TEAM CODE

LEGAL INSIDER’S FIRST NATIONAL MEMORIAL WRITING COMPETITION,

2020

IN THE HON’BLE SUPREME COURT OF INDIA

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

WRIT PETITION NO.______/2016

DR. JOHN HOUSE…………………………………………………......................(PETITIONER)

V.

UNION OF GREY PERK AND PLUS PHARMA LTD. ……………………………… (RESPONDENTS)

-MEMORIAL ON BEHALF OF RESPONDENTS-

MEMORIAL for RESPONDENTS [TABLE OF CONTENTS]

TABLE OF CONTENTS

INDEX OF AUTHORITIES ................................................................................................ III

STATEMENT OF FACTS ................................................................................................... VI

STATEMENT OF JURISDICTION ................................................................................... IX

ISSUES RAISED..................................................................................................................... X

SUMMARY OF ARGUMENTS .......................................................................................... XI

ARGUMENTS ADVANCED .................................................................................................. 1

ISSUE 1: THAT THE WRIT PETITION FILED BY DR. JOHN HOUSE IS NOT
MAINTAINABLE ..................................................................................................................... 1

1.1. THERE’S NO VIOLATION OF DR. JOHN’S FUNDAMENTAL RIGHT .......... 1

1.2. ALTERNATIVE REMEDY HAS NOT BEEN EXHAUSTED. ............................ 1

1.3. IT IS PURELY A CONTRACTUAL DISPUTE .................................................... 2

ISSUE 2: THAT SECTION 377 OF THE GREY PERK’S PENAL CODE, 1860 DOES NOT
VIOLATE ARTICLE 21 OF THE GREY PERK’S CONSTITUTION ..................................... 3

2.1 SECTION 377 QUALIFIES THE TEST OF SUBSTANTIVE DUE PROCESS .. 3

2.1.1 Art. 14 does not prohibit state to differentiate on intelligible differential and
reasonable rationale ....................................................................................................... 3

2.1.1.1 There is Classification on the basis of Intelligible Differentia ..................... 3

2.1.1.2 There Is Rational Nexus Between Classification and Objective Sought...... 4

2.1.1.3 S.377 is not arbitrary in nature ..................................................................... 5

2.1.2 S.377 does not violate the right to freedom of speech & expression. .............. 6

2.2 IT DOES NOT VIOLATE THE RIGHT TO PRIVACY UNDER ARTICLE 21 .. 7

2.2.1 Right to Privacy is not Absolute ...................................................................... 7

2.2.2 It can be curtailed by following due process of law ......................................... 8

2.2.3 S.377 in the interest of public health ................................................................ 8

2.3 S.377 DOES NOT VIOLATE THE RIGHT TO REPUTATION OF DR. JOHN .......... 9

2.4 S.377 DOES NOT VIOLATE THE RIGHT TO LIVELIHOOD OF DR. JOHN ......... 10

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MEMORIAL for RESPONDENTS [TABLE OF CONTENTS]

ISSUE 3: THE TERMINATION OF EMPLOYMENT OF DR. JOHN HOUSE, BASED ON

CONTRACT, IS VALID ......................................................................................................... 11

3.1 PERFORMANCE OF CONTRACT AS PER THE TERMS MENTIONED IN

THE CONTRACT ITSELF ..................................................................................................... 11

3.1.1 Terms of Employment .................................................................................... 11

3.1.2 ‘Termination for default’ stands justified....................................................... 12

3.1.3 Issuing notice isn’t always necessary. ............................................................ 13

3.2 NON – PERMANENCY OF JOHN’S EMPLOYMENT ..................................... 14

3.2.1 Employer say over employees’ period of employment .................................. 14

3.2.2 In arguendo, if considered to be a probationary employee ............................ 14

3.3 REPUTATION IS A KEY UNDER BUSINESS ETHICS ................................... 16

3.4 JOHN’S ILLICIT COMMUNIQUÉ AFFECTED THE COMMERCIAL

PERFORMANCE OF THE COMPANY ................................................................................ 16

3.5 JOHN’S ATTACK ON MIKE’S SOCIAL STATURE ........................................ 17

PRAYER FOR RELIEF................................................................................................... XXII

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MEMORIAL for RESPONDENTS [INDEX OF AUTHORITIES]

INDEX OF AUTHORITIES

STATUTES

INDIA CONSTI. art. 32 ................................................................................................................. 1

INDIA CONSTI. art. 19, cl. 1(a). ................................................................................................... 6
INDIA CONSTI. art. 19, cl. 2. ....................................................................................................... 6
Indian Penal Code, 1860, § 499, No.45, Acts of Parliament, 1860 (India). ............................ 18
The Code of Civil Procedure, 1908, No. 05, Acts of Parliament, 1908 (India)......................... 2

1. CASES (FOREIGN)

Ashby v. White, 92 ER 126 (1703)............................................................................................ 1

D.F. Marion v. Minnie Davis, 114 So. 357 (Ala. 1927). ........................................................... 9
Lawrence v. Texas, 539 U.S. 558 (2003). ................................................................................. 7
Strategic Outsourcing, Inc. v. Continental Casualty Company, 228 Fed.Appx. 274 (US)...... 17

CASES (INDIA)

.P. Moideen Koya v. Government of Kerala & Others (2004) 8 SCC 106 (India).................... 2
A.K. Gopalan v. State of Madras, AIR 1950 SC 27 (India). ..................................................... 3
A.V. Venkateshwaran v. R.S.Wadhwani, AIR 1961 SC 1906 (India). ..................................... 1
Air India Ltd. v. GATI Ltd., OMP 1264/2013 (India). ............................................................ 13
Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nandkarni, AIR
1983 SC 109 (India). ............................................................................................................ 10
Budhan Choudhry & Ors v. State of Bihar, AIR 1955 SC 191 (India). .................................... 4
Commissioner of Central Excise Jamshedpur v. Dabur, (2005) 3 SCC 646 (India) ................. 5
Commissioner v. Shamsher Printing, AIR 1961 SC 98 (India). .............................................. 18
District Registrar and Collector, Hyderabad and Anr. v. Canara Bank and Anr., 1997 (4) ALT
118 (India). ............................................................................................................................. 7
Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, AIR 1996 SC 1113 (India). .. 6
E.P. Royappa v. State of Tamil Nadu & Anr, 1974 AIR 555 (India). ....................................... 5
Govind v. State of Madhya Pradesh, AIR 1975 SC 1378 (India). ............................................. 8

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MEMORIAL for RESPONDENTS [INDEX OF AUTHORITIES]

Jagmohan Singh v. State of U.P., (1973) 1 SCC 20 (India). ..................................................... 7

