5TH NOVICE MOOT COURT COMPETITION,2018

IN THE HON’BLE SUPREME COURT OF

CENTRAL PERK

APPEAL NO. /2018

IN THE MATTER OF

DR GREGORY HOUSE
…………………………………………………………………………………..PETITIONER

V.

UNION OF CENTRAL PERK & PLUS

PHARMA…………………………………………………RESPONDENTS

MEMORIAL ON BEHALF OF RESPONDENTS

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS……………………………………………………………

……….

STATEMENT OF ISSUE……………..………………………………..…………….….

…..

………………………………………………………

1.WHETHER THE WRIT PETITION FILED BY DR. GREGORY HOUSE IS

MAINTAINABLE OR NOT?......................................................................................

[1.1] The Right to Privacy under Artilce 21 is not

Absolute…………………………………………………

[1.2] No discrimination under Article 14……………………………………………………

2.WHETHER SECTION 377 OF THE CENTRAL PERK’S PENAL CODE 1860

VIOLATES ARTICLE 21 OF THE CENTRAL PERK’S CONSTITUTION OR
NOT?................................................................................................................................

[2.1] PRESUMPTION IS ALWAYS IN FAVOUR OF CONSTITUTIONALITY OF A

STATUTE……………………………………………………………………….

[2.2] ARTICLE 21 OF THE CONSTITUTION HAS NOT BEEN

VIOLATED………………………………………………..

[2.2.1] Right to Privacy is not absolute………………………………………..

[2.2.2]Section 377 curtails spread of HIV/Aids and furthers public health……………….

[3].WHETHER THE TERMINATION OF EMPLOYMENT OF DR. GREGORY

HOUSE BASED ON CONTRACT IS VALID OR NOT?

[3.1] Absence of factual foundation

[3.2]Free Consent[3.3]Ordinary Case of Contract

LIST OF ABBREVIATIONS
 & And
CrPC Criminal Procedure Code, 1973
AIR All India Reporter
BCI Bar Counsil Of India
IPC Indian Penal Code, 1860
IEA Indian Evidence Act,1872
CrLJ Criminal Law Journal
Ed. Edition
ILR India Law Report
Ors. Others
p. Page
S. Section
SC Supreme Court
SCC Supreme Court Reports
SCR Supreme Court Reporter
u/s Under Section
v. Versus
DEL Delhi
ICCPR International Covenant on Civil and Political
Rights

INDEX OF AUTHORITIES

 CASES REFERRED

1.Muneeb-Ul-Rehman Haroon v. Govt. Of J&K State,(1984) 4 SCC 24.

2. K.S. Puttaswamy v. Union of India
3. Mr. X v. Hospital Z
4. Gobind v. State of M.P
 5. Devadasan v. Union of India, AIR 1964 SC 179.
6. Thiru Muruga Finanace v. State of Tamil Nadu, AIR 2000 Mad 137.
7. Lawrence v. Texas
8. Venkateshwara Theatre v. State of Andhra Pradesh And Ors., 1993 SCR (3) 616.
9. Chiranjit Lal Chowdhary v. Union of India, AIR 1951 SC 41.

 BOOKS REFERRED
 P.M. BAKSHI , THE CONSTITUTION OF INDIA(13th ed., 2016).
 ASIM PANDAYA, WRIT AND OTHER CONSTITUTIONAL REMEDIES(1st ed.,
2009).
 K.D. GAUR, THE INDIAN PENAL CODE(4th ed., 2009).
 Dr. V.G. GOSWAMI, LABOUR AND INDIAN LAWS(10th ed., 2015).

 LEXICONS
 Black’s Law Dictionary, 10 th Edition.
 Oxford Advanced Learner’s Dictionary, 6 th Edition.

