13TH NATIONAL MOOT COURT COMPETITION, 2018

TEAM CODE: Arati Saha

COLONEL DR.JEPPIAAR 2ND ALL INDIA WOMEN NATIONAL MOOT COURT COMPETITION,
2019

BEFORE THE HON’BLE

SUPREME COURT OF WOODLANDS

IN THE MATTER OF

(WP. NO OF 2019)

ABDUL APPELLANT
V.
BAVITHRA RESPONDENT

S.L.P. NO. OF 2019

HYGENIC HEALTH CARE PRODUCT LTD APPELLANT

V.
CATHERINE RESPONDENT

UNDER ARTICLE 32 AND 136 OF THE WOODLANDS CONSTITUTION, 1947

(MATTERS TAGGED)

MEMORANDUM ON BEHALF OF THE APPELLANT

COUNSEL FOR THE APPELLANT

MEMORIAL ON BEHALF OF THE APPELLANTS 1A

COLONEL DR.JEPPIAAR 2ND ALL INDIA WOMEN NATIONAL MOOT COURT COMPETITION,
2019

TABLE OF CONTENTS

CONTENT P.

LIST OF ABBREVIATIONS 2
INDEX OF AUTHORITIES 4
I. CASE LAW 4
II. JOURNALS 6
III. COMMENTARIES 6
IV. WEBSITES 6
STATEMENT OF JURISDICTION 7
STATEMENT OF FACTS 8
SUMMARY OF PLEADINGS 9
WRITTEN PLEADINGS 11
I. WHETHER ABDUL DESERVE SYMPATHY AS POINTED OUT BY LABOUR COURT AND

THE PROCEEDINGS OF ICC VIOLATES PRINCIPLE OF LAW AND NATURAL JUSTICE?

11
II. WHETHER THE QUANTUM OF PUNISHMENT IS EXCESSIVE WARRANTING LESSER

PENALTY IN PLACE OF DISMISSAL FROM SERVICE? 16

III. WHETHER THE DEFENSE PROVIDED UNDER SECTION 95 OF WPC CAN BE INVOKED

BY ABDUL FOR DISCIPLINARY PROCEEDINGS AGAINST HIM & THE EMPLOYERS PLEA
OF LOSS OF CONFIDENCE IS SUFFICIENT FOR THE REFUSAL TO REINSTATE HIM? 19

IV. WHETHER THE EMPLOYER IS JUSTIFIED IN REFUSING TO PROVIDE CCTV CAMERA

FACILITIES FOR SAFE WORKING ENVIRONMENT? 22
PRAYER 25

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MEMORIAL ON BEHALF OF THE APPELLANT
COLONEL DR.JEPPIAAR 2ND ALL INDIA WOMEN NATIONAL MOOT COURT COMPETITION,
2019

LIST OF ABBREVIATIONS

ABBREVIATION EXPANSION
¶ Paragraph Number
¶¶ Paragraphs Numbers
& And
AIR All India Reporter
All Allahabad High Court
Anr. Another
AP Andhra Pradesh High Court
Art. Article
Arts. Articles
CJI Chief Justice of India
Constitution The Constitution of India, 1950
ed. Edition
e.g. exemplis gratia (Latin)
etc. Etcetera

HC High Court
Hon’ble Honourable
i.e. id est(Latin)
ICC Internal Complaints Committee
Ltd. Limited
No. Number
NGO Non Governmental Organization
Ors. Others
p. Page Number
pp. Page Numbers
r/w. Read With
S/d Signed
SC Supreme Court
SCC Supreme Court Cases

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MEMORIAL ON BEHALF OF THE APPELLANT
COLONEL DR.JEPPIAAR 2ND ALL INDIA WOMEN NATIONAL MOOT COURT COMPETITION,
2019

S. No. Serial Number

U/Art. Under Article
U/Arts. Under Articles
v. Versus
Vol. Volume
Vols. Volumes
WP Writ Petition
WPC Woodlands Penal Code
Woodlands Sexual Harassment of Women at
WSHWW
Workplace
IC Internal Committee
CCTV Closed Circuit Television
SLP Special Leave Petition
WA Writ Appeal

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MEMORIAL ON BEHALF OF THE APPELLANT
 COLONEL DR.JEPPIAAR 2ND ALL INDIA WOMEN NATIONAL MOOT COURT COMPETITION,
2019

INDEX OF AUTHORITIES

I. CASE LAW

11
Manjeet Singh vs Indrapastha gas limited, W.P.(C) 6352/2016
Shanta Kumar Vs. Council of Scientific and Industrial Research WP(C) No 12
8149/2010
12
State of U.P. Vs. Shatrughan Lal, AIR 1998, SC 3038
V.K. Nigam Vs State of M.P, AIR 1997 SC 1358) 12
B.N. Ray Vs. Ramjas College & Ors., 2012 (130) DRJ 277 (DB) 13

Chamoli District Co-Operative Bank Ltd Vs. Raghunath Singh Rana, CA no 2265 13
of 2011
S.Parthasarathy Vs. state of A.P AIR 1973 SC 2701 13
R. Vs. Chancellor of Cambridge [1748] Eng R 223, (1748 14
Ashok Kumar Singh Vs. university of Delhi and Ors LPA 305/2017 & CM 14
No.15732/2017
Maneka Gandhi Vs. Union of India (1978) 2 S.C.R.621,(’78)A.S.C.597 14