Jaila Singh v. State of Rajasthan, AIR 1975 SC 1436 (India). .................................................. 5
K.S. Puttaswamy and Anr. v. Union of India & Ors., (2017) 10 SCC 1 (India). ...................... 7
Kangshari v. State of West Bengal, AIR 1960 SC 457 (India).................................................. 4
Kharak Singh v. State of U.P. & Ors, (1964) 1 SCR 332 (India). ............................................. 7
L. Chandrakumar v. Union of India, AIR 1997 SC 1125 (India). ............................................. 1
Laxman Prasad v. Prodigy Electronics Ltd. & Anr., Civil App. 5751/2007 (India). .............. 12
Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981 SC 873 (India). .................................... 3
M/s National Highways Authority v. M/s BSCPL, O.M.P 472/2013 (India). ......................... 11
Mafatlal Industries Ltd. And Ors. v. Union of India and Ors., 1997(89) ELT 247 (SC) (India)
................................................................................................................................................ 5
Mihir alias Bhikari Chauhan Sahu v. State, 1992 Cri LJ 488 (India). ....................................... 4
Naz Foundation v. Government of NCT of Delhi, 2010 Cri LJ 94 (India). .............................. 4
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 (India). ............................ 10
P. Janardhana Shetty v. Union of India and Ors., 1970 (20) FLR 355 (India). ....................... 17
Progressive Education Society v. Rajendra, (2008) 3 SCC 310 (India). ................................. 15
R C Roy v. Union of India & Ors., AIR 1971 Delhi 186 (India). ........................................... 13
Radheshyam Tiwari v. Eknath, AIR 1985 Bom. 285 (India). ................................................... 9
Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881 (India). ....................................... 6
Smt. Kiran Bedi v. Committee of Inquiry, 1989 AIR 714 (India). ............................................ 9
State of Maharashtra v. Public Concern of Governance Trust, 2007 3 SCC 587 (India). ......... 9
State of Punjab v. Dharam Singh, 1968 AIR 1210 (India). ..................................................... 15
Subramanian Sway v. Union of India, AIR 2016 SC 2728 (India). ........................................ 18
Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 (India). ....................................... 3
Tata Sons Ltd. v. Greenpeace International & Anr., 178 (2011) DLT 705 (India). ................ 18
The Delhi High Court in The Managing Committee of Shiksha Bharati Senior Secondary
Public-School v. Director of Education and Anr., WP(C) 10573/2009 (India). .................. 15

JOURNALS/ARTICLES/REPORTS

A Z Carr, Is Business bluffing Ethical?, HARVARD BUSINESS REV, 46(1), 143-153 (1968). .. 16
ANNUAL REPORT, National AIDS Control Organization (2014-15). ......................................... 9
ANNUAL REPORT, National AIDS Control Organization, 9 (2011-12). ..................................... 8

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MEMORIAL for RESPONDENTS [INDEX OF AUTHORITIES]

Edwin P. James, Termination for Default and for Convenience of the Government, 5(1) B. C.
L. REV. 65 (1963). ................................................................................................................ 12
Harish Kumar, Law of Defamation in India, 2 (2) INTERNATIONAL JOURNAL OF

INSTITUTIONAL & INDUSTRIAL RESEARCH, 22-25 (2017). ................................................... 18

UN REPORT ON GLOBAL AIDS EPIDEMIC, 47-50 (2008). .......................................................... 8

BOOKS

2 D D BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8 ed. Wadhwa and Co. Law
Publishers)............................................................................................................................ 18
BLACK’S LAW DICTIONARY, 746 (Bryan A. Garner, 9 ed. 2009). ............................................. 6
C. McMahon, Morality and the Invisible Hand, PHILOSOPHY AND PUBLIC AFFAIRS, 10(3),
247-277 (1981)..................................................................................................................... 14
DAVID M. WASIELESKI, JAMES WEBER, BUSINESS ETHICS (5ed. Emerald Publishing, 2019). 14
M P JAIN, INDIAN CONSTITUTIONAL LAW, 917 (7th ed. 2015). .................................................. 5

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MEMORIAL for RESPONDENTS [STATEMENT OF FACTS]

STATEMENT OF FACTS

GREY PERK (IN PARI MATERIA WITH INDIA) - AN EMERGING ECONOMY

Grey Perk, the fastest growing country and ranked fifth in terms of area and population, is a
newly established democratic state recently formed after the amalgamation of different states.
According to its suitability, the law makers of Grey Perk framed world’s lengthiest
Constitution for the welfare of its citizens in order to promote parity among the citizens of the
country. Having already excelling in the agricultural sector, the legislature strengthened the
laws to promote trade and employment.

PLUS PHARMA LIMITED, A WELL-KNOWN GOVERNMENT PHARMACEUTICAL COMPANY

Plus Pharma Limited (hereinafter referred to as ‘Plus Pharma’), a well-known government

established pharmaceutical company, has successfully captured a large share of the
competitive market by producing medicines in three forms, i.e. liquid, capsules and tablets. It
has been successfully running in business for ten whole years.

February Release of an advertisement on February 1, 2016 to hire qualified medical

1, 2016 representatives in order to extend its trade further and farther.

Dr. John House (hereinafter referred to as ‘John’), being proficient in the field of medicine,
got appointed, along with nine others, as a Medical Representative to Plus Pharma, after
clearing the interview and meeting the required criteria.

February John was awarded a letter of appointment stipulating the joining date (according
18, 2016 to the contract of employment).

INITIAL MONTHS OF JOHN AT PLUS PHARMA

John played a major role in increasing the company’s sales by 3% in first two months,
proving himself to be efficient and effective in discharging his duties. He received great
appreciation and applause from his employer Mr. Mike Ross (hereinafter referred to as
‘Mike’), the director of the company.

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MEMORIAL for RESPONDENTS [STATEMENT OF FACTS]

On one of the occasions he received recognition for handling a situation, where the company
had great chances of getting sued by that retailer. The goodwill of the company was restored
by of John’s good behavior towards the owner of the retail shop.

John was jolly by nature and liked interacting with people around him. His way of working
was different. He used good communication skills and persuasive power to grab orders from
other small pharmacies and wholesalers.

JOHN’S ILLICIT RELATIONSHIP WITH OWNERS OF OTHER PHARMACEUTICAL COMPANIES

Word that went around the office was about him having illicit relationships with the owners
of certain pharmaceutical companies during the course of his employment. Due to his
attempts of having such relations with the companies with whom Plus Pharma have
contracted, there was a tremendous decrease in sales of the company.

JOHN’S DEFAMATORY TWEET AGAINST MIKE

May 20 John took to the social networking platform stating, “It is ironical that Mike
2016, at accuses me of maintaining illicit relations with others when he himself
9:30 pm approached me for the same.” He further added that “He is misusing his
position by not crediting my salary in order to satisfy his personal grudges.”

As Mike was a famous personality, many people started sharing the post which led him to
face severe criticism in the society. As a result, not only this led to the downfall of the
company’s sale but also adversely affected the goodwill. There was no company who wanted
to enter into new contracts with PLUS PHARMA. The value of market share of the company
also went down.

TERMINATION OF JOHN’S CONTRACT

Subsequently, Mike terminated the contract of John stipulating clause - “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”

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MEMORIAL for RESPONDENTS [STATEMENT OF FACTS]

SUIT FOR DEFAMATION AGAINST JOHN IN THE DISTRICT COURT

June 10, Mike filed a defamatory suit against John in the District Court asked him to pay
2016 compensation for the loss occurred to the company and also for the criticism he
had to face from the society.

September The District Court held that the termination is valid because of the non-
10, 2016 negotiable terms and conditions of the employment contract.

Also, it asked John to pay a compensation of Rs.5 lakhs for personal defamation
of Mike, and a subsequent amount of Rs. 10 lakhs for losses incurred by the
company on account of loss of goodwill and anticipated sales.

JOHN’S EXCLUSIVE INTERVIEW

October 5, John, in an exclusive interview, revealed that even if he had relations with
2016 other males, it had no concern with Mike and his employment contract. He
talked of exercising his Right to Privacy and right of not being discriminated
on such basis.

WRIT PETITION BEFORE THE HON’BLE SUPREME COURT

December John filed a Writ Petition contending that there has been a breach of his
10, 2016 fundamental rights against the Union of Grey Perk and PLUS PHARMA.

The Supreme Court took the cognizance of the matter and agreed to hear and adjudicate on
the merits.

March 8, Hearing of the matter.