 STATUES
1. INDIAN EVIDENCE ACT, 1872.
2. THE CRIMINAL PROCEDURE CODE, 1973.
3. INDIAN PENAL CODE, 1860.
4. INDIAN COTRACT ACT,(14,19A,19)
5. COMPANY’S ACT(58, 1956)
6. INDUSTRIAL DISPUTE ACT
7. THE CONSTITUTION OF INDIA

 WEBSITES
 SCC ONLINE
 MANUPATRA

STATEMENT OF JURISDICTION

It is humbly submitted that the Petitioner has invoked the jurisdiction of the Hon’ble Supreme
Court of Central Perk under Article 32 of Constitution of Central Perk in the instant case of
Dr.Gregory House v. Union of Central Perk & Ors.The Respondents humbly submits to
that.
 STATEMENT OF FACTS

1.Central Perk is the fast growing nation with a ranking of fifth in terms of area and
population according to recent census. Country is newly established democracy with longest
written constitution. The Constitution of the country has given paramount importance to
“parity” amongst the citizens.

2.     Country intended to foster trade and employment in the country, thereby legalisation
through its vested powers strengthened the laws relating to trade and employment.

3.     Plus Pharma Ltd, a very well-known ‘government’ pharmaceutical company had

captured a large share of the target market. After 10 successful years in the industry, the
company released an advertisement on 1st February 2016 to hire qualified ‘Medical
Representative’ forextending the trade of company.

4.     Dr. Gregory House was appointed as a Medical Representative with his given
proficiency in the field of medicine and meeting the requirements of the company. The date
of joining was 18th February 2016.

5.     Gregory[1] joined and started representing the company on the joining date, i.e.

18th February 2016. Under the leadership of Gregory, the company had a surge of 3% in
volume of sales; he played a noteworthy and laudable role in increasing the sales. He
received great appreciation and applause from the director of the company, Mr Harvey
Spectre.

6.     Gregory assisted in ameliorating the situation when the company’s goodwill was at stake
due mislabelling of medicines which caused disturbance in sleep cycles of the people who
purchased the medicine. There was probability that company could have been sued by the
retailer, still nothing such happened because of medical representatives good behaviour
towards the retailer.

7.     Gregory had an excellent command over his language, which helped in persuading other
small pharmacies and wholesalers to procure goods from the company. His diligence and
persuading skills made him different and epitomised him as best possible medical
representative a company could have.

8.     Mr Gregory’s action was misconstrued by rest of the employees and such action was
communicated in a distorted manner to the employer. The communication of this action can
to knowledge of rest of the employee of him having illicit relationship with owners of certain
pharmaceutical companies.

9.     Mr Harvey[2], the director of the company called Gregory and accused him for having
illicit relationship during the course of employment. He further accused him, such actions by
him towards the company owners is leading to decrease of sales with whom the companies
contracted.

10.  The Salary was overdue to Gregory. When he sent several remindersto the employer
but his efforts were unrecognized. On 20 th May 2016 at 9:30 PM , Gregory posted
following statements on social networking platforms :

a.     “It is ironical that Harvey accuses me of maintaining illicit relations with

others when he himself approached me for the same.”
 b.     “He is misusing his position by not crediting my salary in order to satisfy
his personal grudges”.

11.  Harvey was a famous personality and such statements lead to severe criticism for Harvey
in terms of reputation and Plus Pharma Ltd. both in terms of sales and goodwill.
Subsequently there was no company which wanted to enter into new contracts with Plus
Pharma Ltd.

12.  Harvey terminated the contract of employment with Gregory supporting by a stipulating

clause

  i.         “If the sales of the company decreases because of any employee, directly or
indirectly, would lead to the termination of such contract with that employee and the
employee will be fired”

13.  A suit was filed by Harvey in district court on 10 th June 2016 for defamation and asked
him to pay compensation for losses occurred to the company. The Court held the judgment in
favour of Mr. Harvey along with direction to Gregory to pay Rs. 5 lakhs to Harvey for
personal defamation and Rs. 10 Lakhs for company’s loss of goodwill and ‘anticipated’ sales
and court also ruled that termination is valid because terms of the contract were non-
negotiable.

14.  In an exclusive interview on 5th October 2016, he confessed that even if he had relations
with other males, it won’t affect Harvey and the employment contract.

15.   10th December 2016, a writ petition was filed by Gregory against Union of Central Perk
and Plus Pharma Ltd, on grounds that he has faced huge social ordeals and loss of abilityto
earn livelihood owing to unconstitutional statutes.

