED- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -09

5. SUMMARY OF ARGUMENTS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 10

6. ARGUMENTS ADVANCED - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 11- 22

I. WHETHER TRUMPER’S CO-OPERATIVE BANK HAS VOILATED RIGHT TO

PRIVACY OF THIER EMPLOYEES OR NOT?

A. THE OBLIGATION OF A STATE TO ENFORCE FUNDAMENTAL RIGHTS.

B. CO-OPERATIVE BANKS ARE UNDER THE AMBIT OF STATE AS DEFINED IN ARTICLE 12 OF

THE CONSTITUTION.

C. PHONE TAPPING AND EMAIL HACKING INFRINGES RIGHT TO PRIVACY.

II. WHETHER THE TERMINATION OF MR. HAMILTON SMITH AND MS. REBECCA
SALOMAN ARBITRARY IN NATURE?

A.VOILATION OF FUNDAMENTAL RIGHTS UNDER ARTICLE 14 AND ARTICLE 21.

B. HAMILTON IS NOT LIABLE UNDER SECTION 420 OF IPC.

III. THE EMPLOYMENT CONTRACT WAS AGAINST THE PUBLIC POLICY.

8. PRAYER - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 23

-MEMORIAL ON BEHALF OF PETITIONER- Page 2

 NATIONAL MOOT COURT COMPETITION, 2018

INDEX OF AUTHORITIES

CASES REFERRED:-

SUPREME COURT CASES:-

1. Delhi Transport Corporation vs. D.T.C. Mazdoor Congress and others, (1991) 1 SLJ 56
2. Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461
3. State of West Bengal and Ors. vs. The Committee for Protection of Democratic Rights,
West Bengal and Ors., AIR 2010 SC 1476
4. State of Kerala and Anr. v. N.M. Thomas and Anr., AIR 1976 SC 490
5. M.C. Mehta and Anr. v. Union of India and Ors , AIR 1987 SC 1086
6. Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487
7. Reserve Bank of India and Ors. v. Jayantilal N. Mistry and Ors., AIR 2016 SC 1
8. State of M.P. and Ors. v. Sanjay Nagayach and Ors., AIR 2013 SC 1921
9. Rajasthan State Electricity Board, Jaipur v. Mohan Lal, AIR 1967 SC 1857
10. Central Inland Water Corpn. v. Brojo, AIR 1986 SC 1571
11. Manmohan v. Commr. U.T. Chandigarh, AIR 1985 SC 364
12. Sukhdev v. Bhagatram, AIR 1975 SC 1331
13. Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461
14. R. Rajagopal and Ors. v. State of Tamil Nadu and Ors., AIR 1995 SC 264
15. People's Union of Civil Liberties (PUCL) v. Union of India (UOI) and Ors., AIR 1997 SC
568
16. Suresh Chandra Nanhorya v. Rajendra Rajak and Others, (2006) 7 SCC 800
17. A. K. Kraipak v. Union of India, 1969 2 SCC 262
18. Basudeo Tiwari v. Sido Kanhu University & others, (1998) 8 SCC 194
19. Smt. Maneka Gandhi v. Union of India, AIR 1978 SC 597
20. Tulsi Ram v. State of Uttar Pradesh , AIR 1963 SC 666
21. Hari Sao v. State of Bihar, AIR1970 SC 843
22. LIC of India v. Consumer Education and Research Centre , (1995) 5 SCC 482
23. Mrs. Maneka Gandhi vs. Union of India (UOI) and Anr, AIR 1978 SC 597
24. SrilekhaVidyarthi v. State of UP, AIR 1991 SC 537
25. S.J. Jaisinghania v. Union of India and Ors., AIR 1967 SC 1427

-MEMORIAL ON BEHALF OF PETITIONER- Page 3

 NATIONAL MOOT COURT COMPETITION, 2018

26. Balmer Lawrie and Co. Ltd. and Ors. v. Partha Sarathi Sen Roy and Ors, (2013) 8 SCC
345
27. Sharma Transport v. Government of A.P , (2002) 2 SCC 188
28. V.T. Khanzode v. Reserve Bank of India, AIR 1982 SC 917

HIGH COURT CASES:-

1. I.R. Coelho (Dead) by L.Rs. v. State of Tamil Nadu and Ors., (2007) 1 ALLMR 944
2. Ved Prakash Malhotra v. State Bank of India, (1974) 1 ILR Delhi 660
3. J. C. Sachdev v. Reserve Bank of India, (1973) IILLJ 204 Del
4. Kishan Lal Mantumal Vs. State of Rajasthan, (1988) WLN (UC) 479
5. Narayan v. Maharashtra State Co-operative Land Development Bank Ltd., 1991 1 BCR
469
6. K.L.D. Nagasree vs. Government of India, represented by its Secretary, Ministry of Home
Affairs and Ors., AIR 2007 AP 102
7. Jan Chowkidar (People's Watch) through Dr. Suman Lal, v. The State of Bihar through the
Chief Secretary and Ors, (2009) IVLLJ 890 Pat
8. P. Seshaditya Murthy and Ors. v. District Medical and Health Officer, Guntur and Ors
(1988) IILLJ 397 AP
9. Rita Mishra and Ors. etc. etc. vs. Director, Primary Education, Bihar and Ors. etc, AIR
1988 Pat 26
10. S.L. Soni vs. Rajasthan State Mineral Development Corporation Ltd., 1985 RLW 272
11. Mrs. Vidya Stokes v. State of Himachal Pradesh and Anr, 1994 CriLJ 1833
12. Hotel Palace v. State of J&K and Ors, 2012 JKJ 3 591
13. Pennar Delta Ayacutdars Association and others vs. Government of Andhra Pradesh and
others, 2000 (3) ALD 182