2018

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MEMORIAL for RESPONDENTS [STATEMENT OF JURISDICTION]

STATEMENT OF JURISDICTION

WRIT PETITION NO_____/2016

The Respondents have the honor to submit before the Hon’ble Supreme Court of India the
memorandum for Respondents in the present case under Article 32 of the Constitution of India,
1950, read as-

“32. Remedies for enforcement of rights conferred by this Part (1) The right to move the
Supreme Court by appropriate proceedings for the enforcement of the rights conferred by
this Part is guaranteed (2) The Supreme Court shall have the power to issue directions or
orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo-
warranto and certiorari, whichever may be appropriate, for the enforcement of any of the
rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme
Court by clauses ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise
within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme
Court under clause ( 2 ) (4) The right guaranteed by this article shall not be suspended
except as otherwise provided for by this Constitution”

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

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MEMORIAL for RESPONDENTS [ISSUES RAISED]

ISSUES RAISED

ISSUE 1:

WHETHER THE WRIT PETITION FILED BY DR. JOHN HOUSE IS MAINTAINABLE OR NOT?

ISSUE 2:

WHETHER SECTION 377 OF THE GREY PERK’S PENAL CODE, 1860 VIOLATES ARTICLE 21
OF THE CENTRAL PERK’S CONSTITUTION OR NOT?

ISSUE 3:

WHETHER THE TERMINATION OF EMPLOYMENT OF DR. JOHN HOUSE, BASED ON

CONTRACT, IS VALID OR NOT?

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MEMORIAL for RESPONDENTS [SUMMARY OF ARGUMENTS]

SUMMARY OF ARGUMENTS

ISSUE 1: THAT THE WRIT PETITION FILED BY DR. JOHN HOUSE IS NOT
MAINTAINABLE

Article 32 is notably called the cornerstone of the Indian constitution, annotating the doctrine
ubi jus ibi remedium i.e. for every wrong, the law provides a remedy. Through the article, the
Supreme Court has jurisdiction to provide remedies in case of violating the fundamental
rights of any individual.

The Writ Petition filed by John, however, is not maintainable as firstly, there is no violation
of his fundamental right, secondly, alternative remedy has not been exhausted and lastly. it is
purely a contractual dispute.

ISSUE 2: THAT SECTION 377 OF THE GREY PERK’S PENAL CODE, 1860 DOES
NOT VIOLATE ARTICLE 21 OF THE CENTRAL PERK’S CONSTITUTION

The requirement of substantive due process has been read into the Constitution of Grey Park
through a combined reading of Articles 14, 21 and 19 and it has been held as a test required
to be satisfied while judging the constitutionality of a statute. Section 377 qualifies the test of
substantive due process and does not vitiate one’s right privacy, reputation and livelihood.

Section 377 distinguishes sexual acts from unnatural sexual offences or carnal intercourse
against the order of nature. It does not distinguish between procreative and nonprocreative
sex. Therefore, this classification is reasonable and based on intelligible differentia. If Section
377 is declared unconstitutional, there will be no way the State can prosecute any crime of
non-consensual carnal intercourse against the order of nature or gross male indecency. Thus,
there is a rational nexus between classification and objective sought in the case of Section
377.

Further, it is crucial to maintain public decency and morality as it is a justified interference by

public authorities in the interest of public safety and protection of health and morals. The
promotion of majoritarian sexual morality is a legitimate sexual interest and the retention
thereof is crucial to the interest of our nation.

Furthermore, due to the presence of Section 377, there has been no violation of right to
reputation or privacy as he was the one who has raised this issue on a social media platform.

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MEMORIAL for RESPONDENTS [SUMMARY OF ARGUMENTS]

Laws on defamation deals with the reputation of a person and truth is considered to be one of
the defenses.

ISSUE 3: THAT THE TERMINATION OF EMPLOYMENT OF DR. JOHN HOUSE,

BASED ON CONTRACT, IS VALID.

The termination of employment of Dr. House, based on contract, stands validated as Plus
Pharma hit a hard rock having John, a medical representative to the company, responsible for
the downturn. Leaving no room for confusion, a contract should be read as it reads, as per its
expressed terms. When an occupational offer gets documented into a contract, the contract
itself, if mentioned, dictates the process of termination, which was used by Mike to fire John.

Employment contracts are quite specific and determined about the process for terminating
employment. Certain exceptional circumstances justify the termination without adhering to
the procedure laid for providing notices. The importance of serving notice to John loses its
teeth upon the decrease in the sales as increasing the business of the company was the very
reason why he was hired in the first place.

Clarifications to the fact sheet elucidates the fact that John was not a permanent employee to
the company. His stay period in the company were inceptive and the operation duration
embarked his initial months in the company. Hence, John doesn’t classify as a permanent
employee of Plus Pharma.

Business ethics sets the tone for implementing appropriate business policies and practices
with regards to arguably controversial subjects and provide basic guidelines that companies
choose to follow to gain public approval. As a representative, and as a face to the company,
John was not devoid of any allegation as reputation is a key determinant to claim a stake in
the market.

Freedom of Speech and Expression, as enshrined by the Constitution, aren’t absolute and
comes with reasonable restrictions. The protection of ‘reputation’ of an individual is inclusive
of protection of ‘dignity’ and any comment or remark hampering the reputation of another
invites’ liability under the law of defamation. John intentionally defamed Mike, spurring
wide enough reason for the termination of the contract.

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MEMORIAL for RESPONDENTS [ARGUMENTS ADVANCED]

ARGUMENTS ADVANCED

ISSUE 1: THAT THE WRIT PETITION FILED BY DR. JOHN HOUSE IS NOT
MAINTAINABLE

Article 32 is the cornerstone of the Indian constitution1 which annotates the doctrine ubi jus
ibi remedium, i.e. for every wrong, the law provides a remedy.2 Through Art. 32 the Supreme
Court has jurisdiction to provide remedies in case of violating fundamental rights of any
individual.

(¶1.) It is humbly submitted that the writ petition filed by Dr. John is not maintainable as
[1.1] first, there is no violation of his fundamental right; [1.2] Second, alternative remedy
has not been exhausted; [1.3] and third, it is purely a contractual dispute.

1.1. THERE’S NO VIOLATION OF DR. JOHN’S FUNDAMENTAL RIGHT

(¶2.) Fundamental rights guaranteed under the constitution but those rights are not absolute
in nature. However, remedies through the apex have been provided, whenever, there is a
violation of fundamental right. Each of these rights can be taken away with a procedure
established by Law. Legislature with due regard to constitutional limits may impose
reasonable restrictions on the enjoyment of fundamental rights.
(¶3.) Right to privacy like other fundamental rights is subject to restrictions on grounds of
public morality, national security interest and others. Art. 14 does not bar the state from
creating unequal categories if it has justified rationale in the larger interest of society. S.
377 does not target sexual orientation but penalize the only act of buggery, sodomy i.e.
unnatural offences. Therefore, it is submitted that there is no violation of the fundamental
right of Dr. John.

1.2. ALTERNATIVE REMEDY HAS NOT BEEN EXHAUSTED.

(¶4.) The tribunals are competent enough to hear this particular case by the virtue of L.
Chandrakumar V. Union of India.3 An alternative remedy is a bar unless there was
complete lack of jurisdiction in the officer or authority to take action impugned4,

1
INDIA CONSTI. art. 32.
2
Ashby v. White, 92 ER 126 (1703).
3
L. Chandrakumar v. Union of India, AIR 1997 SC 1125 (India).
4
A.V. Venkateshwaran v. R.S.Wadhwani, AIR 1961 SC 1906 (India).
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MEMORIAL for RESPONDENTS [ARGUMENTS ADVANCED]

however, the existence of a competent body5 to hear this particular case questions the
maintainability of the writ petition filed.
(¶5.) It was held at the Hon’ble apex court in Asstt. Collector of Central Excise v. Jainson
Hosieryṅ6 where there is alternative statutory remedy court should not interfere unless the
alternative remedy is too dilatory or cannot grant quick relief.
(¶6.) In the present case, the high court has the appellate jurisdiction to adjudicate this
matter as it majorly focuses on the termination of Dr. John. Issue regarding S.377 cannot
be dragged before the court when there is violation through it as such. Moreover, this
petition in disguise contains the issue of employment contract.