SUMMARY OF ARGUMENTS

I. Whether the writ petition filed by Dr. Gregory House is maintainable or not?

It is humbly submitted before the Hon’ble Court that the writ petition filed by Dr
Gregory House is not maintainable1 under Article 32 of the Constitution of India
which guarantees the protection of Fundamental Rights enshrined under Part III of
the Constitution. The Right to Privacy forming an essential part of the Right to life
is not absolute and maybe lawfully restricted for prevention of crime or disorder
and for the protection of health, morals, rights and freedoms of others. For
violation of the principle of equality there must be some substantive
unreasonableness. However, since the test of equality and test of reasonableness
have been passed there has been no discrimination under Article 14 of the

1
Constitution of Central Perk is in Pari Materia to the Constitution of India(herein referred as Constitution).
 Constitution and as such the aforementioned have been enacted to protect the
interests of sexual minorities.
II. WHETHER SECTION 377 OF THE CENTRAL PERK’S PENAL CODE
VIOLATES ARTICLE 21 OF THE CENTRAL PERK’S CONSTITUTION OR NOT?

It is humbly submitted before the Hon’ble Supreme Court that Section 377, CPPC do not
violate article 14 as a reasonable classification has been made and the operation of article 19
has been attracted. For violation of the principle of equality there must be some substantive
unreasonableness. However, since the test of equality and test of reasonableness have been
passed, Sec 377 do not violate article 21. The Right to Privacy forming an essential part of
the Right to life is not absolute and maybe lawfully restricted for prevention of crime or
disorder and for the protection of health, morals, rights and freedoms of others.

ISSUE III:- Whether the termination of employment of Dr. Gregory House based on
contract is valid or not?
The Respondent humbly submits that the termination of employment of Dr. Gregory House
based on contract is valid under Article 14,16,311 of Constitution of India

ARGUMENTS ADVANCED
ISSUE1 :- Whether the writ petition filed by Dr. Gregory House is maintainable or not?
The respondent contends that there has been no violation of Right to Privacy and
Discrimination against Dr. Gregory House. The writ petition is not maintainable against
Union of Central Perk and the Plus Pharma because they do not involve the violation of any
Fundamental Rights of the petitioner.2

1.1]The Right to Privacy under Artilce 21 is not Absolute.

