BEFORE THE HON’BLE

SUPREME COURT OF CHELSEA TERRACE

W.P. (Civil) NO. ____________of 2018

UNDER ARTICLE 139 (A) OF THE CONSTITUTUION OF CHELSEA TERRACE

MS. REBECCA SALOMON...............................................................................PETITIONER

Vs.

THE TRUMPER’S............................................................................................RESPONDENT

&

MR. HAMILTON SMITH...................................................................................PETITIONER

Vs.

THE TRUMPER’S............................................................................................ RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENT

 Co-operative Bank Moot Court

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TABLE OF CONTENTS
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INDEX OF AUTHORITIES..................................................................................................

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

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

ISSUES FOR CONSIDERATION............................................................................................

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

ARGUMENTS ADVANCED....................................................................................................

1. WHETHER THE PRESENT WRIT PETITION FILED IN HON’BLE COURT IS

MAINTANABLE....................................................................................................................

2. WHETHER ACCESSING THE MAIL ID AND TAPPING OF CELL PHONE AMOUNTED TO

THE VIOLATION OF RIGHT TO PRIVACY...............................

3. WHETHER TERMINATION OF THE PETITIONERS IS

JUSTIFIED..............................................................................................................................

4. WHETHER NOT DISCLOSING IMPORTANT DETAILS TO THE EMPLOYER AMOUNTS TO

CHEATING UNDER SECTION 420 OF THE CHELSEA TERRACE PENAL CODE,
1860..........................................................................................................

PRAYER.............................................................................................................................

MEMORIAL ON BEHALF OF THE RESPONDENT Page 2

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INDEX OF AUTHORITIES
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LEGISLATIONS REFERRED:

1. THE CONSTITUTION OF INDIA, 1950.

2. THE INDIAN PENAL CODE, 1860.
3. THE INFORMATION & TECHNOLOGY ACT, 2000.
4. HINDU SUCCESSION ACT, 1956.
5. BANKING REGULATION ACT, 1949.
6. CO-OPERATIVE SOCIETIES ACT, 1912.

CASES REFERRED:

1. P. S. Naidu v. Chittoor District Co-operative Central Bank................................................................

2. Kartick Chandra Nandi v. West Bengal Small Industrial Corporation Ltd.........................................
3. Zoroartisian Co-operative Housing Society Ltd. v. District Registrar, Co-operative Societies
(urban)..................................................................................................................................................
4. Ajay Hasia v. Khalid Mujid Sehravardi..............................................................................................
5. Thalapalam Service Co-operative Bank Ltd. v. Union of India..................................
6. Banabihari Tripathy v. Registrar Of Co-operative........................................................
7. Sabhajit Tewary v. India.............................................................................................
8. Chander Mohan Khanna v. National Council of Education Research and Training. .
9. Satish Kumar v Punjab State Co-operative Bank Ltd.................................................
10. Federal Bank Ltd. v. Sagar Thomas and Others..........................................................
11. S.S. Rana v. Registrar, Co-operative Societies and Oths............................................
12. Mani Enterprises v. Vasavi Co-operative Urban Bank Ltd.........................................
13. K.P Mohammed v State of Kerala...............................................................................
14. Nayagarh Co-operative Central Bank Ltd. v. Narayan Rath.......................................
15. Justice K. S. Puttaswamy (Retd.) and Anr. v. Union Of India and Oths....................
16. Qadir Khan & Oths. v. New Kashmir All City Transport Drivers..............................
17. Sharda v. Dharampal...................................................................................................
 18. Mr ‘X’ v. Hospital ‘Z’.................................................................................................
19. Stengart v. Loving Care Agency, Inc..........................................................................
20. Sitton v Print Direction Inc.........................................................................................
21. Director of Public Prosecutions v. Bignell..................................................................
22. Deteresa v. ABC.........................................................................................................
23. Indu Jain v. Forbes Inc................................................................................................
24. Vijaya Laxmi Tripathi & Ors v. Managing Committee of Working Women's Hostel &
Oths............................................................................................................................
25. Iridium India telecom Ltd v. Motorola Inc..................................................................
26. Narayana Pillai v. Industrial Tribunal.........................................................................
27. Ishar Singh vs. Nationnal Fertilizers...........................................................................
28. Pellegrin v. France......................................................................................................
29. Pearce v. Foster..........................................................................................................
30. Govinda Menon v. UOI..............................................................................................
31. M S Dhantwal v. Hindustan Motors...........................................................................
32. Sharda Prasad Onkarprasad Tiwary v. Central rly......................................................
33. Hatiram Naik vs. Surendra Kumar Malik(1986).........................................................
34. Iridium India Telecom Ltd v. Motorola Inc...............................................................
35. Durgadas Tulsidas Sood vs. State............................................................................
36. Smt. Premlata v. State Of Rajasthan...........................................................................
37. Hari Prasad Chamarai v. Bison Kumar Sureka...........................................................
38. Inder Mohan Goswami v. State Of Uttaranchal.........................................................