1.3. IT IS PURELY A CONTRACTUAL DISPUTE

(¶7.) Article 32 only provides remedy when there is violation of fundamental rights. No
other disputes are admissible under this jurisdiction of court.7 A writ by a government
employee is maintainable under Art. 32 when there is an arbitrary termination by an
employee.8
(¶8.) In the present case, the dispute is clearly a contractual dispute where the termination
of Dr. John was done on the basis of conditions stipulated in the employment contract.9
The district court held on 10th September 2016 that the termination is valid because of
the non-negotiable terms and conditions of the employment contract. 10 In the entire
scenario there was no violation of fundamental rights of Dr, John moreover, no picture of
S.377 arose.
(¶9.) Therefore, it is humbly submitted that the instant writ petition is not maintainable
under Article 32 of the constitution as there is no infringement to the fundamental rights
of petitioner because the matter is more of related to the contract and there are other
remedies available except to the jurisdiction of this court.

5
The Code of Civil Procedure, 1908, No. 05, Acts of Parliament, 1908 (India).
6
Asstt. Collector of Central Excise v. Jainson Hosieryṅ, AIR 1979 SC 1889 (India).
7
Daryao And Others v. The State Of U. P. & Ors, 1961 AIR 1457 (India).
8
T.P. Moideen Koya v. Government of Kerala & Others (2004) 8 SCC 106 (India).
9
Moot Proposition, Para 12.
10
Moot Proposition, Para 13.
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MEMORIAL for RESPONDENTS [ARGUMENTS ADVANCED]

ISSUE 2: THAT SECTION 377 OF THE GREY PERK’S PENAL CODE, 1860 DOES
NOT VIOLATE ARTICLE 21 OF THE GREY PERK’S CONSTITUTION

(¶10.) It is humbly submitted that Section 377 of the Grey Perk’s Penal Code 1860 does not
violate Article 21 of the Constitution of Grey Perk as [2.1.] it qualifies the test of
substantive due process, [2.2.] it does not violate one’s right to privacy, [2.3.] it does not
vitiate right to reputation, [2.4.] and it does not violate right to livelihood.

2.1 SECTION 377 QUALIFIES THE TEST OF SUBSTANTIVE DUE PROCESS

(¶11.) Article 21 provides that the right to life and liberty is subject to procedure prescribed
by law.11 The requirement of substantive due process has been read into the Constitution
of Grey Perk through a combined reading of Articles 14, 21 and 19 and it has been held
as a test required to be satisfied while judging the constitutionality of a statute.12
(¶12.) Thus, it is submitted that S.377 qualifies the requisite tests as [2.1.1] Art. 14 does not
prohibit state to differentiate on intelligible differential and reasonable rationale [2.1.2] it
does not violate right to freedom of speech & expression.

2.1.1 Art. 14 does not prohibit state to differentiate on intelligible differential and
reasonable rationale

(¶13.) It is humbly submitted that S.377 is not ultra vires as [2.1.1.1] the classification is
founded on an intelligible differentia, [2.1.1.2] and there is rational nexus between
classification and objective sought, and [2.1.1.3] possibility of abuse of power does not
render a legislation arbitrary.

2.1.1.1 There is Classification on the basis of Intelligible Differentia

(¶14.) Article 14 forbids class legislation; it does not forbid reasonable classification of
persons by the Legislature for specific ends. Classification in such a case should be based
on an intelligible differentia, some real and substantial distinction, which distinguishes
persons or things grouped together in the class from others left out of it.13

11
A.K. Gopalan v. State of Madras, AIR 1950 SC 27 (India).
12
Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 (India).
13
Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981 SC 873 (India).
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MEMORIAL for RESPONDENTS [ARGUMENTS ADVANCED]

(¶15.) In the instant case, S. 377 classifies acts based on whether they are in consonance
with the ordinary course of nature or against it.14 It includes the acts of carnal intercourse
between man and man, man and woman and woman and woman. 15 The Supreme Court,
in its recent judgement in the matter of Suresh Kumar Koushal and Anr. v. Naz
Foundation and Ors16, held that those who indulge in carnal intercourse in the ordinary
course and those who indulge in carnal intercourse against the order of nature constitute
different classes and the people falling in the latter category cannot claim that Section 377
suffers from the vice of arbitrariness and irrational classification.
(¶16.) It is submitted that Section 377 is gender neutral and covers voluntary acts of carnal
intercourse against the order of nature irrespective of the gender of the person committing
the act. It does not criminalize a particular person or identity or orientation. It merely
identifies certain acts which if committed would constitute an offence and merely talks
about a particular mode of sexual activity, independent of the sex of people or sexual
orientation.17

(¶17.) Thus, Section 377 distinguishes sexual acts from unnatural sexual offences or carnal
intercourse against the order of nature. It does not distinguish between procreative and
nonprocreative sex. Therefore, it is submitted that this classification is reasonable and
based on intelligible differentia.

2.1.1.2 There Is Rational Nexus Between Classification and Objective Sought

(¶18.) It is necessary for a reasonable basis of classification that there must be a nexus
between the basis of classification and the object of the act under consideration.18 When a
law is challenged as violative of Article 14, it is necessary for the court first to ascertain
the policy underlying the statute and the object intended to be achieved by it.19 According
to the changing scenario of the society, the classification is needed as suggested by
experience.20
(¶19.) If the legislative policy is clear and definite and as an effective method of carrying out
that policy a discretion is vested by the statute upon a body of administrators or officers to

14
Naz Foundation v. Government of NCT of Delhi, 2010 Cri LJ 94 (India).
15
Id.
16
supra note 14.
17
supra note 12; In re: Special Courts Bill, 1978, (1979) 1 SCC 380 (India).
18
Budhan Choudhry & Ors v. State of Bihar, AIR 1955 SC 191 (India).
19
Kangshari v. State of West Bengal, AIR 1960 SC 457 (India).
20
Mihir alias Bhikari Chauhan Sahu v. State, 1992 Cri LJ 488 (India).
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make selective application of the law to certain classes or groups of persons, the statute
itself cannot be condemned as a piece of discriminatory legislation.21
(¶20.) The objective behind Section 377 is to clearly demarcate sexual activities in
consonance with the order of nature and differentiate them from activities against the
order of nature, which is necessary in cases of allegation of child sexual abuse and for
complementing lacunae in the rape laws.22 The state looks to uphold public morality and
decency and it is a compelling state interest in this matter. It is contended that deletion
thereof would well open flood gates of delinquent behavior.
(¶21.) If Section 377 is struck down, there will be no way the State can prosecute any crime
of non-consensual carnal intercourse against the order of nature or gross male indecency.
Thus, it is submitted that there is a rational nexus between classification and objective
sought in the case of Section 377.

2.1.1.3 S.377 is not arbitrary in nature

(¶22.) In order to establish that a provision is arbitrary and it violates Article 14, it is
necessary to show that the differentiation is unreasonable or arbitrary23; that it does not
rest on any rational basis having regard to the object which the legislature has in view in
making the law in question.24
(¶23.) Arbitrariness on the possibility that a power may be abused, despite the guidelines, in
the provisions providing for such power cannot be held to be arbitrary and
unreasonable.25 The principle underlying the guarantee of Article 14 means that all
persons shall be treated alike both in privileges conferred and liabilities imposed.26
(¶24.) The possibility of abuse of power by executive officials who are responsible for
Section 377’s implementation cannot be a valid ground to contest its constitutionality
since the ill treatment of homosexuals is neither mandated by the section nor condoned by
it. Thus, it is contended that mere possibility of abuse of power by the responsible
officials cannot be considered as a sufficient ground for holding Section 377 arbitrary.