A.The right to Privacy is not absolute and may be lawfully restricted for the
prevention of crime, disorder or protection of health or morals or protection of
rights and freedom of others.
B.In K.S. Puttaswamy v. Union of India3 the court observed,”The individual is not
a hermit.The lives of individuals are as much a social phenomenon.Individuals are
constantly engaged in behavioural patterns and in relationship impacting on the
rest of society.Communicational privacy which is reflected in enabling an
individual to restrict access to communications or control the use of information
which is communicated to the third parties.Informational privacy which reflects
an interest in preventing information about the self from being disseminated and
controlling the extent of access to information.”
C.In Mr. X v. Hospital Z4 this court observed, as one of the basic Human Rights,
the right of privacy is not treated as absolute and is subject to such action as may
be lawfully taken for the prevention of crime or disorder or protection of health or
morals or protection of rights and freedoms of others.
D.In Gobind v. State of M.P.5 the Court observed: “There can be no doubt that
privacy-dignity claims deserve to be examined with care and to be denied only
when an important countervailing interest is shown to be superior. If the Court
does find that a claimed right is entitled to protection as a fundamental privacy
right, a law infringing it must satisfy the compelling state interest test. Then the
question would be whether a state interest is of such paramount importance as
would justify an infringement of the right. Obviously, if the enforcement of
morality were held to be a compelling as well as a permissible state interest, the
characterization of the claimed rights as a fundamental privacy right would be of
2
Muneeb-Ul-Rehman Haroon v. Govt. Of J&K State,(1984) 4 SCC 24.
3
(2017)10 SCC 1.
4
(1998) 8 SCC 296.
5
1975 CrLJ 1111.
 far less significant. In the instantaneous matter the Right to Privacy of
homosexuals is restricted for protection of state interest which does not suffer
from any vice. Moreover, the freedom and rights of others are of such importance
that mere transgression of the right to privacy of a minority would amount to a
compelling state interest. The dissenting opinion given by Justice Scalia and
Justice Thomas in Lawrence v. Texas6 stated that promotion of majoritarian
sexual morality was a legitimate state interest.
1.2] No discrimination under Article 14.
A.Unrecognized can be defined as an act where people are not aware of or do not
realize is important.7In an ordinary sense,unrecognized refers to the state of being
unaware of something.
B.It is humbly submitted that in case,the Appelant sent several reminders to the
employer but his efforts were “unrecognized”.8 And which clearly indicates that
the Plus Pharma was not aware of the fact that his employee’s account was not
credited with the requisite amount.
C.It is contended by the defendant that the appelant’s contract got terminated by
the respondent 2 by stipulating a clause of employement as the sales of the
company decreased indirectly by the appellant.9
D.If the Hon’ble Court still holds that these arguments are not sufficient then It is
further submitted that the principle of ‘equality before the law’ does not require
absolute equality or equality among unequals.10 Mere differentiation or of inequality
treatment does not per se amount to discrimination and before considering inequality of
treatment, the object of the legislation has to be considered.11
Just as difference in treatment of persons similarly situate leads to discrimination,
so also discrimination can arise if persons who are unequal, i.e. differently placed,
are treated similarly. In such a case failure on the part of the legislature to classify
the persons who are dissimilar in separate categories and applying the same law,
irrespective of the differences, brings about the same consequence as in a case
where the law makes a distinction between persons who are similarly placed. A
law providing for equal treatment of unequal objects, transactions or persons
6
539 U.S. 558 (2003).
7
Oxford Advanced Learner’s Dictionary (6th ed.,2003)
8
Moot Preposition,pg
9
Moot Preposition,pg
10
Devadasan v. Union of India, AIR 1964 SC 179.
11
Thiru Muruga Finanace v. State of Tamil Nadu, AIR 2000 Mad 137.
 would be condemned as discriminatory if there is absence of rational relation to
the object intended to be achieved by the law.12Article 14 forbids class legislation
but does not forbid classification which rests upon reasonable grounds of
distinction.13By the process of classification, the State has the power of
determining who should be regarded as a class for purposes of legislation and in
relation to a law enacted on a particular subject. This power, no doubt, in some
degree is likely to produce some inequality;but if a law deals with the liberties of a
number of well-defined classes, it is not open to the charge of denial of equal
protection on the ground that it has no application to other persons.14
ISSUE 2:- WHETHER SECTION 377 OF THE CENTRAL PERK’S PENAL CODE
VIOLATES ARTICLE 21 OF THE CENTRAL PERK’S CONSTITUTION OR NOT?

It is submitted that as general rule of interpretation the presumption is always in the favour
of the constitutionality of the legislation unless proved otherwise.The respondent contends
that Sec 377, IPC which is not violative of the fundamental rights enshrined in part III of the
Constitution of India. It is contended so for the reason that The Act does not violate the equal
protection doctrine of Article 14 , the test of reasonableness of Article 19 , and protects the
right to life under Article 21.

2.1 PRESUMPTION IS ALWAYS IN FAVOUR OF CONSTITUTIONALITY OF A

STATUTE

It is submitted that the presumption is always in the favour of constitutionality of an

enactment15and it is for the petitioner to show how his fundamental right has been infringed,
failing which, his petition will be dismissed16 It must be presumed that the legislature
understands and correctly appreciates the need of its own people, that its laws are directed to
problems made manifest by experience and that its discriminations are based on adequate
grounds.It is neither in doubt nor in dispute that Clause 1 of Article 13 of the Constitution of
India in no uncertain terms states that all laws in force in the territory of India immediately
before the commencement of the Constitution, in so far as they are inconsistent with the
provisions of Part III there, shall, to the extent of such inconsistency, be void. It is submitted
12
Venkateshwara Theatre v. State of Andhra Pradesh And Ors., 1993 SCR (3) 616.
13
Chiranjit Lal Chowdhary v. Union of India, AIR 1951 SC 41.
14
Special Courts Bill 1978 (1979) 1 SCC 380.
15
Mohan Choudhary v. Chief Commissioner, Tripura, AIR 1964 SC 173.
16
Ramcharitra v. High Court, Patna, AIR 1976 SC 226.
that public disapproval or disgust for a certain class of persons can in no way serve to uphold
the constitutionality of a statute. The counsel on behalf of the petitioner argued that if the
language of the section was plain, there was no possibility of severing or reading it down.
And so long as the law stands on the statute book, there was a constitutional presumption in
its favour. Keeping in view the fact that the Act is a pre-constitution enactment, the question
as regards its constitutionality will, therefore, have to be judged as being law in force at the
commencement of the Constitution of India17.