BOOKS REFERRED:

1. Datar, P. Arvind. (2007). Commentary on the Constitution of India. 2nd ed. Nagpur: Wadhwa and
Company.
2. Dr. Singhvi, L.M and Swarup Jagdish. (2013). Constitution of India. 3rd ed. New Delhi: Modern Law
Publications.
3. Dr. Singhvi, L.M. (1971). Fundamental Rights and Constitutional amendments. 1st ed. New Delhi:
National Publishing House.
4. Basu, Durga Das. (2007). Commentary on the Constitution of India. 8th ed. New Delhi: Lexis Nexis.
5. Seervai, H.M. (2008). Constitutional law of India. 4th ed. New Delhi: Universal Law Publishing.
 6. Pillai, P.S.A. (2015). Criminal law. 12th ed. Nagpur: Lexis Nexis Butterworths Wadhwa.
7. Gaur, K.D. (2012). Criminal Law: cases & material. 4th ed. New Delhi: Universal Law Publishing.
8. Ratanlal & Dhirajlal. (2012). The Indian penal Code. 8th ed. New Delhi: Bharat Law House.
9. Jain, M.P. (2014). Indian Constitutional Law. 7th ed. New Delhi: Lexis Nexis.
10. Sharma, Vakul. (2011). Information Technology Act: Law and Practice. 3rd ed. New Delhi:
Universal Law Publication.
11. Shukla, V.N. (2008). Constitution of India. 11th ed. Lucknow: Eastern Book Company.
12. Dr. Bangia, R.K. (2009). Indian Contract Act. 14th ed. Faridabad: Allahabad Law Agency.
13. Singh, Avtar. (2017). Law of Contrtact and Specific Relief. 12th ed. Lucknow: Eastern Book
Company.
14. Gupta, Apar. (2011). Information Technology Act. 2nd ed. Nagpur: Lexis Nexis Butterworths
Wadhwa.
15. Norris, Clive and Wilson, Dean. (2003). Surveillance, Crime and Social Control. Hampshire:
Ashgate Publishing Company.
16. Allen, Robin and Crasnow, Rachel. (2002). Employment law and human rights. New York: Oxford
University Press Inc.
17. Kamath, Nandan. (2007). Law relating to computers, internet and e-coomerce- a guide to cyberlaws.
5th ed. New Delhi: Universal Law Publication.
18. Dr. Fatima, Talat. (2016). Cyber Crimes. 2nd ed. Lucknow: Eastern Book Company.

WEBSITES REFERRED:

1. Manupatra Online Resources, http://www.manupatra.com.

2. Lexis Nexis Academica, http://www.lexisnexis.com/academica.
3. Lexis Nexis Legal, http://www.lexisnexis.com/in/legal.
 Co-operative Bank Moot Court

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STATEMENT OF JURISDICTION
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THE HON’BLE SUPREME COURT HAS JURISDICTION TO TRY, ENTERTAIN AND DISPOSE THE
PRESENT CASE BY VIRTUE OF ART 139A(1) OF THE CONSTITUTION OF CHELSEA TERRACE
WHICH READS AS,

Art 139A(1): “Where cases involving the same or substantially the same questions of law are pending before
the Supreme Court and one or more High Courts or before two or more High Courts and the Supreme
Court is satisfied on its own motion or an application made by the Attorney General of India or by a party
to any such case that such questions are substantial questions of general importance, the Supreme Court
may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the
cases itself.”

MEMORIAL ON BEHALF OF THE RESPONDENT Page 6

 STATEMENT OF FACTS
1. Trumper’s Co-operative bank is a well known bank in Chelsea Terrace. They believe in
ethical transaction while dealing with its customers, and have several guidelines to screen its
employees and their activities.

2. Ms. Rebecca Salomon is an employee since the last 5 months from 25th May 2017. The first
customer of Ms. Salomon is Mr. Daniel who is one of the oldest customer of the bank who
trusted Mr. Trumper’s, who previously handled his account, blindly for all the transactions.

3. Mr. Daniel noticed transactions that were not instructed to him and were made for online
shopping. Mr. Daniel disclosed this to Mr. Percy, the Manager of the bank who further
disclosed it to Mr. Charlie in a meeting informed them that he was suspecting Ms. Salomon as
she was then handling the account and decided to keep an eye on her by hacking her e mail id
and tapping her phone number but they found nothing.

4. In the month of November Ms. Salomon noticed some strange activities in her cell phone and
it was confirmed that her phone was being tapped by a nearby shop. She filed a complaint in
Chelsea police station and the police found out that Mr. Percy and Mr. Charlie had taken this
step to keep an eye on her. During this investigation another revelation was that it was not Ms.
Saloman, rather it was Mrs. Trentham who was doing those transactions. Mr. Daniel was
compensated on behalf of the bank.

5. Mr. Hamilton Smith, another employee of the Bank was working with the Bank since August,
2017. He had same features as that of Ms. Salomon but the two denied being siblings. The
bank has another policy that it does not employ two persons from same family or blood
relatives. However, the hacking of mail id discloses the fact that Mr. Smith and Ms. Solomon
were uterine siblings. On knowing this fact the Trumper’s rescinded the employment contract
with both Mr. Smith and Ms. Salomon on 15th of November, 2017.

6. Mrs. Salomon along with some other employees of the bank had filed a Writ petition before
the High Court of Chelsea against the Trumper’s Co-operative Bank and Mr. Daniel.

