NMIMS KPMSOL NAVI MUMBAI 1st INTRA MOOT COMPETITION

TABLE OF CONTENTS

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INDEX OF AUTHORITIES

BOOKS REFFERED

STATUES

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ARTICLES

E-RESOURCES

1. www.lexisnexisacademic.com
2. www.vakilno1.com
3. www.indiakanoon.org
4. www.manupatra.com
5. www.wikipedia.org
6. www.britannica.com
7. www.en.wikisource.org
8. www.legalserviceindia.com
9. www.thehindu.com
10. www.law.cornell.edu
11. www.thebluebook.com
12. www.journals.cambridge.org
13. www.worldbank.org
14. www.legalsutra.org

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CASES

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STATEMENT OF JURISDICTION

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STATEMENT OF FACTS

 People involved:
 CEO of ‘Majorca D’ of New Delhi: Mr. Juan Botto
 Chairperson of the Hotel Chain ‘La Majorca’ of England: Mr.John Peterson
 Global Head (Operations) of Hotel Chain of England: Claudia Bassols
 Global Manager (Operations) of New Delhi: Ms. Apsara Jhingan
 Head of ‘Paradizo’ Italian firm for housekeeping work: Mr.Carlos Latore
 General Manager of ‘Paradizo’: Mr. Rajneesh Behl

The material case arises out of claim of Appealant Ms. Apsara Jhingan firstly for Sexual
Harassment at workplace and secondly for non-initiation of a police complaint and also
for the subsequent unlawful termination.
 Magistrate Court Judgement:
Firstly Charge sheet was issued in the Court of Judicial Magistrate, at Patiala House
Court. The said court acquitted Rajneesh on the ground that in the absence of a complaint
by Miss. Apsara, the police cannot take cognizance of the offence committed by Mr.
Rajneesh.Behl.
 Session Court Judgement:
She then Appealed in the Session Court at Delhi South District, against Mr.
Rajneesh.Behl but Session court also upheld the decision given by the Court of Judicial
Magistrate.
 Currently:
So she now has Appealed in the High Court of Delhi challenging the Session court
decision.
 Background:
1. Juan hired an Indian GM (Operations) Ms. Apsara Jhingan, a very attractive and qualified
woman of 36 years having excellent track record in Hotel Industry. Although she was
appointed to cater Indian operations only but, as per appointment terms and conditions,
she could be deputed at locations out of India also.
2. An Italian firm ’Paradizo’ headed by ‘Carlos Latore’ was appointed for housekeeping
work. Paradizo appointed its 56 personnel to cater several activities.
These activities and services were supervised by an Indian GM Rajneesh Behl, a highly
qualified and experienced professional, having excellent command on guest relations. He

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had very deep links in hotel industry and with film celebrities. Rajneesh was an Indian
origin, bachelor of 42 years having British citizenship, who arrived in India 3 months
back on a temporary working visa valid for one year only.
3. As per requirement, the contract employee, so appointed by Paradizo’, had to behave as
a permanent staff of ‘Majorca D’ and to wear the same uniform, but their salaries are
directly paid to the ‘Paradizo’, who in turn distribute it among its 56 employees. Rajneesh
is also being paid in the same manner.
 Current problem :

4. On 21st April 2015, she was moved to Kathmandu, Nepal, on a temporary assignment
for a month initially, and had to look after the operations of ‘Majorca Yeti’. She was
pleasantly surprised to see Rajneesh there; as he was also directed to remain at
Kathmandu and help in arranging manpower for Apsara, whenever it was required.

5. On 23rd April 2015 in evening, Rajneesh offered her to go to another ‘Hotel Soltee’
Kathmandu to play ‘Rolette’ at Casino. She accepted the offer and got ready to come
along. During play at Casino and dancing at discotheque; at times she could feel that
Rajneesh is trying to come physically closer and also trying to touch her inappropriately
but she escaped a bit and not objected on it.

6. On 26th April 2015, Rajneesh proposed her to visit ‘Pokhra’, almost 250 Kms away, on
weekend celebration and also to interview some suitable candidates for operations of the
Kathmandu unit. Apsara was hesitant initially, but later agreed to go with him. Rajneesh
booked a taxi and both of them took back seat for the travel. During the travel, Rajneesh
was cracking jokes and laughing loudly, during which he was leaning on Apsara up to
that level that she had to look for a safe space within the back seat. To avoid Rajneesh,
Apsara started listening to music on her mobile phone and started peeping outside the
car’s window. Rajneesh understanding her mood started pretending to sleep, and during
sleep he pretend to lean on her shoulder, and once he actually slipped in her lap and kept
his head to rest in. Apsara pushed him away but he did it again and again.