Tejinder Kaur Vs. Union Of India & Ors. W.P.(C),5928 OF 2016 14

Om Kumar Vs. Union of India (2001) 2 SCC 386 15,17

Aman kumar Vs. state of Haryana, 2004 Cr LJ 13 N 99 (SC) 15
Lawrence v Coal & Allied Mining Services Pty Ltd t/a Mt Thorley 15
Operations/Warkworth [2010]FWA 6750
Bharat Forge Co. Ltd. Vs. Uttam Manohar Nakate [2005] INSC 45 16
Management of Hindustan Machine Tools Ltd., Bangalore Vs. Mohd. Usman 16

State of Rajasthan Vs Hetram , (1982) Cri LR 522 Raj 16

Rameswar Vs. state of Haryana , (1984) Cr LJ 786 ,(P&H) 16

Bhagat Ram Vs. State of Himachal Pradesh R.S.A. No.510 Of 2017 17

Chairman and Managing Director, United Commercial Bank & Ors. Vs. P.C. 17
Kakkar, 2003(4) SCC 364
B.C. Chaturvedi Vs. Union of India, 1995(6) SCC 749 17
Ganesh Santa Ram Sirur Vs SBI & ors, Appeal (Civil) 7058 of 2002. 17
Balbir Chand Vs. Food Corpn. Of India, (1997)3 SCC 371, !997 SCC (L &S) 808. 17

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 COLONEL DR.JEPPIAAR 2ND ALL INDIA WOMEN NATIONAL MOOT COURT COMPETITION,
2019

Ranjit Thakur Vs. Union of India, 1988 Crl.L.J. 158 18

Union of India Vs. G.Ganayutham, (2000) 11 LLJ 648 SC 18
Johnson and Johnson Ltd vs Ganjendra Singh Rawat, W.P.(C) 7826/2008 & Crl. 18
MA 15112/2008
Sylvester & Co. Vs Their Workman thro’ Transport and Ors, 2008 (3) BomCR 19
395, (2008) ILLJ 546 Bom
Australasian Meat Industry Employees’ Union Vs. G & K O’Connor Pty Ltd 20
[2000] FCA 627
Nguyen Vs Vietnamese Community in Australia [2014] FWC 4314 20
Farmer v KDR Victoria Pty Ltd [2014] FWC 6539 20
Goodwin Vs. Shanaya Pty Ltd 20
Millard Vs. K & S Freighters Pty Ltd [2017] FWC 105 20
Perkins (1997) 72 IR 186, 191 20
Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (d.ed) and 21
Ors (CA No. 6767 of 2013)
Depot Manager, Andhra Pradesh State Road Transport Corporation Vs. P. Jayaram 21
Reddy
Chandigarh Vs. Raj Kumar 21
J.K. Synthetics Ltd. Vs. K. P. Agrawal 21
López Ribalda and others Vs. Spain, ECHR 14 23

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COLONEL DR.JEPPIAAR 2ND ALL INDIA WOMEN NATIONAL MOOT COURT COMPETITION,
2019

II. JOURNALS

All India report – AIR 1

Supreme Court cases- SCC 7

BOOKS

Ratanlal &, Law of Crimes (26 edn, 1987) Passim

Dr.Hari Singh Gour, Penal law of India (11 edn, 1961) Passim
Nelson R.A. Indian Penal Code (10 edn, 1996) Passim
Pillai PSA, Criminal Law (13 edn, Lexis nexis 1956) Passim
Batuk Lal, Commentary on the Indian penal code (1 edn) Passim

SN Mishra, Labour and industrial law (27 edn) Passim

MP Jain, Indian Constitutional Law (6 edn) Passim
MP Tandon, Indian Penal Code (1 edn) Passim
Aravind P Datar, Commentary on the Constitution of India(2 edn) Passim
OP Malhotra, The Law of Industrial Disputes (6 edn) Passim
Samuel Estreicher, Sexual harassment in the workplace (1 edn,) Passim

III. WEBSITES

www.scconline.in 1
www.manupatra.com 1
www.indiankanoon.org 7

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MEMORIAL ON BEHALF OF THE APPELLANT
 COLONEL DR.JEPPIAAR 2ND ALL INDIA WOMEN NATIONAL MOOT COURT COMPETITION,
2019

STATEMENT OF JURISDICTION

The Appellants herein have approached the Supreme Court of State of Apple Island through:
1. Appellant in Writ Appeal No.__of 2019: An Appeal U/Art. 32 of The Constitution
of Woodlands.
2. Appellant in Special leave Petition No__of 2019: An Appeal U/Art. 136 of The
Constitution of the Woodlands.

Both Petitions have been tagged and listed for common disposal. This Memorandum sets
forth the facts, laws and the corresponding arguments on which the claims are based in the
instant case. The Petitioner affirm that they shall accept any Judgment of this Hon’ble Court
as final and binding upon itself and shall execute it in its entirety and in good faith.

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2019

STATEMENT OF FACTS

For the sake of brevity, the material facts are placed herewith in the chronological order

1. Abdul and Bavithra are co-employees working in the industrial establishment.one

New Year day while taking lunch at common dining hall Abdul gifted Bavithra a
small Tajmahal gift which Bavithra refused at the beginning and later left the place.

2. Bavithra consulted her close friend Catherine, a member of the Internal Complaints
Committee regarding the incidents happened on the day before and gave
compliant against Abdul and requested to take action against Abdul for the incidents
that occurred on 01.01.2019. On hearing this, Abdul rushed to her house and
apologised for the incidents happened that he had no intention to harass her. Then she
requested the Internal Committee to take steps to settle the matter. Accordingly,
proceedings were initiated for conciliation but Bavithra failed to represent and
conciliation proceedings ended in failure.