INTERNATIONAL CASES:-
1. King-Emperor v. Benoarilal (1944) L.R. 72.1. A. 57
2. Kanda v. Government of Malaya [1962] AC 322; [1962] 2 WLR 1153, PC

-MEMORIAL ON BEHALF OF PETITIONER- Page 4

 NATIONAL MOOT COURT COMPETITION, 2018

STATUTES AND OTHER AUTHORITIES:-

1. Indian Penal Code, 1860

2. The Constitution of India, 1950

3. The Information Technology Act, 2000

4. Indian Telegraph Act, 1885

JOURNALS REFERRED:-

1. All India Reporters

2. Supreme Court Cases

3. Criminal Law Journal

BOOKS REFERRED:-

1. Dr. K. I. Vibhute, P S A. Pillai Criminal Law (11th Ed., Lexis Nexis Butterworths
Wadhwa, Nagpur)
2. Mahendra Pal Singh, V.N. Shukla’s Constitution of India (12th Ed., Eastern Book
Company, lucknow)
3. Apar Gupta, Commentary on Information Technology Act - Along with Rules,
Regulations, Orders, Guidelines, Reports and Policy Documents ( 3rd Ed., Lexis Nexis,
Gurgaon)

DATABASE REFERRED:-

1. http://www.scconline.com (last visited on 16th March, 2018).

2. http://www.manupatra.com (last visited on 16th March, 2018).

3. http://www.westlaw.org (last visited on 16th March, 2018).

4. http://www.indiankanoon.com (last visited on 16th March, 2018).

-MEMORIAL ON BEHALF OF PETITIONER- Page 5

 NATIONAL MOOT COURT COMPETITION, 2018

STATEMENT OF JURISDICTION

The Hon’ble Court has jurisdiction to try the instant matter under Section 139-A (1)1 read
with Order XL of Supreme Court Rules, 2013.

The present memorandum sets forth the facts, contentions and arguments.

1
The Constitution of India, 1950

-MEMORIAL ON BEHALF OF PETITIONER- Page 6

 NATIONAL MOOT COURT COMPETITION, 2018

STATEMENT OF FACTS

For the sake of brevity and convenience of the Hon`ble Court the facts of the present case are
summarized as follows:

APPOINTMENT OF EMPLOYEE

On 25th May, 2017, Ms. Rebecca Salomon (hereinafter referred to as the ‘Petitioner’) was
employed by the Trumper’s Co-operative Bank (hereinafter referred to as the ‘Respondent
no. 1’). The first customer that has been given to Ms. Salomon was Mr. Daniel (hereinafter
referred to as the ‘Respondent no. 2’) who was one of the oldest customers of Trumper’s Co-
operative Bank. Before Mrs. Salomon, Daniel’s Bank A/C has been handled by Mrs.
Trentham, another employee of Trumper’s for last 3 years.

RELEVANT INCIDENT

In the middle of August, 2017, Mr. Daniel noticed some transactions from his bank a/c which
had not been instructed by him. However, he did not pay much attention since the amount of
transfer was meagre in all occasions. In order to know more about the transactions Mr. Daniel
updated his bank passbook on 1st October, 2017 and found that in all those occasions the
transaction had been made for online shopping.

HACKING AND TAPPING OF PHONE

On 2nd October, 2017, Mr. Daniel disclosed this fact to his friend Mr. Percy, who is the
Manager of the bank. Mr. Percy then informed about it to Mr. Charlie Trumper, The owner of
the bank. Mr. Daniel in a meeting with Mr. Percy & Mr. Charlie informed them that he was
suspecting the petitioner as she was then handling his a/c. Therefore, Mr. Percy and Mr.
Charlie both decided to keep an eye on the petitioner. In that process her cell phone number
was tapped and her email address had also been hacked. However, nothing was found.

INVESTIGATION BY POLICE

The petitioner noticed some strange activities in her cell phone and was confirmed by the
nearby shopkeeper that her cell phone had been tapped. Being scared, the petitioner filed a
complaint in Chelsea police station and after due investigation, Police had found out that Mr.
Percy and Mr. Charlie had taken this step in order to keep an eye on her.

-MEMORIAL ON BEHALF OF PETITIONER- Page 7

 NATIONAL MOOT COURT COMPETITION, 2018

REVEALATION OF TRUTH & TERMINATION OF EMPLOYMENT CONTRACT

Mr. Hamilton Smith (hereinafter referred to as the ‘Petitioner No. 2’) was another employee
of Trumper’s Co-operative Bank who was having strikingly same features as Ms. Salomon
which compels one to take both of them as siblings. On being asked both Mr. Smith and Ms.
Salomon used to deny being siblings. However, the hacking of mail Id discloses the fact that
Mr. Smith was the uterine brother of Ms. Salomon which was basically against the policy of
the bank that “The bank does not employ two persons from same family or those who are
related to each other by blood”. Therefore, on 15th of November, 2017, the Trumper’s
rescinds the employment contract with both Mr. Hamilton Smith and Ms. Rebecca Salomon.