[2.2.2] ARTICLE 21 OF THE CONSTITUTION HAS NOT BEEN VIOLATED.

Article 21 envisages a right to life and personal liberty of a person, which not merely
guarantees the right to continuance of a person’s existence but a quality of life18, and
therefore, State is casted upon a duty to protect the rights of the citizen in discharge of its
constitutional obligation in the larger public interest, guaranteed as a fundamental right under
Article 21 of the Constitution19. In the present case, there has been no violation of Article 21
of the Constitution. To establish the violation of Article 21, the Act should be subjected to the
equality test of Article 14 and test of reasonableness under Article 1920.

Article 14 ensures fairness21 and guarantees against arbitrariness22 It provides that every
action of the government must be informed by reasons and guided by public interest23.

2.2.1 Right to Privacy is not absolute.

It is submitted that the Right to privacy can be curtailed by following due process of law and
the Code of Criminal Procedure prescribes a fair procedure, which is required to be followed
before any person charged of committing an offence under Section 377 IPC can be punished.
In Mr. X v. Hospital Z24, this court observed, as one of the basic Human Rights, the right of
privacy is not treated as absolute and is subject to such action as may be lawfully taken for
the prevention of crime or disorder or protection of health or morals or protection of rights
and freedoms of others. The right, however, is not absolute and may be lawfully restricted for
the prevention of crime, disorder or protection of health or morals or protection of rights and
17
Keshavan Madhava Menon v. The State of Bombay, 1951CriLJ 680.
18
Francis Coralie v. Union Territory of Delhi, AIR 1994 SC 1844;Vellore Citizens’ Welfare Forum v. Union of
India, (1996) 5 SCC 647.
19
Consumer Education and Research Centre and Ors. v. Union of India and Ors., AIR 1995 SC 922.
20
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
21
Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101.
22
Express Newspapers Pvt. Ltd. v. Union of India (UOI) and Ors., AIR 1986 SC 872.
23
Consumer Education and Research Centre, AIR 1995 SC 1811.
24
(1998) 8 SCC 296.
freedom of others. The dissenting opinion given by Justice Scalia and Justice Thomas in
Lawrence v. Texas25 stated that promotion of majoritarian sexual morality was a legitimate
state interest. A miniscule fraction of the country’s population constitute lesbians, gays,
bisexuals or transgender and in last more than 150 years less than 200 persons have been
prosecuted for committing offence under Section 377 IPC and this cannot be made sound
basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the
Constitution26 . Section 377 CPPC provides a punishment for unnatural sexual offences,
carnal intercourse against the order of nature. Article 21 exists to protect and preserve life a
grant of right to death would frustrate that right .Death by natural reasons is the only
permitted manner to die and attempted to suicide and assistance in suicide are illegal27.
Khandu v. Emperor 28, carnal intercourse with a bullock through nose is an unnatural offence
punishable under section 377. The Respondent humbly submits that the Hon’ble Court may
take the aforementioned into consideration.