3. The IC conducted the inquiry and in the inquiry Abdul honestly admitted all the
incidents that occurred on 01.01.2019 but pleaded not guilty stating that he had no
intention to harass or cause any harm to Bavithra. At the end of inquiry the IC gave its
findings holding Abdul guilty of sexual harassment and for causing criminal force to
Bavithra intending to outrage and insult her modesty.

4. Abdul challenged his termination before the Labour Court, He took the plea that the
inquiry proceedings of the IC were vitiated by bias on the part of its member
Catherine who influenced Bavithra to give Complaint against Abdul and influenced
the IC members on the other hand to submit findings against him. He also contended
that the punishment of dismissal was excessive. the Labour Court ordered
reinstatement of Abdul in his original employment with continuity of service but
without back wages, holding that the workman deserved sympathy on mitigating
circumtances.

5. Both Catherine and bavithra moved a separate writ petition pleading to dismiss Abdul
and for the installation of CCTV camaras. The court admitted. Therefore agreived by
this the employer and Abdul moved a separate petition of writ and a SLP in Supreme
Court.

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MEMORIAL ON BEHALF OF THE APPELLANT
 COLONEL DR.JEPPIAAR 2ND ALL INDIA WOMEN NATIONAL MOOT COURT COMPETITION,
2019

SUMMARY OF PLEADINGS
___________________________________________________________________________
[I] WHETHER ABDUL DESERVE SYMPATHY AS POINTED OUT BY LABOUR COURT AND THE

PROCEEDINGS OF ICC VIOLATES PRINCIPLE OF LAW AND NATURAL JUSTICE?

___________________________________________________________________________
It is humbly submitted before the Hon’ble Court that the dismissal by employer was found to
be manifestly harsh in this circumstance, therefore it is violating the principle of law and
natural justice. Therefore the Appellant should be given opportunity to reinstate in the same
establishment.
___________________________________________________________________________
[II] WHETHER THE QUANTUM OF PUNISHMENT IS EXCESSIVE WARRANTING LESSER

PENALTY IN PLACE OF DISMISSAL FROM SERVICE?

___________________________________________________________________________
It is humbly submitted before the Hon’ble court that the inquiry committee were vitiated by
bias on the part of its member Catherine who influenced the respondent on the one hand to
give complaint against the appellant and influenced the internal committee members on the
other hand to submit findings against the appellant. The labour court ordered the
reinstatement of service of the appellant in his original employment with continuity of service
but without back wages holding that the workman deserved sympathy and an opportunity
should be given to him reform himself considering that the appellant has got more than 25
years of service before retirement and therefore the punishment of dismissal was excessive in
nature.
_________________________________________________________________________

[III] WHETHER THE DEFENSE PROVIDED UNDER SECTION 95 OF WPC CAN BE INVOKED BY
ABDUL FOR DISCIPLINARY PROCEEDINGS AGAINST HIM & THE EMPLOYERS PLEA OF LOSS OF

CONFIDENCE IS SUFFICIENT FOR THE REFUSAL TO REINSTATE HIM?

___________________________________________________________________________
It is humbly submitted before the Hon’ble court that the appellant had no intention to harass
or cause any harm to the respondent and acted in good faith which cannot be construed as
misconducts for the purpose of initiating displinary proceedings. The appellant also took the
plea that the inquiry proceedings were vitiated by bias on the part of its member Catherine
who influenced Bavithra, no reasonable person would complain of such harm. And that

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MEMORIAL ON BEHALF OF THE APPELLANT
 COLONEL DR.JEPPIAAR 2ND ALL INDIA WOMEN NATIONAL MOOT COURT COMPETITION,
2019

employer cannot plea of loss of confidence is sufficient for not reinstating the appellant as it
was the very first complaint against the appellant and would cause great suffer to their whole
family.

___________________________________________________________________________

[IV] WHETHER THE EMPLOYER IS JUSTIFIED IN REFUSING TO PROVIDE CCTV CAMERA

FACILITIES FOR SAFE WORKING ENVIRONMENT?

___________________________________________________________________________
It is humbly submitted before this hon’ble Court that it is humbly submitted before this
hon’ble Court that the employer is justified in refusing to provide CCTV camera facilities on
the ground that the right to safe working environment is not violated and right to privacy is
looked upon. It is also submitted that the industrial establishment was only set up only 3
years back and therefore it will cause heavy financial burden for the employer.

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MEMORIAL ON BEHALF OF THE APPELLANT
 COLONEL DR.JEPPIAAR 2ND ALL INDIA WOMEN NATIONAL MOOT COURT COMPETITION,
2019

WRITTEN PLEADINGS

___________________________________________________________________________
[I] WHETHER ABDUL DESERVE SYMPATHY AS POINTED OUT BY LABOUR COURT AND THE

PROCEEDINGS OF ICC VIOLATES PRINCIPLE OF LAW AND NATURAL JUSTICE?