PETITIONS FILLED AGAINST THE BANK

On 20th November, 2017, Ms. Rebecca Saloman filled a Writ Petition in the Chelsea High
Court contending that tapping of her cell phone and the hacking of her mail-id amounted to
the violation of Right to Privacy of the petitioner. Meanwhile, on 17th November, 2017, Mr.
Hamilton Smith, aggrieved by the decision of Trumper’s, filed a civil suit before the Civil
court of Chelsea stating that Trumper’s decision was arbitrary and he has not been given any
chance to defend his position but the decision was given in the favour of Trumper’s and the
court observed that not disclosing important details to the employer also amounts to cheating
under Section 420 of Indian penal Code, 1860. Aggrieved by the decision of the lower court
Mr. Smith has filed a Writ petition before the High Court of Chelsea on 23rd of December,
2017. Considering the issues the Supreme Court decides to club both the petitions under the
Supreme Court Rules, 2013.

FINAL ARGUMENTS

The present case is now before the Hon`ble Supreme Court of Chelsea for the Final
Arguments.

-MEMORIAL ON BEHALF OF PETITIONER- Page 8

 NATIONAL MOOT COURT COMPETITION, 2018

ISSUES RAISED

The following issues are presented before this Hon’ble court for adjudication in the instant
matter:

I. WHETHER TRUMPER’S CO-OPERATIVE BANK HAS VOILATED

RIGHT TO PRIVACY OF THIER EMPLOYEES OR NOT?

II. WHETHER THE TERMINATION OF MR. HAMILTON SMITH AND

MS. REBECCA SALOMAN ARBITRARY IN NATURE?

III. THE EMPLOYMENT CONTRACT WAS AGAINST THE PUBLIC

POLICY.

-MEMORIAL ON BEHALF OF PETITIONER- Page 9

 NATIONAL MOOT COURT COMPETITION, 2018

SUMMARY OF ARGUMENTS

I. WHETHER TRUMPER’S CO-OPERATIVE BANK HAS VOILATED RIGHT TO

PRIVACY OF THIER EMPLOYEES OR NOT?
It is humbly submitted before the Hon’ble Supreme Court that the respondent, Trumper’s
Co- Operative Bank has violated the right to privacy of their employees which is given
under Constitution of India by engaging in the activities such as tapping of the mobile
phones and hacking their E-mail account without their permission and against their will.
Therefore, violating the fundamental right given under Article 21 of the Indian
Constitution.

II. WHETHER THE TERMINATION OF MR. HAMILTON SMITH AND MS.

REBECCA SALOMAN ARBITRARY IN NATURE?
It is humbly submitted before the Hon’ble Supreme Court that the termination of Mr.
Hamilton Smith and Ms. Rebecca Saloman was arbitrary in nature because the policy of
bank that “The bank does not employ two persons from same family or those who are
related to each other by blood” is unjust, unreasonable and against the public policy as
the policy is against article 14 and also no chance was given to Mr. Hamilton Smith to
defend himself which gives rise to the concept of “Audi Altrem Partem” violating the
rule of natural justice.

III. THE EMPLOYMENT CONTRACT WAS AGAINST THE PUBLIC POLICY.

It is humbly submitted before the Hon’ble Supreme Court that the employment contract
between the Trumper’s Co-Operative Bank (Employer) and Ms. Rebecca Saloman &
Hamilton Smith (Employees) is merely against the standard form of contract because it is
carrying merely the reasonable and vague terms and conditions of not employing people
from the same family and therefore, it is against the public policy.

-MEMORIAL ON BEHALF OF PETITIONER- Page 10

 NATIONAL MOOT COURT COMPETITION, 2018

ARGUMENT ADVANCED

I. Whether Trumper’s co-operative bank has violated right to privacy of their employees
or not?
1. The counsel on behalf of petitioners contends that right to privacy is a fundamental right
and The Trumper’s Bank have violated the said right of its employees by engaging in
activities that gave them direct access into their privacy without the permission and
acknowledgment of the individual. The counsel has three contentions, [A] that the states
have an obligation to enforce fundamental rights, [B] a co-operative bank comes in the
ambit of state as defined in the Indian Constitution, [C] the act of phone tapping and
hacking to gain access to one’s private information is a violation of right to privacy.