21
M P JAIN, INDIAN CONSTITUTIONAL LAW, 917 (7th ed. 2015).
22
supra note 20.
23
E.P. Royappa v. State of Tamil Nadu & Anr, 1974 AIR 555 (India).
24
Jaila Singh v. State of Rajasthan, AIR 1975 SC 1436 (India).
25
Commissioner of Central Excise Jamshedpur v. Dabur, (2005) 3 SCC 646 (India); Sushil Kumar Sharma v.
Union of India and Ors., (2005) 6 SCC 281 (India); Thangal Kunu Musaliar v. M. Venkatachalam Potti,
Authorised Official and Income Tax Officer and Anr., (1956) 29 ITR 349 (SC) (India); Mafatlal Industries Ltd.
And Ors. v. Union of India and Ors., 1997(89) ELT 247 (SC) (India).
26
supra note 12.
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(¶25.) Therefore, it is a humble submission that S.377 qualifies the test provided under Art.
14 of the constitution and hence it is not ultra vires.

2.1.2 S.377 does not violate the right to freedom of speech & expression.

(¶26.) It is submitted that S.377 does not violate the freedom of speech and expression27 as
Article 19(2) expressly permits imposition of restrictions in the interest of decency and
morality. Article 19(2) provides that nothing shall affect the operation of any existing
law, or prevent the State from making any law, insofar as such law imposes reasonable
restrictions in the interests of the State, in matters of public order, decency or morality
among other grounds.28
(¶27.) The test of obscenity is whether the tendency of the matter charged as obscene is to
deprive and corrupt those whose minds are open to such immoral influences.29 It is
necessary to see whether a class which comes into contact with such knowledge suffers in
their moral outlook or might have impure or lecherous thoughts aroused in their minds.30
(¶28.) The Supreme Court has further widened the scope of public decency and morality by
saying that it is not confined to sexual morality alone and the ordinary dictionary meaning
indicates that an action must be in conformity with the current standards of behavior or
propriety.31
(¶29.) In its 42nd Report, the Law Commission had recommended the retention of Section
377 because the societal disapproval thereof is strong. Indian society considers
homosexuality to be repugnant, immoral and contrary to the cultural norms of the
country.32
(¶30.) ‘Order of nature’ has been defined as something pure, as distinguished from artificial
and contrived.33 Every organ of the human body has a particular function assigned by
nature. If the organs are abused by virtue of usage for any reasons other than these
functions assigned, it goes against nature. Decriminalization of Section 377 would result
in detrimental effects on India’s social structure and the institution of marriage. The
legislature has treated carnal intercourse against the order of nature as an offence and thus
the presumption of constitutionality is strong.

27
INDIA CONSTI. art. 19, cl. 1(a).
28
INDIA CONSTI. art. 19, cl. 2.
29
R v. Hicklin, L.R., 3 Q.B. 360 (UK); Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881 (India).
30
Chandrakant Kalyandas Kakodkar v. State of Maharashtra, AIR 1970 SC 1390 (India).
31
Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, AIR 1996 SC 1113 (India).
32
Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 (India).
33
BLACK’S LAW DICTIONARY, 746 (Bryan A. Garner, 9 ed. 2009).
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(¶31.) Further, it is imperative at this juncture to emphasise on the fact that social conditions
as well as general intellectual levels are different in our nation and other Western nations
and thus arguments which would be valid in respect of one area of the world may not
hold good in another area.34 The Supreme Court observed in Jagmohan Singh v. State of
U.P.35 that there remain grave doubts about the expediency of transplanting Western
experience in our country and mere acceptance of a way of life in another nation cannot
be the basis for change in our perceptions.
(¶32.) Thus, Section 377 is crucial to maintain public decency and morality. It is submitted
that Section 377 is a justified interference by “public authorities in the interest of public
safety and protection of health and morals”. The promotion of majoritarian sexual
morality was a legitimate sexual interest36 and the retention thereof is crucial to the
interest of our nation.

2.2 IT DOES NOT VIOLATE THE RIGHT TO PRIVACY UNDER ARTICLE 21

(¶33.) It is humbly submitted that the right to privacy has not violated in the case of S. 377
as [2.2.2] right to privacy is not absolute, and [2.2.2] it can be curtailed by following due
process of law, [2.2.3] it is in the interest of public health

2.2.1 Right to Privacy is not Absolute

(¶34.) The Constitution does not grant in specific and express terms any right to privacy as
such.37 However, in the recent case of KS Puttaswamy & Anr v UOI38, it was held by the
Hon’ble Court has spelt out Right to Privacy is an important aspect of one’s life and is
protected under Art. 2139 It has merely been culled by the Supreme Court from Art. 21
and several other provisions of the Constitution read with the Directive Principles of State
Policy.40
(¶35.) The scope of the Right of Privacy, as also the permissible limits upon its exercise,
have been laid down in the case of Kharak Singh v. State of UP and others41 In Mr. X v.

34
35th LAW COMM. OF INDIA, 354 (1967).
35
Jagmohan Singh v. State of U.P., (1973) 1 SCC 20 (India).
36
Lawrence v. Texas, 539 U.S. 558 (2003).
37
supra note 21.
38
K.S. Puttaswamy and Anr. v. Union of India & Ors., (2017) 10 SCC 1 (India).
39
District Registrar and Collector, Hyderabad and Anr. v. Canara Bank and Anr., 1997 (4) ALT 118 (India).
40
Id.
41
Kharak Singh v. State of U.P. & Ors, (1964) 1 SCR 332 (India).
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Hospital Z,42 it was held that Right to Privacy is not 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. It does not include the right to
commit any offence as defined u/s 377 or any other section. Thus, Right to Privacy is not
absolute and S.377 is not in violation to that.

2.2.2 It can be curtailed by following due process of law

(¶36.) In Govind v. State of Madhya Pradesh,43 the Supreme Court considered the
constitutional validity of a regulation which provided for surveillance by way of several
measures indicated in the said regulation. Further, it was held, “right of privacy must be
subject to restriction on the basis of compelling state interest.” As has already been
contended in the previous sub-issue, the state in this case has compelling interest in the
form of ‘public morality and decency’.
(¶37.) Further, Section 377 is in the interest of maintaining public health and preventing a
widespread problem of HIV/AIDS. In light of this, it is submitted that Section 377 does
not violate one’s Right to Privacy since there is due process of law involved.

2.2.3 S.377 in the interest of public health

(¶38.) National Aids Control Organization (NACO) states that the groups identified to be at
greater risk of acquiring and transmitting HIV infections due to a high level of risky
behavior and insufficient capacity of power for decision making to protect themselves
from infection, generally described as ‘High Risk Groups’ (HRG), broadly include men
who have sex with men (MSM)44, among others. HIV/AIDS is transmitted through the
route of sex and specifically that of sex by men-with-men.
(¶39.) Out of the estimated 5 million people living with HIV in Asia in 2007, 3,80,000 were
those who had been newly affected. This significant increase was attributed, amongst
others, to “unprotected sex” in which unprotected anal sex between men in stated to be a
potential significant factor.45
(¶40.) Anal intercourse between two homosexuals is a high risk activity, which exposes both
the participating individuals to the risk of HIV/AIDS, and this becomes even grave in

42
Mr. X v. Hospital Z, (1998) 8 SCC 296 (India).
43
Govind v. State of Madhya Pradesh, AIR 1975 SC 1378 (India).
44
ANNUAL REPORT, National AIDS Control Organization, 9 (2011-12).
45
UN REPORT ON GLOBAL AIDS EPIDEMIC, 47-50 (2008).
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case of a male bisexual having intercourse with a female partner who may not even be
aware of the activity of her partner and is yet exposes to high risk of HIV/AIDS.46
(¶41.) Section 377 helps in putting a brake in the spread of AIDS and if consensual same-sex
acts between adults were to be decriminalized, it would erode the effect of public health
services by fostering the spread of AIDS. Further, it is contended that Section 377 does
not obstruct personality development of homosexuals or affects their self-esteem in any
way because the observation is such a case is solely based on reports prepared by
academicians and such reports cannot be relied upon to declare any legislation violative
of one’s fundamental
(¶42.) It is humbly submitted that S.377 is in the public interest and is not violation with
fundamental rights.