___________________________________________________________________________
[1.1] The employer did not prove the charges of misconduct framed against Appellant.
1. There is insufficient indeed no material on record for the ICC to have concluded a it did and
then to have erroneously imposed the penalty, impugned in this proceedings. Specific charges
leveled against Abdul by the complainant could only be proved partially due to lack of
evidence. The charges of presenting the gift to Bavithra at new year is just a common thing as
the other special occasion and since Bavithra and Abdul know each other since years Abdul
had no other intention to outrage the respondents modesty. In spite of which the internal
committee under pressure reached the conclusion that the appellant Mr. Abdul had
intentionally indulged in a behavior which can be termed as more than familiar or even
flirtatious, in terms of transgressing the lines of acceptable behavior at work place which
impinged on the complainant’s modesty.
2. It cannot be overlooked that for a women who has suffered sexual harassment and thus being
in a state of shock, it would not be possible for her to recount the entire unpleasant episode
with promptness, alacrity and complete facts because such a person would ordinarily be
under varying degrees under sense of deep shock, shame, anger and perhaps fear. She would
be looking for avenues for redressal and persons she could confide in. the committee is a
mechanism put in place to assist women who complain of sexually harassment at their place
of work. Nevertheless, it is equally important that the goodwill, fair name and dignity of an
innocent accused be dealt with the utmost care. An accused/ charged officer must be
presumed to be innocent until there is evidence to show otherwise. The dignity of neither
party can be trifled with in an inquiry proceedings. 1

1
Manjeet Singh Vs. Indrapastha gas limited W.P.(C) 6352/2016

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MEMORIAL ON BEHALF OF THE APPELLANT
 COLONEL DR.JEPPIAAR 2ND ALL INDIA WOMEN NATIONAL MOOT COURT COMPETITION,
2019

[1.2] Not all unwanted physical contact is sexual harassment.

3. The Delhi High Court’s recent decision in the Shanta Kumar v. Council of Scientific and
Industrial Research2 (CSIR) case seems to raise more questions.
The court’s ruling that “not all unwanted physical contact is sexual harassment” has set the
tone for the aforementioned sexual harassment law, thereby determining it to be pure welfare
legislation. The law can be interpreted to imply that only behaviour that has sexual
undertones is considered to be sexual harassment.
4. Justice Vibhu Bakhru explained, “Undoubtedly, physical contact or advances would
constitute sexual harassment provided such physical contact is a part of the sexually
determined behavior. Such physical contact must be in the context of a behaviour which is
sexually oriented. Plainly, a mere accidental physical contact, even though unwelcome,
would not amount to sexual harassment. Similarly, a physical contact which has no
undertone of a sexual nature and is not occasioned by the gender of the complainant may
not necessarily amount to sexual harassment.”

[1.3]The question of due process.

5. To ensure that the delinquent is given an opportunity to give an explanation to defend
himself, it is obligatory on the part of the disciplinary authority to furnish the delinquent not
only with a copy of charge-sheet but also the grounds on which those charges were based and
the circumstances in which it was proposed to take action against him. Furnishing of a copy
of the preliminary inquiry report along with the charge- sheet would not be necessary in each
case. However, if reliance is placed upon that report, a copy of the same has to be given to the
delinquent failing which he would be prejudiced in defending himself.

6. There should be sufficient material on record to show the service of the charge-sheet on the
employee concerned. In order to enable the employee concerned to prepare his explanation, it
is obligatory on the part of the disciplinary authority to allow the official concerned to inspect
the official record, documents and take copies thereof. He must, on a request made by him, in
that behalf, be supplied with the copies of the statements of the witnesses, recorded during
the preliminary inquiry, particularly, if those witnesses are proposed to be examined at
departmental trial. 3

2
Shanta Kumar Vs. Council of Scientific and Industrial Research

3
State of U.P. Vs. Shatrughan Lal, AIR 1998, SC 3038: (V.K. Nigam Vs State of M.P., AIR 1997 SC 1358)

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 COLONEL DR.JEPPIAAR 2ND ALL INDIA WOMEN NATIONAL MOOT COURT COMPETITION,
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7. Denial of the opportunity to cross-examine the witnesses of the complainant as well as to lead
defense and the above directions to the ICC has been assailed by the appellant before us on
the ground that the substantive report is wholly vitiated if he is denied the said opportunity. It
is submitted that a meaningful right to cross-examine the witnesses of the complainant and to
lead defense is an essential component of a fair inquiry which would be in consonance with
the principles of natural justice. In support of the submission, Mr. Nikhil Nayyar, learned
counsel for the appellant has drawn our attention to the pronouncement of this Division
Bench reported at B.N. Ray vs. Ramjas College & Ors.4
8. The Supreme Court, in Chamoli District Co-operative bank ltd. Vs. Raghunath Singh Rana 5
has reiterated that the compliance of principles of natural justice by the Employers in
Disciplinary proceedings is not a mere formality, especially when the statutory provisions
specifically provides that disciplinary proceedings shall be conducted with due observations
of the principles of natural justice.

[1.4] Violation of the principle of law and natural justice.

9. Care should be taken as to avoid any genuine suspension of bias. The inquiry officer must be
a person with an open and free mind, who can act objectively, free from any kind of
bias.6Section 7(4) of the POSH Act provides that both the parties, the aggrieved woman and
the respondent, must be given a fair opportunity to present their respective cases, and the
respondent should be allowed to cross-examine the witnesses of the complainant.
10. Natural justice for holding of inquiries for misconduct or even under Sexual Harassment of
Women at Workplace (PP&R) Act is identified with the two constituents of a fair hearing,
which are the rule against bias (nemo iudex in causa sua, or "no man a judge in his own
cause"), and the right to a fair hearing (audi alteram partem, or "hear the other side"). While
holding an inquiry under the Act, the Internal Committee is required to adhere to the
'principles of natural justice' while making the inquiry - Rule 7(4).
11. The principles of natural justice are those rules which have been laid down by the courts as
being the minimum protection of the rights of the individual against the arbitrary procedure
that may be adopted by a judicial or quasi-judicial authority while making an order affecting
those rights. These rules are intended to prevent such authority from doing injustice.