7. Also, Mr. Smith, aggrieved by the decision of Trumper’s, filed a civil suit before the Civil
court of Chelsea stating that Trumper’s decision is arbitrary and he has not been given any
chance to defend his position. The lower court has decided in favour of Trumper’s . It was
also observed that not disclosing important details to the employer also amounts to cheating
under Section 420 of Indian penal Code, 1860.

8. Aggrieved by the decision of the lower court Mr. Smith has filed a Writ petition i.e. Mr. Hamilton
Smith vs. The Trumper’s before the High Court of Chelsea on 23rd of December, 2017 contending
that the rescission of employment contract was not fair on the part of the employer.

9. Considering the issues involved in Ms. Rebecca Salomon vs. The Trumper’s and Mr. Hamilton
Smith vs. The Trumper’s the Supreme Court decides to club both the petitions under the Supreme
Court Rules, 2013 and has fixed a date on 24th and 25th March, 2018.
 Co-operative Bank Moot Court

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ISSUES RAISED
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==

ISSUE NO.1: WHETHER THE PRESENT WRIT PETITION FILED IN HON’BLE COURT IS
MAINTAINABLE.

ISSUE NO.2: WHETHER ACCESSING THE MAIL ID AND TAPPING OF CELL PHONE
AMOUNTED TO THE VIOLATION OF RIGHT TO PRIVACY.

ISSUE NO.3: WHETHER TERMINATION OF THE PETITIONERS IS JUSTIFIED.

ISSUE NO.4: WHETHER NOT DISCLOSING IMPORTANT DETAILS TO THE EMPLOYER

AMOUNTS TO CHEATING UNDER SECTION 420 OF THE CHELSEA TERRACE PENAL
CODE, 1860.

MEMORIAL ON BEHALF OF THE RESPONDENT Page 9

 Co-operative Bank Moot Court

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MEMORIAL ON BEHALF OF THE RESPONDENT Page 10

 SUMMARY OF ARGUMENTS
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ISSUE NO.1: WHETHER THE PRESENT WRIT PETITION FILED IN THE HON’BLE COURT IS
MAINTANABLE

The counsel humbly submits before the Hon’ble court that the writ petition filed under Art 226 of the
Constitution of Chelsea Terrace is not maintainable as most of the writs can only be filed against the state or
against an individual when it is a matter of public concern, whereas in the present case Co-operative bank is
a private individual which neither comes under the definition of the state under Art 12 of the Constitution
nor its serves public functions.

ISSUE NO.2: WHETHER ACCESSING THE MAIL ID AND TAPPING OF CELL PHONE
AMOUNTED TO THE VIOLATION OF RIGHT TO PRIVACY.

The counsel humbly submits that accessing the mail id and tapping of the cell phone by the respondent does
not in any way violated petitioner’s right to privacy. Right to privacy being a fundamental right is subject to
certain restrictions and is not absolute. Moreover, accessing of mail id is justified in accordance with Sec 66
of the IT Act of Chelsea Terrace. The right to privacy cannot be enforced against the bank in the present case
because it is a private individual.

ISSUE NO.3: WHETHER TERMINATION OF THE PETITIONERS IS JUSTIFIED.

It is humbly submitted before the Hon’ble court that the termination of the petitioners is justified. They
being inconsistent in faithful discharge of their duties committed misconduct which rationalizes their
immediate dismissal. In addition, it was also found that they belong to the same family and were actually
related by blood which is clearly against the bank’s policy of recruitment.

ISSUE NO.4: WHETHER NOT DISCLOSING RELEVANT DETAILS TO THE EMPLOYER

AMOUNTS TO CHEATING UNDER SEC 420.

Concealment of vital facts even after knowing bank’s policy and despite having sufficient time to disclose it
shows dishonest intention on the part of the petitioners which amounts to fraud.
 ARGUMENTS ADVANCED
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ISSUE NO.1: WHETHER THE PRESENT WRIT PETITION FILED IN THE HON’BLE COURT IS
MAINTANABLE.

It is humbly contended before the Hon’ble Court that the writ petition filed in the High Court [Hereinafter
referred to as “HC”] is not maintainable because the Trumper’s Co-operative bank does not come under Art
12 of the Constitution of Chelsea Terrace and it does not serve any public functions . The fundamental
rights are claimed against ‘the state’ and its instrumentality and not against private bodies.

Power of HC to issue writs is under Art 226 of Chelsea Terrace Constitution.

“Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in
relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases,
any Government, within those territories directions, orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of
the rights conferred by Part III and for any other purpose.”

1. P. S. Naidu v. Chittoor District Co,-operative Central Bank 1, a Division Bench of this Court held that an
order of punishment made by a society against its employee cannot be questioned by the latter by way of
writ petition. The Bench pointed out “as far as this Court is concerned, it has uniformly taken the view that a
writ petition does not lie against a Co-operative society especially when it relates to matters concerning the
Society and its employees.”