2.3 S.377 DOES NOT VIOLATE THE RIGHT TO REPUTATION OF DR. JOHN

(¶43.) Reputation is an important part of one’s life. The Supreme Court referring to D.F.
Marion v. Minnie Davis47 in Smt. Kiran Bedi v. Committee of Inquiry48 held that “good
reputation was an element of personal security and was protected by the Constitution,
equally with the right to the enjoyment of life, liberty, and property. The court affirmed
that the right to enjoyment of life, liberty, and property. The court affirmed that the right
to enjoyment of private reputation was of ancient origin and was necessary to human
society.”
(¶44.) The same American Decision has also been referred to in the case of State of
Maharashtra v. Public Concern of Governance Trust49, where the Court held that good
reputation was an element of personal security and was protected by the constitution,
equally with the right to the enjoyment of life, liberty, and property. Thus, any wrong
action of the state or agencies that sullies the reputation of a virtuous person would
certainly come under the scope of Art. 21.
(¶45.) In the present case, there is no violation to the right to reputation of Dr. John as he
was the one who has raised this issue on a social media platform. Laws on defamation
deals with the reputation of a person and truth is considered to be one of the defenses. 50

46
ANNUAL REPORT, National AIDS Control Organization (2014-15).
47
D.F. Marion v. Minnie Davis, 114 So. 357 (Ala. 1927).
48
Smt. Kiran Bedi v. Committee of Inquiry, 1989 AIR 714 (India).
49
State of Maharashtra v. Public Concern of Governance Trust, 2007 3 SCC 587 (India).
50
Radheshyam Tiwari v. Eknath, AIR 1985 Bom. 285 (India).
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Therefore, it is humbly submitted that there is no violation of right to reputation due to

the presence of S.377.

2.4 S.377 DOES NOT VIOLATE THE RIGHT TO LIVELIHOOD OF DR. JOHN

(¶46.) In the case of Board of Trustees of the Port of Bombay v. Dilipkumar

Raghavendranath Nandkarni51, it was held that “the right to life” guaranteed by Article
21 includes “the right to livelihood”. The Supreme Court in Olga Tellis v. Bombay
Municipal Corporation52, popularly held that ‘right to livelihood’ is borne out of the
‘right to life’, as no person can live without the means of living, that is, the means of
Livelihood.53
(¶47.) In the present case, termination of Dr. John was done on the basis of breach of
employment contract54 not on the basis of his sexual orientation. Sales of the company
was drastically reduced due to the actions of Dr. John.55 No action was taken on the basis
of his sexual orientation. Therefore, it is contended that S.377 does not violate the right to
livelihood as provided under Art.21.
(¶48.) Thus, it humbly submitted that Section 377 of the Grey Perk’s Penal Code 1860 does
not violate Article 21 of the Constitution of Grey Perk as it qualifies the test of
substantive due process, it does not violate one’s right to privacy, it does not vitiate right
to reputation, and it does not violate right to livelihood.

51
Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nandkarni, AIR 1983 SC 109
(India).
52
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 (India).
53
Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101 (India).
54
Moot Proposition, Para 12.
55
Moot Proposition, Para 9.
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ISSUE 3: THE TERMINATION OF EMPLOYMENT OF DR. JOHN HOUSE, BASED

ON CONTRACT, IS VALID

(¶49.) Perceptively similar to any valid contract, an employment contract is based on an

offer, acceptance, consideration, competent parties, legal object and free consent. Briefly,
it can be connoted as a bilateral agreement for an agreed duration for the exchange of
service and remuneration.56
(¶50.) It is deferentially submitted that the termination of employment of Dr. House, based
on contract, stands validated as Plus Pharma hit a hard rock having John, a medical
representative to the company, responsible for the downturn. Firstly, performance of
contract was concluded as per the terms mentioned in the contract itself. Secondly, non –
permanency of John’s employment in the company. Thirdly, reputation is a key under
business ethics. Fourthly, John’s illicit communiqué affected the commercial
performance of the company and lastly, John’s attack on Mike’s social stature.

3.1 PERFORMANCE OF CONTRACT AS PER THE TERMS MENTIONED IN

THE CONTRACT ITSELF

(¶51.) Leaving no room for confusion, a contract should be read as it reads, as per its
expressed terms.57 When an occupational offer gets documented into a ‘contract’, the
contract itself, if mentioned, dictates the process of termination, 58 and the provision in
law and the terms of the contract governs the adjudication of consequences of the
termination.59
(¶52.) Termination of John’s employment at Plus Pharma is justified, firstly, in accordance
to the mentioned terms of the employment contract, secondly, by reasoning of
‘termination for default’ and thirdly, issuing notices is not always necessary.

3.1.1 Terms of employment

56
Harsimran Singh, Key Features of Employment Contracts – An Indian Perspective, MONDAQ (April 2016),
https://www.mondaq.com/india/employment-litigation-tribunals/481054/key-features-of-employment-contracts-
an-indian-perspective?login=true
57
Nabha Power Ltd. v. Punjab State Power Corporation Ltd., Civil Appeal No. 179/2017 (India).
58
M.O.H Uduman and Ors. v. M.O.H. Aslum, AIR 1991 SC 1020 (India).
59
M/s National Highways Authority v. M/s BSCPL, O.M.P 472/2013 (India).
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(¶53.) Terms of employment are the responsibilities and obligations of a job mutually
agreeable at the time of hiring.60 The contract enlists all the conditions entailed to be
followed and reciprocated by both the parties.61 In the instant case, there was the
existence of John’s free will when he joined the company in the month of February, 62 to
which he remained slaved to the terms and conditions postulated by the contract.
(¶54.) Presence of the termination clause plays its card. Employment contracts are drafted
with such riders providing for circumstances or events which may trigger the clause
leading to closure of employment.63 Subsequently, when Mike discontinued the contract
of employment of John, he stipulated the following clause as the raison d'etre for
termination:

“If the sales of the company decrease because of any employee,

directly or indirectly, would lead to the termination of such contract
with that employee and the employee will be fired” 64

(¶55.) Furthermore, terminating strictly in compliance with the conditions enumerated is

called ‘legitimate or contemplated termination’.65 In the case at hand, the subjected
termination was duly executed in accordance with the agreed contractual terms and
conditions and hence, is binding on John for dismissal from service.