7. At ’Pokhra’ Apsara was stunned to hear, that Rajneesh had booked one luxury suite,
having two blocks within, one for resting and another for sitting purpose, in the name of
Mrs. and Mr. Rajneesh Behl, for staying and also taking interviews. As it was not wise
to create a scene she managed to slip to the inner part of the suite, locked the door from

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inside and slept for an hour, as she was very much tired due to the long journey. Rajneesh
called her several times for taking tea but she did not open the door.

8. Apsara could smell that Rajneesh is behaving slightly rough and pretending to give no
hears to her during interview, even sometimes trying to overpower her objections. It was
quite frustrating but she never bothered by then. In the evening neither he called Apsara
for dinner nor arranged any travel facility for outing. He himself went out and came in
drunken state, when Apsara saw him like that she asked, about his well-being, but
Rajneesh gave her a dirty look and slipped on the sofa to sleep ordering her to close the
television. Apsara felt it very bad but never spoke even a single word.

9. On 28th April 2015, they returned back to Kathmandu, during the return journey
Rajneesh never tried to talk to her, neither he was willing her to answer any discussion
or question. During the journey, Apsara asked Rajneesh to bring her a cold drink….’Go
to hell…you bitch’ Rajneesh murmured and went out of the car. Apsara could not bear
this humiliation and never had any talk to him during their remaining journey.

 Filing of complaint to Hotel Authority:

10. On 10 June 2015, After a week returning to New Delhi, Apsara made a complaint
against Rajneesh to Mr. Juan Botto for sexual harassment and wilful humiliation at the
work place. After listening to Apsara Juan was keen to take prompt action. Aware of the
new changes to the law, the CEO went about setting up a committee to deal with the
issue as swiftly as possible. The only concern was that the Hotel had only been running
for five months and it was therefore difficult to find adequate number of suitable
employees to appoint on the committee. The Hotel had branches in the nearby Countries
like Singapore and Nepal, and Juan drew from the staff at those branches to constitute
the committee as required under law. The only post that he was unable fill was that of a
woman committee head.
11. Apsara was the senior most woman employee working with the Hotel in India, and Juan
Botto felt the presiding officer could not be an employee who was junior to her in rank.
The only woman senior to Apsara was the Global Head of the Hotel chain, Claudia
Bassols, based out of London. Juan felt it unprofessional to burden her with such a chore
and decided, in the absence of another alternative, to preside over the committee himself.

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12. The committee carried out their duties, and allowed Rajneesh, an opportunity to be heard
and cross examine witnesses such as the taxi driver. After analysing all the facts, the
members of the committee were unable to conclusively determine that Rajneesh’s
actions were entirely against Apsara’ s will, even holding that the actions were not
strictly within the workplace. The only person in the committee who voted to find
Rajneesh guilty was the presiding officer, Juan Botto himself.
13. When ‘Carlos Latore’ heard about this incident, he was furious that his employee had
been subjected to a disciplinary enquiry conducted by another organization. He claimed
that Rajneesh was a contract worker and that the Hotel had, regardless of the final
verdict, no right to initiate action against his employee. He claimed that, in any case, the
incident had not happened at a workplace, and action could therefore not be taken under
the laws governing sexual harassment at the workplace.
14. Looking at the situations, becoming worst, Juan discussed the matter with John
Peterson, who advised him to engage Claudia Bassols immediately and leave the
decision on her. Claudia called Apsara and enquired about each incident in detail and
apologized on behalf of ‘La Majorca’ for the unwarranted incident. She advised her to
let the hotel inquire the whole incident at corporate level but by then, she should
withdraw her application of harassment .By doing so she may be awarded a choice
posting attached with financial gains or otherwise her probation period of employment
may be considered as ‘Not Satisfactory’. Apsara rejected the advice and forwarded the
conversation to the media. Claudia out rightly fired Apsara and asked her to leave the
office immediately.
15. By this time, various newspapers had carried this story and the information was very
much in the public domain. The Delhi police took suo moto cognizance of the
allegations and lodged an FIR against Rajneesh based on the modifications in Indian
criminal law read with the new sexual harassment at workplace laws.

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STATEMENT OF ISSUES

 Is the present case maintainable before the High Court of Delhi?

 Can an employer initiate sexual harassment proceedings against a contract worker?
 Do Rajneesh’s actions amount to sexual harassment at the workplace?
 Was the sexual harassment committee validly constituted by the Hotel?
 Was the Hotel under an obligation to initiate a police complaint and is the aggrieved
woman required to complain for the court to take action?
 Was Apsara’s termination valid under law?
 Which legal forum and laws are appropriate for the case?