[A] THE OBLIGATION OF A STATE TO ENFORCE FUNDAMENTAL

RIGHTS

2. The counsel submits that in this Hon’ble Supreme Court, Justice P.N. Bhagwati
emphasised on the argument that the fundamental rights represent the basic values
cherished by the people of this country since the Vedic times and they are calculated to
protect the dignity of the individual and create conditions in which every human being
can develop his personality to the fullest extent.2Fundamental rights are necessary means
to develop one's own personality and to carve out one's own life in the manner one likes
best, subject to reasonable restrictions imposed in the paramount interest of the society
and to a just, fair and reasonable procedure.3The present case is of the importance as the
respondents have alleged in activities that have threaten the very objective of the state
towards its people.
3. The counsel pleads that the object of the Fundamental Rights is to foster the social
revolution by creating a society egalitarian to the extent that all citizens are to be equally
free from coercion or restriction by the State. The counsel further emphasis on the
importance of fundamental rights laid down in the landmark case of Keshavnanda
Bharti v. State of Kerala.4 The development of fundamental rights has been such that it
no longer involves the interpretation of rights as isolated protections which directly arise
but they collectively form a comprehensive test against the arbitrary exercise of state

2
Smt. Maneka Gandhi v. Union of India, AIR 1978 SC 597 (India).
3
Delhi Transport Corporation vs. D.T.C. Mazdoor Congress and others, AIR 1991 SC 101 (India).
4
Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461 (India).

-MEMORIAL ON BEHALF OF PETITIONER- Page 11

 NATIONAL MOOT COURT COMPETITION, 2018

power in any area that occurs as an inevitable consequence.5 Any law that abrogates or
abridges such rights would be violative of the basic structure doctrine.6The Fundamental
Rights are the means through which one can reach the top of the edifice.7 The counsel on
behalf of the petitioners contends that it is necessary to recognise the importance of the
definition of state and whether the defendant in the present case falls under the definition
or not. The counsel submits that according to the India Constitution, state is defined
under article 12 as:

In this part, unless the context otherwise requires, “The state” includes the Government
and Parliament of India and the Government and the Legislature or each of the states
and all local or other authorities within the territory of India or under the control of the
Government of India.

4. The counsel further submits that in the case of M.C. Mehta and Anr. v. Union of India
and Ors.8, the court said that it is a constitutional obligation on this Court to protect the
fundamental rights of the people. For protection against unreasonable invasion of
Fundamental Rights by the legislature, power has been given to the judiciary to examine
and interpret a law affecting or interfering with Fundamental Rights and pronounce upon
its reasonableness. The Judiciary is given the power to scrutinize every piece of
legislation and determine whether it interfered with guaranteed Fundamental Rights. 9 In
lieu of the power and obligation of the court the counsel has approached this Hon’ble
court as Bank in the pretext of the case here falls under the ambit of state which is the
basis of the second contention presented by the counsel.

[B] CO-OPERATIVE BANKS ARE UNDER THE AMBIT OF STATE AS

DEFINED IN ARTICLE 12 OF THE CONSTITUTION.

5. The counsel on behalf of the petitioners pleads that in the case of Ajay Hasia v. Khalid
10
Mujib Sehravardi , The Supreme Court laid down the following tests to adjudge
whether a body is an instrumentality or not”:

5
I.R. Coelho (Dead) by L.Rs. v. State of Tamil Nadu and Ors. (2007) 1 ALLMR 944 (India).
6
State of West Bengal and Ors. vs. The Committee for Protection of Democratic Rights, West Bengal and Ors.,
AIR 2010 SC 1476 (India).
7
State of Kerala and Anr. v. N.M. Thomas and Anr., AIR 1976 SC 490 (India).
8
AIR 1987 SC 1086 (India)
9
King-Emperor v. Benoarilal (1944) L.R. 72.1. A. 57.
10
Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487 (India).

-MEMORIAL ON BEHALF OF PETITIONER- Page 12

 NATIONAL MOOT COURT COMPETITION, 2018

(2) Where the financial assistance of the State is so much as to meet the entire
expenditure of the corporation, it would afford some indications of the corporation being
impregnated with Government character.

The counsel humbly submits that since The Reserve Bank of India (RBI) has the
monopoly in the country and co-operative banks being the instrumentality of RBI,
therefore, co-operative bank has some monopoly being a part of RBI. In the present case,
the respondent bank has the monopoly of making its own policies regarding the
employment of the candidates, therefore Trumper’s Co-operative Bank is considered as a
state under article 12 of the Indian Constitution.

(4) Existence of deep and pervasive state control may afford an indication that a body is
a state instrumentality.

6. The counsel contends that the Reserve Bank of India being the statutory authority has
been constituted under the Reserve Bank of India Act, 1934 for the purpose of regulating
and controlling the money supply in the country. It also acts as statutory banker with the
Government of India and State Governments and manages their public debts. In addition,
it regulates and supervises Commercial Banks and Cooperative Banks 11 . Every co-
operative bank is also obliged to comply with the provisions of the Regulation Act and
directions/guidelines issued by RBI from time to time.12

7. The counsel based on the above arguments emphasises that it is not disputed that Reserve
Bank of India is State under Article 12.13 In the case of Ved Prakash Malhotra v. State
Bank of India14, while referring the case of J. C. Sachdev v. Reserve Bank of India15,
the Reserve Bank of India was held to be "the State" under Article 12 of the Constitution.
In the case of Rajasthan State Electricity Board, Jaipur v. Mohan Lal16, the Supreme
Court who, after quoting the meaning of the word "authority" given in Webstor's Third
New International Dictionary, observed that the word was clearly "wide enough to
include all bodies created by a statute on which powers are conferred to carry out
governmental or quasi-governmental functions". The court states that the word
'authorities' is very wide enough in Article 12 of the Constitution of India and any