4
B.N. Ray Vs. Ramjas College & Ors., 2012 (130) DRJ 277 (DB)

5
Chamoli District Co-Operative Bank Ltd Vs. Raghunath Singh Rana, CA no 2265 of 2011
6
S.Parthasarathy Vs. state of A.P AIR 1973 SC 2701

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MEMORIAL ON BEHALF OF THE APPELLANT
 COLONEL DR.JEPPIAAR 2ND ALL INDIA WOMEN NATIONAL MOOT COURT COMPETITION,
2019

12. The principles of natural justice are neither new nor limited in their applicability and indeed
even God, - and certainly, therefore civilized man made after his image - is bound by it. In R
v. Chancellor of Cambridge, 7 1723-1 Strange 557 it has been observed :
"The laws of God and man both give the party an opportunity to make his defense if
he has any. I remember to have heard it observed by a very learned man upon such an
occasion, that even God himself did not pass sentence upon Adam before he was called upon
to make his defense. Adam (says God) where art thou? Hast thou not eaten of the tree,
whereof I commanded thee that thou should not eat? And the same question was put to Eve
also."
13. Rule 7 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Rules, 2013, which reads that the “Complaints Committee shall make inquiry into
the complaint in accordance with the principles of natural justice”.8
[1.5] Audi Alteram Partem
14. The principles of natural justice include two legal maxims: “Nemo in propria causa judex,
esse debet” or the rule against bias which bars persons who may be witnesses, friends, or
others interested in the outcome from participating in the inquiry process as part of the
complaints committee, and “audi alteram partem” means that a fair opportunity must be
given to be heard to any person who would be affected by the decision of the committee and
not condemn them unheard.
15. The Court held that the procedure established by law (as enjoined by Article 21 of the
Constitution) should be “fair, just and reasonable” and could not be “fanciful, oppressive or
arbitrary”9. Thus, a fair hearing would require adequate opportunity to defend oneself. The
procedure followed by the Rajendra Medical College, therefore, would not be likely to pass
muster today. However, in practice, this is the procedure mostly followed by committees.
16. When allegations of bias are received against an Inquiring Authority, such Inquiring
Authority is required to stay the inquiry till the Disciplinary Authority takes a decision on the
allegations of bias. Further, if allegations of bias are established against one member of the
Committee on this basis, that Committee may not be allowed to conduct the inquiry. 10
17. As for compliance with the Wednesbury Principles, interference was held to be not
permissible unless any of the following conditions were satisfied: (a) the Order was contrary

7
R. Vs. Chancellor of Cambridge
8
Ashok Kumar Singh Vs. university of Delhi and Ors
9
Maneka Gandhi Vs. Union of India 1978
10
Tejinder Kaur Vs. Union Of India & Ors. on 12 December, 2017

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to law, (b) relevant factors were not considered, (c) irrelevant factors were considered and (d)
no reasonable person would have taken such a decision. 11The High Court of Delhi ruled that
if the employer believes that an allegation of bias is true, then a new IC needs to be formed
and the proceedings should start afresh12
18. The charges levelled against the petitioner were false and frivolous and the enquiry
conducted against him was biased in nature. The culpable intention of the accused is the crux
of the matter. The reaction of the women is very relevant but its absence is not always
decisive.13
19. Even the intentional causing of harm is here excused because of its triviality. The word harm
here means injury of any kind, including injury of mind, injury of property, injury of body,
“no person of ordinary sense and temper,” and belonging to the same class as the complainant
and under the circumstance would complain. Two friends may take liberties with each other
as strangers they would have resented.

[1.6] mitigating factors enough to reinstate in case of serious misconduct

20. The employee appealed to the full bench. The majority held that the dismissal was manifestly
harsh in light of the length of the employee's service, his exemplary record and his personal
circumstances. The employee was 55 and was likely to have difficulty securing alternative
employment, particularly in the coal industry having been dismissed for a safety breach, let
alone at the same level of remuneration. In ordering the employee's reinstatement, the
majority said the employee was the primary breadwinner, the dismissal would cause his
family serious hardship and his superannuation would be substantially adversely affected.
21. The employer's sanction of dismissal was found to be manifestly harsh in the circumstances,
although it was conceded that the conduct warranted disciplinary action given the employer's
statutory OHS obligations. While the majority made an order to restore lost pay, the
equivalent of three months' pay was deducted to vindicate the importance of the employer's
policies. 14

11
Om Kumar Vs. Union of India (2001) 2 SCC 386
12
Tejinder Kaur Vs. UOI, 2017 SCC
13
Aman kumar Vs. state of Haryana, 2004 Cr LJ 13 N 99 (SC)
14
Lawrence v Coal & Allied Mining Services Pty Ltd t/a Mt Thorley Operations/Warkworth

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 COLONEL DR.JEPPIAAR 2ND ALL INDIA WOMEN NATIONAL MOOT COURT COMPETITION,
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___________________________________________________________________________
[II] WHETHER THE QUANTUM OF PUNISHMENT IS EXCESSIVE WARRANTING LESSER

PENALTY IN PLACE OF DISMISSAL FROM SERVICE?