2. Art 12. ‘In this part, unless the context otherwise requires, "the State" includes the Government and
Parliament of India and the Government and the Legislature of each of the States and all local or other
authorities within the territory of India or under the control of the Government of India’.’
 Co-operative Bank Moot Court

The definition of the ‘state’ given in Art 12 is only for the purpose of part III of the Constitution, clearly
indicates that the object to this definition is to specify the entities, bodies, or authorities against whom the
fundamental rights can be enforced. Therefore, the aggrieved party cannot have remedy unless the opposite
party would fall within the definition of “state”.2

Moreover, Art 19(1)(c) which clearly states that --“All citizens shall have the right to form associations or
unions or Co-operative societies”.

Rights of the citizens to form Co-operative societies voluntarily, is now raised to the level of a fundamental
right and the State shall endeavour to promote their autonomous functioning.

By virtue of the 97th Constitutional Amendment Act 2011- “Under the above article the words “Co-
operative societies” are added. Societies are, however, not treated as units of self-government, like
Panchayats and Municipalities”

i. Art 243 ZH defines Co-operative societies.

Art 243ZH(c) --““Co-operative society” means a society registered or deemed to be registered under any
law relating to Co-operative society for the time being enforced in any state;”

Art 243ZH(d) – ““multi state Co-operative society” means a society with objects not confined to one state
and registered or deemed to be registered under any law for the time being in force relating to Co-
operatives;”

ii. Art 43B reads as follows --“The State shall endeavour to promote voluntary formation, autonomous
functioning, democratic control and professional management of Co-operative societies”.

According to Sec 38(2) of the Multistate Co-operative Society Act – “Subject to the provision of this act ,
the rules and the bye laws , the ultimate authority of a multistate Co-operative society shall vest in the
general body of its member. The members of multi state Co-operative society shall elect director who shall
be member of board”.

From the above articles it can be clearly stated that Co-operative societies are registered under the Co-
operative Societies Act and they are autonomous bodies. Therefore, the bank being registered under the Co-
operative Societies Act is a self-governing body.

MEMORIAL ON BEHALF OF THE RESPONDENT Page 13

Reforms in the BR Act 1949

 “The CEOs of the cooperative banks would be appointed by the respective banks themselves and not
by the State government. However, as these are banking institutions, RBI will prescribe the
minimum qualifications of the CEO to be appointed and the name proposed by the Co-operative
bank for the position of CEO would have to be approved by the RBI;
 All Co-operative banks would be on par with the commercial banks as far as regulatory norms are
concerned;”

A Co-operative society is not ‘the state’ within Art 12 unless test formulated in the Ajay Hasia case are
satisfied.3

In Ajay Hasia v. Khalid Mujid Sehravardi, 4–

The Constitution Bench laid down following tests that may be summarized as,

1. If the entire share capital of the body is held by the government.

2. Where the financial assistance of the State is so much as to meet almost entire expenditure of the
corporation, it would afford some indication of the corporation being impregnated with governmental
character.

3. Whether the corporation enjoys monopoly status which is the State conferred or State protected.

4. Existence of deep and pervasive State control may afford an indication that the Corporation is a State
agency or instrumentality.

5. If the functions of the corporation are of public importance and closely related to governmental functions,
it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.
As stated in the above case the body should be financially, functionally and administratively dominated, by,
or under the control of the government, after which it is considered to be “the state”. Such control must be
particular to the body in question and must be deep and pervasive.

In the case of Thalapalam Service Co-operative Bank Ltd. v. Union of India,5

A Bench of Justices K S Radhakrishnan and A K Sikri held that, “Co-operative Societies, will not fall within
the expression ‘State’ or ‘instrumentalities of the State’ within the meaning of Article 12 of the Constitution
and hence not subject to all constitutional limitations as enshrined in Part III of the Constitution.”...

The societies are not statutory bodies and are not performing any public function and will not come within
the expression ‘the state’ under Art 12 of the Constitution.

It is humbly contended implying the above case that there is no financial control of the government over the
Co-operative banks.

This view was also reiterated by the Hon’ble SC in Banabihari Tripathy vs Registrar Of Co-operative6
where it was held that-

“A Co-operative society on merely getting registered under the Co-operative Societies Act does not acquire
any status of becoming an authority to render it amenable to the writ jurisdiction of the High Court.

Thus, Indian Council Of Scientific Research a body registered under the societies Registration Act (thus a
non – statutory body), was not a ‘state’.”7

Also, NCERT is a society registered under the Society Registration Act, government control is confined as
the fund are properly utilized but is outside the scope art 12. 8 Therefore, even though the bank is a Co-
operative bank, it is not ‘the state’ within the meaning of art 12 as it was clearly stated in Satish Kumar v.
Punjab State Co-Op.Bank Ltd.9
Therefore, it is well established by pronouncement of above cases that a Co-operative Bank is not an
instrumentality or agency of ‘the state’.

In Federal Bank Ltd. v. Sagar Thomasand Others 10 “ it was held that merely because Reserve Bank of
India lays the banking policy in the interest of the banking system or in the interest of monetary stability or
sound economic growth having due regard to the interests of the depositors etc. as provided under Section
5(c)(a) of the Banking Regulation Act does not mean that the private companies carrying on the business or
commercial activity of banking, discharge any public Function or public duty. These are all regulatory
measures applicable to those carrying on commercial activity in banking and these companies are to act
according to these provisions failing which certain consequences follow as indicated in the Act itself. It is
now a judicially accepted norm that private interest has to give way to the public interest. If a private
property is acquired in public interest it does not mean that the party whose property is acquired is
performing or discharging any function or duty of public character though it would be so for the acquiring
authority”.