3.1.2 ‘Termination for default’ stands justified

(¶56.) It is pertinent to note that ‘termination for default’ allows either of the party, in
performance of the contract, with the convenience to terminate, with or without indication
of a particular clause in the contract, if he finds that the other party is not reciprocating its
obligations or unilaterally is in default of its own obligations.66 In such event, the party
perceiving fault of the other may terminate the contract to nullify all further performance.
(¶57.) Before the termination of default is decided, it’s prudent to consider the major two
facts67:

60
Gopal v. Union, Special Civil Application No. 11916/2012 (India).
61
Id.
62
Moot Proposition, Para 5.
63
Anubhav Pandey, Key Clauses in Employment Contract, IPLEADERS (May 29, 2017),
https://blog.ipleaders.in/employment-contracts/.
64
Moot Proposition, Para 12.
65
Laxman Prasad v. Prodigy Electronics Ltd. & Anr., Civil App. 5751/2007 (India).
66
Edwin P. James, Termination for Default and for Convenience of the Government, 5(1) B. C. L. REV. 65
(1963).
67
Id.
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- Terms of contract, as provided in termination clause.

- Circumstances leading to shortfall / backlog of performance
(¶58.) As provided in the fact sheet, Mike was incapacitated by the flux of compelling
events to terminate the contract, i.e. presence of termination clause in the employment
contract, downfall in the company’s sales due to opposing behaviour of John, social
attack on Mike via networking platform, and adverse effect on the goodwill of the
company. Forby, the ruling of the District Court remains valid as these were the non-
negotiable terms and conditions of the employment contract.68

3.1.3 Issuing notice isn’t always necessary.

(¶59.) Employment contracts are quite specific and determined about the process for
terminating employment. Certain exceptional circumstances justify the termination
without adhering to the procedure laid for providing notices.69 The employer may
terminate the employment without serving the notice when the terms of employment have
been breached.70 Inaction or delay on the part of one party can make the procedure given
for termination superfluous as non-adherence of the procedure may not suffer the party
which committed breach due to their inactions.71
(¶60.) In the prime case of Deva Builders,72 the Hon'ble Court held that although the
defendant had not given the requisite notice terminating the contract but it was the
Plaintiff who had committed breach of the contract by not executing the work in
accordance with the terms and conditions of the agreement. The underlying reasoning
appearing behind the fact is that if one of the parties has already manifested its intention
not to bound by contract, the other party cannot be put under unnecessary compulsion of
complying with the technical procedure.73
(¶61.) Consequently, the importance of serving notice to John loses its teeth upon the
decrease in the sales as increasing the business of the company was the very reason why
he was hired in the first place. Therefore, it can well be stated that non-adherence with the
notice procedure may, sometimes, be accepted on the basis of compelling circumstances
of the case.

68
Moot Proposition, Para 13.
69
Air India Ltd. v. GATI Ltd., OMP 1264/2013 (India).
70
Shri Naresh Kumar v. Shri Hiroshi Maniwa & Ors., C.S. (OS) No. 393/2010 (India).
71
D.L.F. Universal Ltd. v. Atul Limited, (2010) 51 GLR 762 (India).
72
M.R. Rattan vs. Nathpa Jhakri Joint Venture, 2002 (3) Shim LC 11 (India).
73
R C Roy v. Union of India & Ors., AIR 1971 Delhi 186 (India).
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3.2 NON – PERMANENCY OF JOHN’S EMPLOYMENT

(¶62.) Clarifications to the fact sheet elucidates the fact that John was not a permanent
employee to the company.74According to the contract of employment, in the issue in
question, the joining date to Plus Pharma Ltd. was February 18, 2016 75. His stay period in
the company were inceptive and the operation duration embarked his initial months in the
company. Hence, John doesn’t classify as a permanent employee of Plus Pharma.
(¶63.) A non-permanent employee, though a valuable asset to the company, remains at the
bid of the appointing authority. His/her employment duration depends largely at the
decisiveness of his employer. Resultantly, the employer has an upper say over employee’s
period of employment. In arguendo, if considered a probationary employee, John’s
termination stands validated.

3.2.1 Employer say over employees’ period of employment

(¶64.) According to at – will employment morality, a company may dismiss without warning
any employee who is performing poorly or violating any norm of the company’s rules. In
fact, the company does not need to state any reason or warm for the employee’s
dismissal.76 An employee can be fired as a result of unsatisfactory work performance,
poor behaviour or attitude that does not fit with the cooperation’s culture, or unethical
conduct that violates the company’s’ policies. 77 Hence, the final say rests with that of the
employer.
(¶65.) In the instant case, Mike, being the director, is the hiring authority of Plus Pharma and
holds the positioning for determining the hiring-firing criterion for his employees. He is
not bound by anything. The decision of terminating John’s employment contract, thus,
remains within his operational powers to act.
(¶66.) If considered otherwise, employers do have a hold of firing its employees for ‘just
cause’, i.e. poor performance or a business downturn.78 In the case at hand, it is evidential
that Plus Pharma lost his ground due to John’s alleged relations with other pharmaceutical
owners.

3.2.2 In arguendo, if considered to be a probationary employee

74
Moot Clarification, 2.
75
Moot Proposition, Para 13.
76
C. McMahon, Morality and the Invisible Hand, PHILOSOPHY AND PUBLIC AFFAIRS, 10(3), 247-277 (1981).
77
DAVID M. WASIELESKI, JAMES WEBER, BUSINESS ETHICS (5ed. Emerald Publishing, 2019).
78
Id.
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(¶67.) Probation period is the interim period of employment having not yet completed three
months of service therein,79 and the permanency of the probationary employee depends
upon his assessment through the test of skills, abilities and knowledge required to pursue
the assigned job. Since the employment is conditional and not permanent, the employer
has the power to fire the probationary employee if the required criterion is tested.80
(¶68.) ‘Unsatisfactory service’ is a ground for termination of the probationary employment.
In Progressive Education Society v. Rajendra81, the Hon'ble Apex Court examined the
correctness of the order passed by the School Tribunal quashing the termination of the
service of an employee on the ground of unsatisfactory performance during the period of
probation.
(¶69.) It has been repeatedly held that the power with regard to termination of the service of
a probationer lies with the appointing authority which is at liberty to terminate the
services of a probationer if it finds the performance of the probationer to be unsatisfactory
during the period of probation.82 The management or the appointing authority is not
required to give any explanation or reason for terminating the services.
(¶70.) In certain cases, principles of natural justice need not be followed before the
termination of services. The Delhi High Court in The Managing Committee of Shiksha
Bharati Senior Secondary Public-School case83 has held that law with respect to
termination of services of a probationer is now well-settled and has to be by a non-
stigmatic order.84
(¶71.) The principles of natural justice have not to be followed before termination of
services of a probationer, where the questionability against a probationer is only for
determining employee's suitability for continuing in service and the result only forms the
motive for removal, then a detailed enquiry in terms of the service rules is not necessary.
(¶72.) Further, the IESO Rules85 clarifies that no notice of termination is required in the case
of temporary workmen (those on probation or bad workers).
(¶73.) In the current scenario, John’s non-permanency position in the company makes him a
vulnerable candidate for termination. In arguendo, if John is said to be under probation,

79
The Industrial Employment (Standing Orders) Act, 1946, No. 20 of 1946 (India).
80
Gurvinder Singh Saini v. Director of Education and Ors., W. P(C) No. 9060/2016 (India).
81
Progressive Education Society v. Rajendra, (2008) 3 SCC 310 (India).
82
State of Punjab v. Dharam Singh, 1968 AIR 1210 (India).
83
The Delhi High Court in The Managing Committee of Shiksha Bharati Senior Secondary Public-School v.
Director of Education and Anr., WP(C) 10573/2009 (India).
84
supra note 26.
85
The Industrial Employment (Standing Orders) Act, 1946, No. 20 of 1946 (India).
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then his termination by Mike stands justified as, even after labelling extraordinary
performance in his initial days, his misconstrued actions in the later period does vitiate
him from his efficacy in the business.