___________________________________________________________________________
22. The inquiry committee were vitiated by bias on the part of its member Catherine who
influenced the respondent on the one hand to give complaint against the appellant and
influenced the internal committee members on the other hand to submit findings against the
appellant. The labour court ordered the reinstatement of service of the appellant in his
original employment with continuity of service but without back wages holding that the
workman deserved sympathy and an opportunity should be given to him reform himself
considering that the appellant has got more than 25 years of service before retirement and
therefore the punishment of dismissal was excessive in nature.
[2.1]Gravity of misconduct:-
23. In Bharat Forge Co. Ltd. v. Uttam Manohar Nakat , this Court again reiterated that the
jurisdiction to interfere with the punishment should be exercised only when the punishment is
shockingly disproportionate and that each case had to be decided on its facts. 15
24. If the Labour Court after evaluating the gravity of misconduct held that punishment of
termination of service is disproportionately heavy in relation to misconduct and exercise its
discretion, this Court in the absence of any important legal principle would not undertake to
re-examine the question of adequacy or inadequacy of material of interference by Labour
Court. We are, therefore, disinclined to interfere with the order passed by the Labour Court.
Accordingly, the appeal fails and is dismissed with costs quantified at Rs. 2500. 16
25. The Orissa high court also ruled that merely putting hand on the belly of a female is public by
itself does not amount to an act of outraging modesty of a woman within the meaning of
section 354. For convincing him under section 354, it is required to prove that his act of
touching the belly was deliberate and with culpable intention. 17Hence, an act of pulling a
woman, removing a dress coupled with a request for sexual intercourse, amounts to outraging
modesty of a woman as the act exhibits his determination and desire. 18

15
Bharat Forge Co. Ltd. v. Uttam Manohar Nakate
16
Management of Hindustan Machine Tools Ltd., Bangalore Vs. Mohd. Usman
17
State of Rajasthan Vs. Hetram (1982) Cri LR 522 Raj
18
Rameswar Vs. state of Haryana (1984) Cr LJ 786 ,(P&H)

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26. "In Bhagat Ram vs. State of Himachal Pradesh, 19 this Court held :It is equally true that the
penalty imposed must be commensurate with the gravity of the misconduct, and that any
penalty disproportionate to the gravity of the misconduct would be violative of Article 14of
the Constitution.

[2.2] Proportionality of the punishment imposed:-

27. On proportionately of punishment imposed, Mr. Salve cited Chairman and Managing
Director, United Commercial Bank & Ors. vs. P.C. Kakkar20. In the above case it was
observed:- "In B.C. Chaturvedi vs. Union of India 21, it was observed :

18. A review of the above legal position would establish that the disciplinary authority, and
on appeal the Appellate Authority, being fact-finding authorities have exclusive power to
consider the evidence with a view to maintain discipline. They are invested with the
discretion to impose appropriate punishment keeping in view the magnitude or gravity of the
misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot
normally substitute its own conclusion on penalty and impose some other penalty. If the
punishment imposed by the disciplinary authority or the Appellate Authority shocks the
conscience of the High Court/Tribunal, it would appropriately mould the relief, either
directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten
the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment
with cogent reasons in support thereof."

28. In the normal course if the punishment imposed is shockingly disproportionate it would be
appropriate to direct the disciplinary authority or the appellant authority to reconsider the
penalty imposed. 22

29. In Om Kumar v. Union of India,23 the Supreme Court considered the applicability of the
doctrine of 'Proportionality' in the context of Article 14 of the Constitution, referred to the
judgments in Ranjit Thakur v. Union of India 24, B.C. Chaturvedi v. Union of India 25 and held:

19
Bhagat Ram Vs. State of Himachal Pradesh,
20
Chairman and Managing Director, United Commercial Bank & Ors. Vs. P.C. Kakkar, 2003(4) SCC 364.
21
B.C. Chaturvedi Vs. Union of India, 1995(6) SCC 749; Ganesh Santa Ram Sirur Vs State bank of India & ors,
Appeal (Civil) 7058 of 2002.
22
Chairman and Managing Director, United Commercial Bank and Others Vs. P.C.Kakkar ;Balbir Chand Vs.
Food Corpn. Of India, (1997)3 SCC 371, !997 SCC (L &S) 808.
23
Om Kumar Vs. Union of India (2001) 2 SCC 386

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(1) In this context, we shall only refer to these cases. In Ranjit Thakur v. Union of India, this
Court referred to "proportionality" in the quantum of punishment but the Court observed that
the punishment was "shockingly" disproportionate to the misconduct proved. In B.C.
Chaturvedi v. Union of India, this Court stated that the Court will not interfere unless the
punishment awarded was one which shocked the conscience of the Court. Even then, the
Court would remit the matter back to the authority and would not normally substitute one
punishment for the other. However, in rare situations, the Court could award an alternative
penalty. It was also so stated in Ganayutham's case26”.

30. Therefore it is pertinent note that the appellant has got more than 25 years of services before
retirement and will have less opportunity to get a job for being blamed a serious misconduct
upon him. Dismissal of the service will led a great loss for the family of the and it will affect
the career on whole.

24
Ranjit Thakur Vs. Union of india, 1988 Crl.L.J. 158
25
BC.Chaturvedi Vs. Union of India, 1995(6) SCC 749
26
Union of India Vs. G.Ganayutham, (2000) 11 LLJ 648 SC; Johnson and Johnson Ltd Vs. Ganjendra Singh
Rawat, W.P.(C) 7826/2008 & Crl. MA 15112/2008.

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_______________________________________________________________________
[III] WHETHER THE DEFENSE PROVIDED UNDER SECTION 95 OF WPC CAN BE INVOKED BY
ABDUL FOR DISCIPLINARY PROCEEDINGS AGAINST HIM & THE EMPLOYERS PLEA OF LOSS OF

CONFIDENCE IS SUFFICIENT FOR THE REFUSAL TO REINSTATE HIM?