11
Reserve Bank of India and Ors. v. Jayantilal N. Mistry and Ors., AIR 2016 SC 1(India).
12
State of M.P. and Ors. v. Sanjay Nagayach and Ors., AIR 2013 SC 1921(India).
13
V.T. Khanzode v. Reserve Bank of India, AIR 1982 SC 917 (India).
14
(1974) 1 ILR Delhi 660 (India)
15
(1973) IILLJ 204 Del (India)
16
AIR 1967 SC 1857 (India)

-MEMORIAL ON BEHALF OF PETITIONER- Page 13

 NATIONAL MOOT COURT COMPETITION, 2018

authority which is an instrumentality or agency of the State falls within the purview of
'State' as defined in Article 12 of the Constitution.17 These arguments set up the ground
for the contention that a co-operative bank shall fall under the definition of state.

(5) If the functions of the corporation are of public importance and closely related to
Governmental Functions.

8. The counsel contends that in present case the Trumper’s Co-operative Bank is discharging
functions of which is of public importance because the bank is directly dealing with the
public in hand, providing them the banking services which is one of the most important
roles of the government also.

9. The counsel further submits that in the case of Narayan v. Maharashtra State Co-
operative Land Development Bank Ltd.18, the Nagpur Bench held that the Maharashtra
State Co-operative Land Development Bank Limited was "State" or "other authority"
Under Article 12. The Nagpur Bench relied upon two factors only for the purpose of
holding that the Maharashtra Slate Co-operative Land Development Bank was "State"
within the meaning of Article 12, the first being that the Maharashtra State Cooperative
Land Development Bank Limited is a creature of the statute and second being that it is
discharging public functions which the State could have discharged through its agency.
Therefore, it made the conclusion that the Bank was a State.

10. The word 'authorities' is very wide enough in Article 12 of the Constitution of India and
any authority which is an instrumentality or agency of the State falls within the purview
of 'State' as defined in Article 12 of the Constitution. The council would further add on
that irrespective of the argument whether the bank in question here shall be a state or not,
even a private body or a corporation19 or an aided private school20 may however, be
included within the definition of ‘State’ if it acts as an ‘agency’ of the Government.21

11. Hence, the RBI being a state, the co-operative bank having the mandate to comply by the
guidelines of RBI and the precedent of a bank being a state proves a co-operative bank is a
state as per article 12 of the constitution.

17
Kishan Lal Mantumal v. State of Rajasthan, (1988) WLN (UC) 479 (India).
18
1991 1 BCR 469 (India)
19
Central Inland Water Corpn. v. Brojo, AIR 1986 SC 1571 (India).
20
Manmohan v. Commr. U.T. Chandigarh, AIR 1985 SC 364 (India).
21
Sukhdev v. Bhagatram, AIR 1975 SC 1331 (India).

-MEMORIAL ON BEHALF OF PETITIONER- Page 14

 NATIONAL MOOT COURT COMPETITION, 2018

[C] PHONE TAPPING AND EMAIL HACKING INFRINGES RIGHT TO

PRIVACY

12. The counsel on behalf of the petitioners submits the third contention that Privacy is defined
as the state of being free from intrusion or disturbance in one's private life or affairs and is
also a fundamental right of an individual.

13. The counsel further submits that on 24th August’2017 in the landmark judgement in the
case of Justice KS Puttaswamy (Retd.) & Anr. v. Union of India &Ors22 the Supreme
Court of India unanimously in the constitutional bench of nine judges upheld privacy as a
fundamental right, thus making it clear that anyone can challenge the actions of the State
or other entities of the State against the infringement of this right. The Hon’ble court
unanimously found that privacy was a right emanating from Article 21 of the Constitution,
which guarantees right to life and personal liberty. 23 It is indeed inseparable and
inalienable from human being. In other words, it is born with the human being and
extinguish with human being24and a citizen has a right to safeguard the privacy of his own,
his family, marriage, procreation, motherhood, child bearing and education among other
matters.25

14. The counsel submits that life and liberty are not empty words; they include all those
necessary ingredients which give meaning to them and privacy of a person is a part of his
life and liberty under our Constitution which by the act of telephone tapping has deprived
the person of his right to privacy as well as his right to freedom of speech and expression.

15. The counsel contends that in the case of People's Union of Civil Liberties (PUCL) v.
Union of India (UOI) and Ors.26 , petitioner challenged constitutional validity of Section
5 (2) 27 of the Telegraph Act, 1885 or in alternative contended that said provisions be
suitably read down to include procedural safeguards to rule out arbitrariness and to prevent
indiscriminate telephone tapping. Justice Kuldip Singh in the judgement emphasised that
Telephone-Tapping is a serious invasion of an individual's privacy. With the growth of

22
Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461 (India).
23
Art. 21., The Constitution of India, 1960.
24
Abhinav Sharma & Drishti Rawal, INFORMAL METHOD AS A MEANS OF JUDICIAL
INTERPRETATION: WITH REFERENCE TO EVOLUTION OF PRIVACY AS A FUNDAMENTAL
RIGHT, (March 16, 2018), http://jlsr.thelawbrigade.com/wp-content/uploads/2018/02/Abhinav-Dristi.pdf.
25
R. Rajagopal and Ors. v. State of Tamil Nadu and Ors., AIR 1995 SC 264 (India).
26
AIR 1997 SC 568 (India)
27
Sec 5, The Indian Telegraph Act, 1885.