The respondent does not serve a public function even though it is involved in banking, which is for the
people. Therefore, the bank is a private individual.

In S.S. Rana v. Registrar, Co-operative Societies and oths.11 it was held that-

The Co-operative societies registered or deemed to be registered under the Co-operative Societies Act,
which are not owned, controlled or substantially financed by the State or Central Government or formed,
established or constituted by law made by Parliament or State Legislature. Its functions like any other
cooperative society are mainly regulated in terms of the provisions of the Act, except as provided in the
bye- laws of the Society. The State has no say in the functions of the Society.

The present case does not satisfy any of the above conditions. As it has been clearly stated in Art 43Bthat
Co-operative society is a self-governing body which is formed voluntarily by the members. Moreover, the
appointment of the members is done by the general body itself and the government merely has regulatory
control over it. Societies are expected not only to ensure autonomous and democratic functioning of Co-
operatives, but also accountability of the management to the members and other share stake-holders.
Banabihari Tripathy v. Registrar, Co-operative Societies and others,12 was a case of Co-operative society,
the function of which was merely to finance Co-operative societies, to encourage their development - the
control always being with the General Body. Powers exercised by the Registrar of Co-operative Societies
and others under the Co-operative Societies Act are only regulatory or supervisory in nature, which will not
amount to dominating or interfering with the management or affairs of the society so as to be controlled.
Management and control are statutorily conferred on the Management Committee or the Board of Directors
of the Society by the respective Co-operative Societies Act and not on the authorities under the Co-operative
Societies Act.

The share capital is not held by the government whereas it is distributed among the members of the Co-
operative society only. Neither the government provides optimum amount of expenditure nor does it enjoy
monopoly over the society, as the bye-laws are formulated by the society itself to deal with the internal
matters. Banks are not ‘the state’, although they obtain a licence from the Reserve Bank, until and unless
deep and pervasive control of state over the authority is present. 13 The guidelines of the RBI is followed for
the general functioning of the bank only. Societies are, of course, subject to the control of the statutory
authorities like Registrar, Joint Registrar, the Government, etc. but it cannot be said that the State exercises
any direct or indirect control over the affairs of the society which is deep and pervasive.

Mere regulatory control whether under the statute or otherwise would not serve to make a body a part of
‘the state.’14

In these days of planning and the state’s intervention in various sectors ,the mere fact that they are aided and
controlled by the government to some extent would not be sufficient to hold that they are “instrumentalities
of state” within the meaning of Art 12 of the Constitution . In spite of the aid, regulation and control by
various statutes they remain essentially private institutions or organisations.15

It is humbly submitted that the writ petition filed before the HC by the petitioners is not maintainable as,
merely because a Co-operative society is registered under the Act, it does not become amenable to the writ
jurisdiction under Art 226 or comes in the category of 'other authorities' under Article 12.16
It is humbly submitted that the writ petition filed before the HC by the petitioners is not maintainable as,
merely because a Co-operative society is registered under the Act, it does not become amenable to the writ
jurisdiction under Art 226 or comes in the category of 'other authorities' under Article 12.

It is well settled that the general regulations under an Act, like the Companies Act or the Cooperative
Societies Act, would not render the activities of a company or a society as subject to control of the State.
Such control in terms of the provisions of the act are meant to ensure proper functioning of the society or
else the State or statutory authorities would have nothing to do with its day-to-day functions.

In light of the cumulative facts as established, the body is not financially, functionally and administratively
dominated by or under the control of the government. Merely regulatory control is present and it would not
serve to make a body as ‘the state.’

Hence the petition is not maintainable.

WHETHER ACCESSING THE MAIL ID AND TAPPING OF CELL PHONE AMOUNTED TO
THE VIOLATION OF RIGHT TO PRIVACY?

Counsel humbly submits before this Hon’ble court that hacking of the e-mail id didn’t lead to the violation
of right to privacy of the petitioner as it was done to check the suspicious act of the employee which was
against the policies of the bank.

It is submitted that as per the pronouncement of the Hon’ble Supreme Court of India in Justice K. S.
Puttaswamy (Retd.) and Anr. vs Union Of India And Ors 17, right to privacy is a fundamental right. But no
fundamental right is absolute and is subject to certain restrictions.18

A. No fundamental right is absolute

Although the constitution clearly safeguards the right to privacy as a part of right to life under Art 21 ,the
fact that privacy is a fundamental right, it is well established principle that it is not an absolute right and that
it may be lawfully restricted for the prevention of crime, disorder or protection of health or the protection of
other’s right and freedom19.

The right to privacy in public is a relatively weak right whilst the prevention of crime is an important social
objective.

It is humbly contended by the counsel that Trumper’s Co-operative Bank believed in ethical transaction
while dealing with its customers and hacking of the mail id was the result of suspicion of the irregular
activities in the bank account of the complainant customer. Therefore, the respondent’s right to monitor and
have access to its computer resources and all material thereon is well founded.