______________________________________________________________________
31. The appellant had no intention to harass or cause any harm to the respondent and acted in
good faith which cannot be construed as misconducts for the purpose of initiating displinary
proceedings. The appellant also took the plea that the inquiry proceedings were vitiated by
bias on the part of its member Catherine who influenced Bavithra, no reasonable person
would complain of such harm. And that employer cannot plea of loss of confidence is
sufficient for not reinstating the appellant as it was the very first complaint against the
appellant and would cause great suffer to their whole family.

95. Act causing slight harm.—Nothing is an offence by reason that it causes, or that it is
intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight
that no person of ordinary sense and temper would complain of such harm.

[3.1]Reinstatement should not be denied due to a loss of trust and confidence.

32. The test is whether the act of the employer is bona fide. If it is not, and is a colourable
exercise of the power under the contract of service or standing orders, the tribunal can discard
it and in a proper case direct reinstatement. 27

33. Much has been written on trust and confidence in the context of terms implied into the
employment contract. This part will discuss the loss of trust and confidence as a relevant
consideration in denying reinstatement, on which there is considerably less literature.
Employers frequently rely on the loss of trust and confidence to argue that reinstatement is
inappropriate. The key conclusions of this analysis are: that whether reinstatement should be
denied due to a loss of trust and confidence is a largely objective question, despite trust and
confidence being subjective concepts in ordinary language; the relevance of such loss is
conditioned by the purposes of the Fair Work Act and the norms of conduct it creates; and a

27
Sylvester & Co. Vs Their Workman thro’ Transport and others, 2008 (3) BomCR 395, (2008) ILLJ 546 Bom

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more structured approach would assist in ensuring that these objective principles are properly
applied. 28

34. Two aspects of this passage are worth considering in further detail. First, the Court said that
‘whether there has been a loss of trust and confidence is a relevant consideration’94 in
determining whether reinstatement should be denied. It did not say that loss of trust and
confidence is a criterion for reinstatement being denied. Loss of trust and confidence is
neither necessary nor sufficient for a denial of reinstatement. Even if the employer establishes
that there has been a loss of trust and confidence, it does not necessarily follow that
reinstatement must be denied. The overall test remains the one created by the statute — it
must be ‘inappropriate’ to grant reinstatement, and any loss of trust and confidence must,
even if it is a ‘relevant’ loss of trust and confidence, be balanced against other considerations
in determining whether reinstatement is inappropriate.29

35. Second, the Court said that ‘such loss of trust and confidence [must be] soundly and
rationally based’. This principle applies an objective overlay to the notion of trust and
confidence. In ordinary language, trust and confidence are subjective notions. Whether one
has trust and confidence in another person depends entirely on one’s actual mental attitude to
that person. The fact that one’s loss of trust and confidence is unfounded or unreasonable
does not change the fact that one has lost it. Perkins qualifies this position by considering that
an irrational or unsound loss of trust and confidence is of no relevance to the question of
reinstatement.

[3.2]The action taken by the employer is ultra vires of the principles of natural justice.

36. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from
service cannot easily be measured in terms of money. With the passing of an order which has
the effect of severing the employer employee relationship, the latter’s source of income gets
dried up. Not only the employee, but his entire family suffers grave adversities. The
reinstatement of such an employee, which is preceded by a finding of the competent
judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the

28
Australasian Meat Industry Employees’ Union Vs. G & K O’Connor Pty Ltd [2000] FCA 627 (12 May 2000)
(‘AMIEU’); Nguyen Vs Vietnamese Community in Australia [2014] FWC 4314 (8 July 2014) (‘Nguyen’);
Farmer v KDR Victoria Pty Ltd [2014] FWC 6539 (22 September 2014) (‘Farmer’); Goodwin Vs. Shanaya Pty
Ltd [2016] FWC 4317 (7 July 2016) (‘Goodwin’); Millard Vs. K & S Freighters Pty Ltd [2017] FWC 105 (6
January 2017) (‘Millard’).
29
Perkins (1997) 72 IR 186, 191.

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relevant statutory provisions or the principles of natural justice, entitles the employee to claim
full back wages, subject to the employer pleading and proving that during the intervening
period the employee was gainfully employed and was getting the same emoluments. 30

37. In Depot Manager, Andhra Pradesh State Road Transport Corporation v. P. Jayaram Reddy 31,
this Court noted that the services of the respondent were terminated because while seeking
fresh appointment, he had suppressed the facts relating to earlier termination on the charges
of grave misconduct. The Labour Court did not find any fault with the procedure adopted by
the employer but opined that dismissal was very harsh, disproportionate and unjustified and
accordingly exercised power under Section11-A of the Industrial Disputes Act, 1947 for
ordering reinstatement with back wages. This Court referred to the judgments in P.G.I. of
Medical Education & Research, Chandigarh v. Raj Kumar 32 and J.K. Synthetics Ltd. v. K. P.
Agrawal33 and held that the Labour Court was not justified in awarding back wages.

38. Therefore it is pertinent to note that the appellant can invoke section 95 of Woodlands penal
code as no harm which is slight and of no serious importance should be taken up as a case for
consideration and therefore the justification made by the displinary committee is completely
against the law of natural justice. Loss of confidence cannot be a valid ground for the
employer to plead for dismissal of service and not to reinstate which indeed an ultra vires act.
The latter’s source of income gets dried up. Not only the employee, but his entire family
suffers grave adversities, therefore the appellant should be reinstated back to services.

30
Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (d.ed) and others (Civil Appeal No.
6767 of 2013)
31
Depot Manager, Andhra Pradesh State Road Transport Corporation Vs. P. Jayaram Reddy
32
Chandigarh Vs. Raj Kumar,
33
J.K. Synthetics Ltd. Vs. K. P. Agrawal

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___________________________________________________________________________

[IV] WHETHER THE EMPLOYER IS JUSTIFIED IN REFUSING TO PROVIDE CCTV CAMERA

FACILITIES FOR SAFE WORKING ENVIRONMENT?