-MEMORIAL ON BEHALF OF PETITIONER- Page 15

 NATIONAL MOOT COURT COMPETITION, 2018

highly sophisticated communication technology, the right to hold telephone conversation,

in the privacy of one's home or office without interference, is increasingly susceptible to
abuse. This judgment now understood with the judgment that made right to privacy as a
fundamental right sets up the basis of the argument that phone tapping without an
individual’s permission is a violation of the said right.

16. The counsel further submits that even when the conditions of public at large are in
existence, the Central Government or a State Government or the authorised officer cannot
resort to telephone tapping even though there is satisfaction that it is necessary or
expedient so to do in the interests of sovereignty and integrity of India etc.28 It is a right of
a citizen to safeguard the privacy of his own, his family, marriage, procreation,
motherhood, childbearing and education among other matters” and right to be free from
unnecessary, arbitrary state interference in the same.29

17. The counsel concludes that even if the Central Government is satisfied that it is necessary
or expedient so to do in the interest of the sovereignty and integrity of India or the security
of the State or friendly relations with sovereign States or public order or for preventing
incitement to the commission of an offence, it cannot intercept the messages or resort to
telephone tapping unless a public emergency has occurred or the interest of public safety
or the existence of the interest of public safety requires. Neither the occurrence of public
emergency nor the interest of public safety has taken place in the following case and the
respondent’s defence based on these lines would be redundant. Hence, the counsel has
established that a co-operative bank being a state has deprived its’ employee, the petitioner
of her fundamental right to privacy.

II. Whether the termination of Mr. Hamilton Smith & Ms. Rebecca Saloman arbitrary or
not?

It is humbly submitted before the Hon’ble Supreme Court (Herein SC) that the
termination of the petitioners by the respondent counsel was arbitrary in nature.

18. The counsel on behalf of petitioners contends that right to work is a fundamental right and
The Trumper’s have violated the said right of its employee by terminating the contract of
employment which was merely arbitrary and unreasonable. The counsel has two

28
K.L.D. Nagasree vs. Government of India, represented by its Secretary, Ministry of Home Affairs and Ors.,
AIR 2007 AP 102 (India).
29
Supra, Id.25.

-MEMORIAL ON BEHALF OF PETITIONER- Page 16

 NATIONAL MOOT COURT COMPETITION, 2018

contentions; [A] violation of fundamental rights under article 14 and article 21, [B]
Hamilton Smith is not liable under section 420 of IPC.

[A] VOILATION OF FUNDAMENTAL RIGHTS UNDER ARTICLE 14 AND

ARTICLE 21.

[A.1.] Violation of Right to Work

19. The Council on the behalf of the petitioner submits that the right to life includes right to
livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in
authority. The employment is not a bounty from them nor can its survival be at their
mercy. Income is the foundation of many fundamental rights and when work is the sole
source of income, the right to work becomes as much fundamental. In any event, right to
work is a fundamental right and nobody has got his right to obstruct the willing employees
to do the work.30 In the present case, the job of the petitioners, which was dismissed by the
respondent bank, was their sole source of income, therefore, infringing the right to work of
the employees.

20. The Council further contended that the right to work enshrined in Article 41 of the
Constitution emanates from the right to life assured under Article 21 to subserve dignity of
person and of status assured in the preamble of the Constitution to develop scientific
temper, humanism, spirit of enquiry and reform for the purpose of achieving excellence in
all spheres of the activities of the concerned individual without which the right to life
becomes animal existence bereft of finer facets of life and its vitality. Thereby by right to
work becomes a fundamental right.31

[A.2] Violation of Principle of Natural Justice

21. Natural Justice is an inseparable ingredient of fairness and reasonableness as it was stated
in Suresh Chandra Nanhorya v. Rajendra Rajak and Others 32 . In the case of A. K.
Kraipak v. Union of India33, the Supreme Court stated that no decision shall be given
against a party without affording him a reasonable hearing (audi alteram partem) as one of
the principles of natural justice.

30
Jan Chowkidar (People's Watch) through Dr. Suman Lal, v. The State of Bihar through the Chief Secretary
and Ors, (2009) IVLLJ 890 Pat (India).
31
P. Seshaditya Murthy and Ors. v. District Medical and Health Officer, Guntur and Ors., (1988) IILLJ 397 AP
(India).
32
(2006) 7 SCC 800 (India)
33
(1969) 2 SCC 262 (India)