This view was also reiterated in the case of Sharda v. Dharampal20

SC ruled that right to privacy in terms of Art 21 of the Constitution is not an absolute right. If there were a
conflict between fundamental rights of two parties, that right which advances public morality would prevail.
In view of the pronouncement of the Hon’ble SC in the aforementioned case, the bank has the right to
safeguard its policy of corruption free environment and ethical transactions. Therefore, it has a right to be
informed about all the activities taking place within its premises. The bank had given the petitioner the duty
to handle the customer’s account who was complaining about the unknown transactions from his account.

The bank holds all the rights to ensure that its policy is being followed by all of its employees. The bank in
order to prevent the crime of embezzlement from the customer’s account, accessed the mail id of the
petitioner which is not the violation of any of her rights. Employer’s right to prevent any crime in his
premises prevails over the right of expectancy of privacy by the employee. Bank holds the right to check
upon its employees’ activities because if anything is done by an employee then the bank would be
vicariously liable for that act.

This issue also came up for discussion in the case of Mr ‘X’ v. Hospital ‘Z’21 -

where the Hon’ble court ruled that the public disclosure of even true private facts may amount to an
invasion of the right of privacy which may sometimes lead to the clash of one person’s ‘right to be let alone’
with another person’s right to be informed. The right is not absolute and may be restricted for the prevention
of crime, disorder or protection of health or morals or protection of rights and freedom of others.

According to the bank’s policy, the bank reserves and will exercise the right to review, audit, intercept and
access all matters on the banks media system and services at any time with or without notice. E-mail and
voice mail message, internet use and communication and computers files are considered part of the bank’s
business and client’s records such communication is not considered to be private or personal to any
individual.22

B. Accessing information from employee’s email id by the employer is not ‘unauthorised access’

Sec 66 of the IT Act, 2000 expressly deals with -‘Computer related offences’

“If any person, dishonestly or fraudulently, does any act referred to in section 43, he shall be punishable
with imprisonment for a term which may extend to three years or with fine which may extend to five lakh
rupees or with both.”
Therefore, Chelsea Terrace has declared hacking to be a criminal offence only if it satisfies the prerequisites
of dishonesty or fraud.

The definition of ‘dishonestly’ is enumerated in Sec 24 of Chelsea Terrace Penal Code as – “whoever
does anything with the intention of causing wrongful gain to one person or wrongful loss to another person,
is said to do that thing “dishonestly”.”

The definition of ‘fraudulently’ is enumerated in Sec 25 of IPC as– “A person is said to do a thing
fraudulently if he does that thing with intent to defraud but not otherwise.”

The term denotes an element of deceit and secrecy and actual or possible injury.23

Thus a mental condition will not fit into the expression of “dishonestly” unless the intention is to cause
either wrongful loss to someone or wrongful gain to someone.24

In the case on hand, the bank on getting the complaint of the customer, accessed Ms Saloman’s id only, who
was dealing with the said customer. If there were any wrong intentions on the part of the bank it could have
used the same opportunity to intrude into ids of other employees as well. This proves that while accessing
the id of Ms. Saloman the bank had no mala fide intention in causing any wrongful loss to her but it was
only in furtherance of its objective to clarify whether or not appropriation of money had been committed by
the petitioner.

Furthermore, the bank had no purpose to deceit the petitioner as it was just to clarify its suspicion and to
ensure that no unethical behaviour is carried out by any of the employees.

In Chelsea Terrace’s law, the word ‘access’ or ‘unauthorised access’ is not used in Sec 66 but in the
opening line of Sec 43, the words used are “if any person without permission of the owner or any other
person who is in charge of a computer system, or computer network”, which in reality equivalent to
“unauthorised access”. The IT act deals with such “unauthorised access” in section 43(a) where the activity
renders the doer criminally liable only if it is done “dishonestly” or “fraudulently” as required by Sec 66.
Sec 43 of the IT Act states – “If any person without permission of the owner or any other person who is
incharge of a computer, computer system or computer network-

(a) Accesses or secures access to such computer, computer system or computer network

He shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so
affected.”

Ms. Salomon, the employee of the bank used the connection and the computer provided by the bank during
her course of business. Therefore, she being an employee is not the owner of the network and the computer
she used in the bank.

Moreover, the bank, being the provider, is the owner of the network and the computers. This implies that the
bank (owner) is authorised to access Ms. Salomon’s (employee) computer system and the network even
without her permission and it therefore doesn’t amount to ‘unauthorised access’ by the respondent. 25

This issue also came up for discussion in the case of Director of Public Prosecutions v. Bignell.26 It was
reiterated in this case that “an offence had not been committed since the employee was authorised to access
the relevant computer system, i.e. it did not matter that the information obtained was not the information
that the employee was authorised to access.”

C. Accessing the email id of the petitioner by the bank is within the reasonable expectation of privacy.

The counsel humbly asserts that by accessing e-mails on a personal account through bank’s computer and
server, the petitioner voluntarily subjected her e-mail to be monitored by the bank.