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SUMMARY OF ARGUMENTS

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ARGUMENTS ADVANCED

ISSUE1: Is the present case maintainable before the High Court of Delhi?

It is humbly submitted before this Hon’ble High court of Delhi that the writ and the Appeal
filed are maintainable because whenever a question of Law of general public importance
arises the jurisdiction can be invoked. According to the Art. 226 of Indian constitution
High court has power to issue directions, order or writ. Such can be issued for the
enforcement of Fundamental rights or for any other purpose. It has been held in plethora
of cases that when the question of law of general public importance arises, the jurisdiction of
High Court can be invoked. In the present case, the issue involves matter of General Public
importance as Workplace sexual harassment is a form of gender discrimination which
violates a woman’s fundamental right to equality and right to life, guaranteed under Articles
14, 15 and 21 of the Constitution of India and hence, appeal is entitled to be maintainable.

It is humbly submitted that the expression "Substantial question of law" is explained by the
Constitution Bench of the Apex Court as : “The proper test for determining whether a question
of law raised in the case is substantial would, in our opinion, be whether it is of general public
importance or whether it directly and substantially affects the rights of the parties and if so
whether it is either an open question in the sense that it is not finally settled by this Court or by
the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion
of alternative views.”1

In the present case, the question of law involved in appeal is that the lower court decision is
affecting the rights of the petitioner to approach the court. Therefore, it is humbly submitted
that the appeal presented before this Hon’ble High Court is maintainable as it is an appeal
which deserves interference of the Hon’ble High Court to correct the impugned judgment. The
High Court has full power to undergo the entire evidence upon which the order of acquittal was
founded and then to come to its own conclusion.2 The HC can interfere with the acquittal order
of the Session court under section 378 CrPC, when the conclusions arrived at by the Magistrate
court are factually and legally incorrect. The paramount consideration of the High Court would

1
Chunnilal Mehta v. Century Spinning & M Co. Ltd. , AIR 1962 SC 1314.

2
Songappa V State of Karnataka (2010 ) 3 S.C.C. 68

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be to avoid miscarriage of justice and the miscarriage of justice arising from the acquittal of a
guilty is not less than from convicting an innocent.3

Denial of a fair trial is as much injustice to the victim and the society as it is to the accused.4

It has to be unmistakably understood that a trial which is primarily aimed at ascertaining truth
has to be fair to all concerned. The HC would be justified to re-consider evidence and convict
the accused in appeal, because the judgment of the lower court was manifestly wrong and based
on unconvincing reasons and on unreasonable ground that there was no complaint by petitioner
no. 1 and the police cannot take cognizance of the offence committed by the accuse.

It is contended that whole trial in the magistrate court is vitiated by an error or illegality. An
appeal would lie only to the High Court not only from an original order of acquittal but also
from the appellate order of acquittal passed by the Courts below. Where the order is clearly
unreasonable, it is a compelling reason for interference.5 Once the appellate court comes to the
conclusion that the view taken by the acquitting judge is clearly an unreasonable one, it will in
itself be a ‘compelling reason’ for interference.6

In an appeal against acquittal the High Court can interfere with the finding impeached, if the
High Court comes to the conclusion that not only is the offence proved beyond a reasonable
doubt but that is difficult, if not impossible to see how a contrary view could be held on the
material available in the case.

Hence, the present appeal is maintainable as it is in accordance with section 378(1) (b) of CrPC.

3
Allarakha K Mansuri V State of Gujrat AIR2002 SC 1051, (2002) 3 SCC 57,2002 SCC (Cr)519,2002 Cr LJ1489
(SC)

4
Sahira Habubulla H Sheikh & anr v.State of Gujarat & Ors. AIR 2004SC3467,2004 CrLJ2050 (SC)

5
Jaswant Singh v. State of Haryana, AIR 2000 SC 1823.

6
Harbans Singh v. State of Punjab, AIR 1962 SC 439

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ISSUE2: Can an employer initiate sexual harassment proceedings against a

contract worker?

It is humbly submitted before this Hon’ble High court of Delhi, Sexual Harassment
proceeding can be formulated against a contract employee or worker. The definition of POSH
Act specifies who all can be specified as employees. According to POSH Act the term
employees means a persons employed on a temporary, ad hoc or daily wage basis, and
includes apprentices, trainees, volunteers and persons employed at a workplace through an
agent or contractor. Therefore, in respect to Para 3 of the facts of the case respondent were
had to behave as a permanent staff of ‘Majorca D’

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PRAYER

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