-MEMORIAL ON BEHALF OF PETITIONER- Page 17

 NATIONAL MOOT COURT COMPETITION, 2018

22. The counsel further states that in the case of Basudeo Tiwari v. Sido Kanhu University &
others, 34 the court held that Non- arbitrariness is an essential facet of Article 14
persuading the entire realm of State action governed by Article 14. Natural Justice is in
turn is an anti-thesis of arbitrariness. It therefore follows that audi alteram partem which is
a facet of natural justice is a requirement of Article 14. The life of the law is not logic but
experience and every legal proposition must, in the ultimate analysis, be tested on the
touchstone of pragmatic realism, the audi alteram partem rule would, by the experimental
test, be excluded if importing the right to be heard has the effect of paralysing the
administrative process or the need for promptitude or the urgency of the situation so
demands.35 “Natural justice is a great humanising principle intended to invest law with
fairness and to secure justice and over the years it has grown into a widely pervasive rule
affecting large areas of administrative action".36

23. The counsel further contends of Kanda v. Government of Malya37 (refereed in Biecco
Lawrie ltd. v. State of West Bengal), Lord Denning stated that, “If the right to be heard is
to be a real right which is worth anything, it must carry with it a right in the accused man
to know the case which is made against him. He must know what evidence has been given
and what statements have been made affecting him: and then he must be given a fair
opportunity to correct and contradict him.”

24. The counsel submits that in Rita Mishra's case38, it was stated by the Patna High Court
that such an employee who has acquired status of employment cannot be straight-away
denied that status. In the case of permanent employment, the employee acquires a right
over the post and he cannot be terminated from such employment by an order of
termination simplicitor. Even in case of temporary employee, such an action of
repudiating appointment or terminating the contract on the ground that the contract of
employment was obtained by fraud, misrepresentation or mistake is not permissible
because in my opinion such an order is stigmatic and would leave a stigma on the career of
employee.

34
(1998) 8 SCC 194 (India)
35
Supra, Id.2.
36
Supra, Id.2.
37
Kanda v. Government of Malaya [1962] AC 322; [1962] 2 WLR 1153, PC.
38
Rita Mishra and Ors. etc. etc. vs. Director, Primary Education, Bihar and Ors. etc, AIR 1988 Pat 26 (India).

-MEMORIAL ON BEHALF OF PETITIONER- Page 18

 NATIONAL MOOT COURT COMPETITION, 2018

25. The council further pleads that in the case of S.L. Soni vs. Rajasthan State Mineral
Development Corporation Ltd. 39 , the court said in cases where element of public
employment is involved, it has been held that the principles of natural justice would be
applicable and if the services of an employee are sought to be terminated by way of
punitive action on account of misconduct, he must be afforded an opportunity before such
an action is taken. In the present case, Mr. Hamilton Smith was not given any chance to
defend himself and no chance was given to him to correct and contradict his mistakes,
which might leave a stigma on his career, therefore, the respondent bank has violated the
fundamental principle of Natural Justice by doing so.

[B] HAMILTON SMITH IS NOT LIABLE UNDER SECTION 420 OF IPC.

The council on the behalf of the petitioner pleads that under s. 420, of I.P.C. which speaks
about dishonest inducement as a necessary is lacking in the present case.

26. The council submits that in Tulsi Ram v. State of Uttar Pradesh40, the court held that
before a person is convicted under Section 420 of the Indian Penal Code, it has to be
established not only that he has cheated someone but also that by doing so he has
dishonestly induced the person, who was cheated to deliver any property etc. A person can
be said to have done a thing dishonestly if he does so with the intention of causing
wrongful gain to one person or wrongful loss to another person. The allegations made in
the report neither make out any basis for either of the requirements.41

27. Section 2342 explains what ‘wrongful gain’ is and what ‘wrongful loss’ is. 'Wrongful gain'
is gain by unlawful means of property to which the person gaining is legally entitled.
'Wrongful loss' is the loss by unlawful means of property to which the person losing it is
legally entitled.

28. The council further contents that in the case of Hari Sao v. State of Bihar43, The Supreme
Court held that the false representation made by the accused to the station master leading
to his making endorsement on the receipt, could not, even if established as a dishonest or
fraudulent act, cause any damage or harm to the railway. Thus, no question of cheating,
the railway or the station master arose. On this count, the accused were acquitted. In the

39
1985 RLW 272 (India)
40
AIR 1963 SC 666 (India)
41
Mrs. Vidya Stokes v. State of Himachal Pradesh and Anr, 1994 CriLJ 1833 (India).
42
Indian Penal Code, 1860.
43
AIR1970 SC 843 (India)

-MEMORIAL ON BEHALF OF PETITIONER- Page 19

 NATIONAL MOOT COURT COMPETITION, 2018

present case, since there was no loss to the respondent bank by the act of the petitioner,
therefore, the petitioner should not be held liable under s. 420 of IPC.

[B.1.] Damnum Sine Injuria

29. There are many acts which though harmful are not wrongful and give no right of action to
him who suffers from their effects. Damage so done and suffered is called Damnum Sine
Injuria or Damage without injury. 44

30. In the case of Hotel Palace vs. State of J&K and Ors.45, the court said that there may be a
stiff competition and loss of business of the appellant but damages so suffered would not
harm the appellant with a cause of action because, legally speaking, no injury has been
caused. Thus, Damnum sine Injuria would apply. Of course, if there is no illegality
committed in raising construction by respondent no.6 then the matter has to be considered
by the appropriate authority. In the present case also, there is no injury suffered by the
bank though damage was suffered that too because of Miss Trentham. Therefore, it is
contended that Mr. Hamilton (petitioner) will not be liable under section 420 of I.P.C.