The threshold determination that has the greatest practical importance turns on the plaintiff’s expectations of
privacy. If the plaintiff had no reasonable expectation that her activities would remain private, she has no
legally cognizable privacy interest to redress.27
The bank being the employer is authorised to access information from its computer systems and server
which is used by its employees. Therefore the petitioner’s contention that her privacy was breached is
vacuous.

Under America’s Electronic Communication Privacy Act an employer is allowed eavesdropping if the
employees are notified in advance or if the employer has reason to believe the company’s interests are in
jeopardy.

Therefore, an employer who provides a network for his employees to transit e-mail communications may
intercept and monitor such e-mail communications if it is done in the normal course of business and if such
monitoring is a necessary incident to the rendition of the services or to the protection of the employer’s
rights and property.28

In the present case, the bank had every reason to believe that the culprit for the appropriation of money
from Mr. Daniel’s account is Ms. Salomon as at that time she was handling his account. The respondent
being a reputed bank in the country, seeing its reputation in jeopardy reserves the right to check Ms.
Salomon’s id and tap her phone. Therefore, taking such a huge step by the bank should be rendered
reasonable and justified as the relationship between the bank and that of the customer of trust and
confidence, wherein the customer entrusts his valuables with the bank.

D. Right to privacy cannot be enforced against the bank

From the constitutional scheme and a reading of the foregoing pronouncements, it is apparent that in order to
seek enforcement of a fundamental right, the dispute must not be between two private individuals but must
be between an individual and ‘the State’. Even enforcement of the fundamental right of freedom of
expression under Art 19(1) has to be enforced against the State. It is well settled that other than violation of
Art17, Art 23 and Art 24 by private parties, disputes between two private parties cannot be urged to be an
invasion of a fundamental right.29

The claim of the petitioner that her privacy was breached cannot be enforced against the bank as it is a
private individual.
This view was reiterated by the Hon’ble Supreme Court in Vijaya Laxmi Tripathi & Ors Vs. Managing
Committee of Working Women's Hostel & Ors.30 the Court had held thus : In view of the above, it has to be
held that Article 21 cannot be enforced against a private person.

In view of placing reliance on the judgment in Zoroastrian Co-operative Housing Society Ltd. V. District
Registrar, Co-operative Societies (Urban), 31 the counsel would like to submit that the bank in the instant
case does not come under the term ‘the state’ under Art. 12 of the constitution.

As a result, the claim of the petitioner of breach of right to privacy is completely baseless and that the
respondent is absolutely innocent of the allegations levelled against it. They are not in any way connected
with the offence.
ISSUE NO 3: WHETHER TERMINATION OF THE PETITIONERS IS JUSTIFIED?

It is humbly submitted before the Hon’ble Court of Chelsea Terrace that the termination of the petitioners is
justified. They being inconsistent in faithful discharge of their duties committed misconduct which
rationalizes their immediate dismissal. In addition, it was also found that they belong to the same family and
were actually related by blood which is clearly against the bank’s policy of recruitment.

A. The petitioners belong to the same family and are related by blood.

Kingsley Davis describes family as a group of persons whose relations to one another are based upon
consanguinity and who are therefore kin to one another.32

Consanguinity is derived from a Latin word ‘Consanguinitas’ which means affinity .

Affinity in turns mean –The Relationship that a person has to be blood relatives of a spouse by virtue of the
marriage.33

The doctrine of affinity developed from a Maxim of Canon Law that a Husband and Wife were made one
by their marriage. A connection formed by marriage, which places the husband in the same degree of
nominal propinquity to the relations of the wife, as that in which she herself stands towards them, and gives
to the wife the same reciprocal connection with the relations of the husband.

“Relationship by blood includes relationship by full blood, half blood and uterine blood. Heirs of full blood,
however, preferred to half blood. Two person are to be related to each other by uterine blood when they
descendant from a common ancestor, but by different husbands. Relatives by uterine have legitimate kinship
and can therefore claim relationship by blood with the intestate. The relationship would necessarily be
through one or more females and those who satisfy the above requirement would be included among the
cognate of the intestate.”34
Sociologically, for Mr. Smith and Ms. Salomon to be considered a part of one family, their relationship is
one which is based upon consanguinity of affinity. Each one’s relationship with their mother links them to
their mother’s spouse through an affinal relation, which brings them in the same family.

Half siblings only share DNA from one parent. The genetic information from the other parent is different.
DNA are the basic unit of genetic information .Each parent passes half their DNA to each of their children.
So each egg has half of mother’s DNA and each sperm has half of father’s DNA. When the egg and sperm
come together, the half from mother and the half from father make a whole baby. For half-siblings, they
only share one parent, whether it is their mother or their father .So two siblings with the same mother have
different halves from their fathers.

Half-siblings with the same mother will share a bit more genetic information than half-siblings with the
same father. This is because the entire DNA in the mitochondria (mtDNA), is from the mother and none
from the father. This is because only eggs provide the mitochondria for the embryo (the sperm doesn’t give
any to the embryo). So half-siblings with the same mother have the same mtDNA, but half-siblings with the
same father have different mtDNA, because they each got it from their mothers. This extra mtDNA doesn’t
add up to much of a difference though because it makes up less than 0.01% of our total DNA.35

In the present case Ms. Salomon and Mr. Smith were uterine siblings , as inferred when the bank authorities
accessed Ms. Salomon’s email-id for some other purport, they are related to each other by blood. Uterine
siblings are half siblings who have the same mother but different fathers. Mr. Smith and Ms. Salomon
therefore have a common mother which implies that they have half the DNA from their mother, which is
0.01% more than the fathers DNA to remove any element of doubt, which is the same in both of them,
which leads us to infer a blood relation between them.