3.3 REPUTATION IS A KEY UNDER BUSINESS ETHICS

(¶74.) Business ethics sets the tone for implementing appropriate business policies and
practices with regards to arguably controversial subjects and provide basic guidelines that
companies choose to follow to gain public approval.86 The contemporary organizational
standards for values and norms governing individuals to ‘do business’ or ‘engage in
commercial transactions’ in accordance to certain set parameters.87
(¶75.) In the business ethics literature, French is a seminal thinker, who argued that firms are
morally responsible for what they do, and hence should be seen as ‘full-fledged’ moral
persons.88
(¶76.) Words went around the office about John sharing illicit relationships with the owners
of other pharmaceutical companies. As a representative, playing major role in increasing
the company’s sale, and as a face to the company, he needs to be devoid of any allegation
as reputation is a key determinant to claim a stake in the market.
(¶77.) Further, John admitting in the interview intensifies and clarifies the fact that he had
relations with other owners.
(¶78.) Personal relations stamp an effect on professionalism. The termination can be claimed
to be lawful as illicit relationship amidst business can be stated as one of the reasons for
banishment. Sharing unconstitutional relation and engaging in a punishable offence89
during the course of employment does affect commercial ethics.

(¶79.) In addition, under the prospects of vicarious liability, an employer is held responsible
for the actions enacted by his employees that are committed during the course of
employment, therefore, making Mike’s say over John’s actions.

3.4 JOHN’S ILLICIT COMMUNIQUÉ AFFECTED THE COMMERCIAL

PERFORMANCE OF THE COMPANY

86
A Z Carr, Is Business bluffing Ethical?, HARVARD BUSINESS REV, 46(1), 143-153 (1968).
87
Business Ethics, STANDARD ENCYCLOPEDIA OF PHILOSOPHy (Nov 17, 2016),
https://plato.stanford.edu/entries/ethics-business/#HiriFiri.
88
Id.
89
Notification issued to the Moot Proposition.
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MEMORIAL for RESPONDENTS [ARGUMENTS ADVANCED]

(¶80.) Fundamental Breach destroys the possibility of further performance and may frustrate
the commercial purpose of the company. Parties may see no sense in performing the
contract. In business parlance, the modern test of fundamental breach or frustration of
commercial contract is “does the occurrence of event deprive the party of substantial
benefit which was intended as consideration for performances?” 90If yes, the termination
stands validated.
(¶81.) Repudiatory breach, one of the underlining principles to terminate a contract validly,
can be stated as a contravention of a stipulated situation which goes so much into the root
of the contract that it makes further commercial performance of a contract impossible.91
Such an incident may occur if the party does not intend to perform its part of under the
contract any further or does acts which are inconsistent with the terms of the contract,
thereby affecting the rights of the other party ultimately.92
(¶82.) In support of the proposition, authority of Bharat Petroleum Corporation Limited93
can be cited wherein due to loss suffered, there was no alternative before them other than
to terminate the contract. The court, in the said case, held that the contract could not be
specifically enforceable and employee cannot continue the distributorship of the agent
who has duped not only the defendants, but even the customers.
(¶83.) The conclusion draws in consistence with another judgement when a party loses a
substantial amount of trade under the contract, then a motive to terminate the contract is
neither wrongful nor unconscionable. It further specifically held that ‘a party's desire to
avoid financial losses constitutes reasonable grounds for declining to perform otherwise
applicable contractual obligations.’94
(¶84.) Decrease in sales of the company due to his attempt of sharing such relation with the
owners of other pharmaceutical with whom Plus Pharma have contracted 95 remains the
key reason and henceforth justifies the termination from the company.

3.5 JOHN’S ATTACK ON MIKE’S SOCIAL STATURE

(¶85.) Accessibility to the internet space and removal of barriers with unfettered capacities
have primarily given pass to cyber defamation, thereby harming the targeted person’s

90
P. Janardhana Shetty v. Union of India and Ors., 1970 (20) FLR 355 (India).
91
VIACOM 18 Media Pvt. Ltd. v. MSM Discovery Pvt. Ltd., (2010) 4CompLJ183(TelecomDSAT) (India).
92
Noble Chartering Inc. v. Steel Authority of India Ltd., I.A. 6150/2018 (India).
93
Bharat Petroleum Corporation Limited & Anr. v. M/s Jethanand Thakordas Karachiwala & Ors., 2000 (1)
BomCR 289 (India).
94
Strategic Outsourcing, Inc. v. Continental Casualty Company, 228 Fed.Appx. 274 (US).
95
Moot Proposition, Para 9.
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MEMORIAL for RESPONDENTS [ARGUMENTS ADVANCED]

goodwill and reputation.96 As interpreted from the Penal Code97, a defamatory statement,
libel in the case at hand, explicitly proposes to derogate the stature of a person by making
or publishing an imputation intending to harm or knowing or having reason to believe that
such imputation will harm the reputation of the person.98
(¶86.) Freedom of Speech and Expression, as enshrined by the Constitution99, aren’t
absolute and comes with ‘reasonable restrictions’.100 The protection of ‘reputation’ of an
individual is inclusive of protection of ‘dignity’ and is a part of constitutionally protected
right to life.101 It falls within the ambit of reasonable grounds of restrictions102 and any
comment or remark which hampers the reputation of another invites liability under the
law of defamation.103
(¶87.) On May 20, 2016 (@9:30 pm), John posted statements on the social networking
platforms, stating that:

“It is ironical that Mike accuses me of maintaining illicit relations

with others when he himself approached me for the same. He is
misusing his position by not crediting my salary in order to satisfy his
personal grudges.” 104

(¶88.) Twitter, along with other social networking platforms, is a strong tool with broad
coverage to disseminate a piece of information.105 John intentionally defamed Mike,
spurring wide enough reason for the termination of the contract.
(¶89.) As Mike stands as a famous personality in the society, he received severe criticism
resulting into (a) downfall of the company’s sale and (b) adversely affecting the goodwill
of the company, thereby hampering the growth of Plus Pharma. No company wanted to
enter into any new contracts with Plus Pharma with the value of the market share going
down.
(¶90.) Therefore, the termination of John, based on contract, stands established.

96
Commissioner v. Shamsher Printing, AIR 1961 SC 98 (India).
97
Indian Penal Code, 1860, § 499, No.45, Acts of Parliament, 1860 (India).
98
Harish Kumar, Law of Defamation in India, 2 (2) INTERNATIONAL JOURNAL OF INSTITUTIONAL & INDUSTRIAL
RESEARCH, 22-25 (2017).
99
INDIA CONSTI. art. 19, cl. 1(a).
100
2 D D BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8 ed. Wadhwa and Co. Law Publishers).
101
Subramanian Sway v. Union of India, AIR 2016 SC 2728 (India).
102
INDIA CONSTI. art. 19, cl. 2.
103
Virendra v. State of Punjab, 1957 AIR 896 (India).
104
Moot Proposition, Para 11.
105
Tata Sons Ltd. v. Greenpeace International & Anr., 178 (2011) DLT 705 (India).
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MEMORIAL for RESPONDENTS [PRAYER]

PRAYER FOR RELIEF

Wherefore, in light of the facts stated, arguments advanced and authorities cited; it is most humbly
prayed and implored before the Hon’ble Supreme Court of India, that is may be graciously pleased
to adjudge and declare:

I. That the Writ Petition filed by Dr. John House is not maintainable.

II. That Section 377 of the Grey Perk’s Penal Code, 1860 does not violate Article 21 of the
Central Perk’s Constitution.

III. That the termination of employment of Dr. John House, based on contract, is valid.

And Pass any other order, direction or relief that it may deem fit in the best interests of justice,
fairness, equity and good conscience.

For this act of kindness, the Respondents shall duty bound forever pray.

PLACE: GREY PERK (Sd/-)

DATE: (COUNSEL FOR THE RESPONDENTS)

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