III. Whether the Employment Contract was Against the Public Policy or Not?

It is humbly submitted by the counsel that in Chitty on Contracts 'General Principles' (27th
Ed) (vol. I, 1994), it was stated that:

31. "Contracts in standard form are very frequently embody clauses which purport to impose
obligations on him or to exclude or restrict the liability of the person supplying the
document.” Where a standard form of contract is entered into by the Government or its
instrumentality with a private person containing unreasonable, unfair and irrational terms,
such terms cannot be binding being opposed to public policy, since the other party who is
a weaker party accepting the dotted line contract neither have the power to bargain or to
assume to have equal bargaining power.46

32. The counsel contends that in the case of Balmer Lawrie and Co. Ltd. and Ors. v. Partha
Sarathi Sen Roy and Ors47 it was stated that Article 14 of the Constitution guarantees to
all persons, equality before the law and equal protection of the law. Thus, it is necessary to

44
Mukesh Chouhan, Torts in India - Whether Unnecessary or simply Overlooked, (March 16, 2018),
http://www.legalserviceindia.com/article/l175-Torts-in-India.html.
45
Hotel Palace v. State of J&K and Ors, 2012 JKJ 3 591(India).
46
LIC of India v. Consumer Education and Research Centre , (1995) 2 SCC 482 (India).
47
Balmer Lawrie and Co. Ltd. and Ors. v. Partha Sarathi Sen Roy and Ors, (2013) 8 SCC 345 (India).

-MEMORIAL ON BEHALF OF PETITIONER- Page 20

 NATIONAL MOOT COURT COMPETITION, 2018

strike down an unfair and unreasonable contract, or an unfair or unreasonable clause in a

contract, that has been entered into by parties who do not enjoy equal bargaining power
and are hence hit by Section 23 of the Contract Act, and where such a condition or
provision becomes unconscionable, unfair, unreasonable and further, is against public
policy.

33. The counsel contends that a clause or a contract should not be unreasonable as the
principle of reasonableness, which legally as well as philosophically, is an essential
element of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence
and the procedure contemplated by Article 21 must answer the best of reasonableness in
order to be in conformity with Article 14. It must be "right and just and fair" and not
arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the
requirement of Article 21 would not be satisfied.48

34. Therefore, it is humbly submitted that in the present case, the policy of the bank which
was that “it does not employ two persons from same family or those who are related to
each other by blood”49 is not just, fair and reasonable as it is oppressing the rights of the
employees. Thus, it is not according to the public policy as it against Article 14 and
Article 21 of the Indian Constitution.

35. Hence, the counsel contends that “In order to be described as arbitrary, it must be shown
that it was not reasonable and manifestly arbitrary. The expression arbitrarily means: in an
unreasonable manner, as fixed or done capriciously or at pleasure, without adequate
determining principle, not founded in the nature of things, non-rational, not done or acting
according to reason or judgment, depending on the will alone."50An obvious test to apply
is to see whether there is any discernible principle emerging from the impugned act and if
so, does it satisfy the test of reasonableness.51If a decision taken without any principle or
without any rule it is unpredictable and such decision is the antithesis of a decision taken
in accordance with rule of law.'52 Therefore, a decision without any discernible principle

48
Supra, Id.2.
49
Para 6 of the Moot Problem.
50
Sharma Transport v. Government of A.P, (2002) 2 SCC 188 (India).
51
SrilekhaVidyarthi v. State of UP, AIR 1991 SC 537 (India).
52
S.J. Jaisinghania v. Union of India and Ors., AIR1967 SC 1427 (India).

-MEMORIAL ON BEHALF OF PETITIONER- Page 21

 NATIONAL MOOT COURT COMPETITION, 2018

which fails to satisfy the test of reasonableness by logic is unreasonable and every
unreasonable decision taken on the whims and fancies of the authorities is arbitrary.53

36. In the present case, the particular policy of the respondent bank was against equality given
under Indian constitution and also infringes employee’s right to work. Therefore, the
policy is unreasonable. The petitioners were not even given a chance of hearing before
terminating them. The decision was taken out rightly and thus, this action of the
respondent was arbitrary in nature.

53
Pennar Delta Ayacutdars Association and others vs. Government of Andhra Pradesh and others, 2000 (3) ALD
182 (India).

-MEMORIAL ON BEHALF OF PETITIONER- Page 22

 NATIONAL MOOT COURT COMPETITION, 2018

PRAYER

Wherefore, in light of the facts stated, issues raised, authorities cited & arguments advanced,
may this Hon`ble Supreme Court of India be pleased to adjudge & declare that:

1. Compensation shall be given to both the petitioners as the court may deem fit.
2. The policy of bank related to uterine blood was arbitrary in nature and should be
repealed.
3. The employee should be reinstated in the bank in a dignified manner.

AND

Pass any other order that it may deem fit in the interest of justice, equity & good conscience.

All of which is most humbly prayed.

On behalf of

Rebecca Saloman & Hamilton Smith

Counsel for the Appellant

Sd/

-MEMORIAL ON BEHALF OF PETITIONER- Page 23