2.2 Section 377 curtails spread of HIV/Aids and furthers public health.

It is submitted that spread of AIDS is curtailed by Section 377 IPC and de-criminalisation of
consensual - same - sex acts between adults would cause a decline in public health across
society generally since it would foster the spread of AIDS. Section 377 IPC prevents HIV by
discouraging rampant homosexuality by putting a brake in the spread of AIDS and if
consensual same-sex acts between adults were to be de-criminalised, it would erode the effect
of public health services by fostering the spread of AIDS. Sexual transmission is only one of
the several factors for the spread of HIV and the disease spreads through both homosexual as
well as heterosexual conduct29 UNAIDS states in its operational guidelines for MSM that
even in generalized HIV epidemics, men who have sex with men are more affected by HIV
than the general population30

ISSUE 3:- Whether the termination of employment of Dr. Gregory House based on contract
is valid or not?

25
539 U.S. 558 (2003).
26
Supra 68.
27
P.Rathinam vs. U.O.I and kaur vs state of Punjab.
28
AIR 1925 Sind 286.
29
Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. AIR 2014 SC 563.
30
Ibid at 77.
An employment contract is a legal document that outlines the terms of employment between
an employer and an employee.31

Appellant breached the contract of employement for which the Respondents are entitled to
terminate the contract.

1]Absence of factual foundation

It is humbly submitted that in the case the petitioner challenges the letter of employment but
the contract under which petitioner is terminated will be held valid as there is no factual
foundation.In Y.K. Sethi v. BASF India Limited it was observed that “When an employee
comes forward to challenge a clause in the letter of appointment on the ground of it being
opposed to public policy,such challenge will have to be preceded by some factual
foundation.32”

2]Free Consent

It is submitted that in the context of the present case the letter of employment which
contained the termination clause was agreed upon by the petitioner and the consent of the
petitioner was given on account of free consent.33

3]Ordinary case of Contract

The petitioner under Article 311 of the Contitution has no application as this was
not a case of dismissal or removal from service nor a reduction in rank but only an
ordinary case of a contract being terminated by notice under one of its clauses,the
difference between dismissal and removal being that the former ordinarily disqualifies from
future employment but not the latter.34
An order of reversion is in its immediate effect bound always to be a reduction in rank.Even
a reversion from a higher but temporary or officiating rank to a lower substantive rank is in
a sense a reduction.But,such orders of reversion are not always reduction in rank within the
meaning of Article 311. If the officer is promoted substantively to a higher post or rank,
he gets a right to that particular post or rank and if he is afterwards reverted to the lower
post or rank which he held before, it is a "reduction in rank" in the technical sense in which
the expression is used in Article 311.The real test in all such cases is to ascertain if the officer
concerned has a right to the post from which he is reverted.After bringing down the sale of

31
https://www.employment-contract/document.com.
32
2009 LLR 1127.
33
Moot Preposition,pg
34
Satish Chandra Anand v. Union of India,1935 AIR 250.
Respondent’s 2 Company the petitioner had no right to stay in the company with accordance
to the letter of appointment.35
5]Right to termination of employment contract
In A.N. Shukul v. Phillips India and Ors.36 It was observed that the employee was informed
that the company went through the process of reorganisation and reconstruction and due to
such changes employer terminated the services of the employee, court denied the contentions
of the petitioner and held that in the term of appointment letter, the respondent had right to
terminate the employment of the petitoner.
In the present case the Respondent 2 terminated employment of the petitioner on the basis of
stipulating a clause in the appointment letter37 .

PRAYER
35
Moot Preposition,pg
36
CS(OS) 2188 of 2003 and IA No. 4895/06 Decided On: 07.09.2009.

37
Moot Preposition,pg
Therefore in the light of the facts stated, arguments advanced and authorities cited, it is
humbly

prayed on behalf of the appellant, that this Hon’ble Court may be pleased to adjudicate and

declare that:

1- That the Writ Petition under Article 32 of Constitution of Central Perk is not

maintainable.

2- That there has not been violation of Artice 14, 15, 19, and 21 of Constitution of Central

Perk.

3- That Section 377, IPC are constitutionally valid as it does not violates the fundamental

rights of the homosexuals.

4- That Termination of employment based on contract is valid and he is not entitled to any

compensation.

And pass any other appropriate order as the Hon’ble Court may deem fit in the interest

of equity, justice and good conscience.

And for this act of Kindness, the Appellant as in duty bound, shall forever pray.

Respectfully Submitted

S/D

Counsel For Respondents