___________________________________________________________________________
39. It is humbly submitted before this hon’ble Court that the employer is justified in refusing to
provide CCTV camera facilities on the ground that the right to safe working environment is
not violated and right to privacy is looked upon. It is also submitted that the industrial
establishment was only set up only 3 years back and therefore it will cause heavy financial
burden for the employer.
[4.1] It can be costly affairs:-

40. While dummy cameras may not be expensive, the real ones costs hundreds, even thousands
of dollars depending on the features and the number of cameras and monitoring systems you
buy. Getting them installed and their maintenance means added costs. If you’re thinking of
installing them yourself, lay that idea to rest unless you have good knowledge of wiring
systems or you may end up damaging the cameras.
41. Wireless security systems are technologically advanced and are new in the market. Because
of these factors, their demand is higher than the traditional security systems. These systems
come with all features that are found in the standard options, including control panels, remote
key panels, sirens, and sensors. Each feature, however, also include a radio transmitter to
facilitate the wireless nature of these systems.

[4.2] Privacy is an issue:-

42. There have been a few instances in the past where security cameras have stirred up
controversies, especially in professional setups. There have been cases where employees have
objected to being under constant surveillance without their permission and citing the
‘invasion of privacy’ as the reason. A few have also resorted to taking legal action against
their employers in relation to this.
43. Critics of security camera systems have taken offense to them being placed in offices and
argued that doing so implies that the employer has either already assumed or is convinced
that his employees are up to no good and will do something wrong.
When we, as users of security cameras, try to keep ourselves updated on the latest in security
systems, we should not forget that intruders and criminals are doing the same too. A clever

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trespasser will probably know all about them and may have figured out a way to go
undetected. Further, tech-savvy criminals might have understood the technology and worked
out ways to disable/disconnect them from their power source. Plus, if he detects your cameras
as fake/dummies, they can be utterly useless in any crime prevention. In worst cases, hackers
can play havoc with your security camera system by using the Internet and use them to spy
on you instead. This makes security cameras vulnerable to damage and/or misuse.

[4.3] Can’t stop misconduct inspite of installing Cameras:-

44. Cameras enable users to record footage for later viewing, and to help nab criminals, and
receive justice from the law. They cannot, however, stop a crime when it is in progress. They
do not alert neighbors or the police like an alarm system would. This means that you will
incur losses even as you run to the court, make insurance claims and reorder stolen inventory,
which may no longer make you feel absolutely safe and even cause you to lose faith in them.

45. Under Article 35 GDPR, any excessive use of CCTV monitoring to profile employees is
considered “high risk” profiling in line with guidance issued by the Article 29 Working Party.
This requires a Data Protection Impact Assessment (“DPIA”). A DPIA considers whether the
surveillance is necessary and proportionate to what an employer is seeking to achieve in light
of the risks to the rights of data subjects, including consideration of any safeguards or
security measures that the controller will put into place.

46. A recent judicial decision of the European Court of Human Rights (“ECtHR”) has reinforced
the importance of applying the proportionality principle under the current Data Protection
Directive when assessing the lawfulness of using CCTV surveillance to monitor employees.
The ECtHR hears matters concerning The European Convention on Human Rights (ECHR),
an international treaty that protects human rights and fundamental freedoms in Europe. 34

47. The ECtHR decision in López Ribalda and others v Spain held illegal an employer’s covert
use of video surveillance in a chain of Spanish supermarkets and reaffirmed the principles of
transparency, proportionality and lawful monitoring.

48. Cameras must be used proportionately and in a manner that respects the employee’s privacy.
The cameras must be used for legitimate purposes, such as keeping employees safe,
disciplinary supervision, assuring quality of service or protecting business

34
López Ribalda and others Vs. Spain, ECHR 14.

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property. Exaggerated use of cameras in a manner that disproportionately prejudices an

employee will expose employers to administrative, criminal and civil sanctions and may
even constitute a circumstance by which an employee can resign and be deemed as having
been terminated by the employer (thus, entitling him to severance payments).

49. CCTV cameras are good in schools or on the road or in hospitals. But in the factory, it is
torture. Even at the main gate it makes sense - so that they can check if anybody is stealing
things. But on the floor in the batches, it becomes very hard for us to talk. If we want to talk
about work related things like the union also it is hard

50. The range of views is unsurprising: as surveillance is usually multi-purposed, it comes with a
range of opportunities and disadvantages, which often makes it hard to either support or
reject it wholesale.35

35
Rosenblat & Kleese & boyd 2014, p. 9
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PRAYER

WHEREFORE, in light of the issues raised, arguments advanced and authorities cited, it is

humbly prayed before this Hon’ble Tribunal to order that:

1. The inquiry proceedings by the internal Committee and the subsequent proceeding

against Abdul are in violation of Principle of law and natural justice. And the

quantum of punishment is excessive in nature and therefore the Appellant should be

given reinstatement of service.

2. The right to safe working environment was not violated and the installation of the

CCTV camera at many places of the establishment would cause heavy financial

burden.

AND/OR pass any other order or orders as this Hon’ble Court may deem fit and proper in the

circumstances of the case and in the interest of Justice, Equity and Good Conscience.

All of which is most humbly and respectfully submitted.

Place: ________, State of Apple Island S/d_____________

Date: 26th April, 2019 COUNSEL FOR THE APPELLANT

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