Also, the employment is the contract of service between the employer and the employee where under the
employee agrees to serve the employer subject to his control and supervision.36
Consequently, this proves that the petitioners are from the same family or related by blood which is against
the policy of the bank. On prior inquiry they concealed the fact and denied being siblings. Later on, when
this fact was disclosed before the bank, it terminated their jobs as it amounts to breach of contract of service
by hiding a vital fact that could have affected their chances of getting employed, which also results in
breach of trust, thus also violating the Contract Act, 1872 and hence the termination of the petitioners is
justified.

B. The petitioner’s suit for termination is not maintainable as it did not follow the rules of Industrial
Dispute Act, 1947.

The counsel humbly submits that the suit is not maintainable as the Civil courts do not have jurisdiction to
try a suit of Industrial Dispute.

Sec 2A , Industrial Dispute Act states – “ Dismissal, etc., of an individual workman to be deemed to be an
industrial dispute.- Where any employer discharges, dismisses, retrenches, or otherwise terminates the
services of an individual workman, any dispute or difference between that workman and his employer
connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to
be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the
dispute.”

Also, Sec 11A confers power on the Labour Courts, Tribunals and National Tribunals to give proper relief in
case of discharge or dismissal of workman.

It was reiterated in the case of Ishar Singh v. Nationnal Fertilizers 37: “jurisdiction to try a suit is ousted
when events necessary for applying section 2A of the Industrial Dispute Act arose on the date of filing the
suit”., 1991, SCC 649.)

In Pellegrin v. France 38 it was stated that when the claim in issue relates to a ‘purely economic’ right-such
a payment of salary-or an ‘essentially economic’ one and does not mainly call in question ‘the authorities’
discretionary powers’

In the present case therefore, the petitioner’s suit in the Civil Court is not maintainable because the dispute
between the bank and the petitioner was purely an industrial dispute as it
complies with all the requirements of Section 2A of the Industrial Dispute Ac,t 1947 and therefore the Civil
Courts jurisdiction to try such a suit is ousted.

C. Petitioners being inconsistent in faithful discharge of their duties committed ‘misconduct’.

Misconduct is defined as-“Misconduct spreads over a wide and hazy spectrum of industrial activity; the
most seriously subversive conducts rendering an employee wholly unfit for employment to mere technical
default are covered thereby.”

‘Misconduct’ covers a large area of human conduct. It can be an act that prejudices the smooth functioning
of the establishment where the actor is employed. Grounds for misconduct can be trivial such as neglect of
work or more serious like insubordination or riotous behaviour during working hour s.

It was held by Queen’s Bench Decision in Pearce v. Foster39, “If a servant conducts himself in a way
inconsistent with faithful discharge of his duty in the service, it is misconduct which justifies immediate
dismissal. That misconduct, according to my view, need not be misconduct in carrying of the service or the
business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to
the reputation of the master and the master will be justified, not only if he discovered at the time, but also if
he discovers it afterwards, in dismissing that servant.”

Similar view was affirmed by the Hon’ble SC in Govinda Menon v. Union of India40.

Schedule 1, Clause 14(3) of Industrial Employment (Standing Orders) Central rules 1946, provides for
certain acts and omissions as misconduct these acts or omissions include willful insubordination,
disobedience, theft, fraud, dishonesty and habitual negligence.

The SC in M S Dhantwal v. Hindustan Motors41 held that the grounds mentioned in the Standing Orders
are not exhaustive but merely illustrative. Employers are free to frame their own standing orders taking into
account the peculiarities and requirements of their own establishment.
In the case of Sharda Prasad Onkarprasad Tiwari v. Central Rly42, “An employer may dismiss his
employee for the following reasons mentioned by the Bombay High Court are:

 Where an act or conduct of the servant is prejudicial or likely to be prejudicial to the interests of the
master or to the reputation of the master;
 Where the act or conduct of the servant is inconsistent or incompatible with the due or peaceful
discharge of his duty to his master;
 Where the act or conduct of a servant makes it unsafe for the employer to retain him in service;
 Where the act or conduct of the servant is so grossly immoral that all reasonable men will say that
the employee cannot be trusted;
 Where the act or conduct of the employee is such that the master cannot rely on the faithfulness of
his employee;

Yet, one must remember that whether dismissal from service is warranted is a question whose answer
depends upon the facts and circumstances of each case.”

In the present case, the act of the petitioners is totally immoral and is against the professional conduct. As
the Trumper’s Co-operative bank is well known bank in Chelsea Terrace, they had many guidelines to
screen its employees and their activities and work on ethical transactions the misconduct done by the
employees by concealing the requisite facts of not being related by blood or not belong to the same family is
amount to fraud and hence termination of the petitioners is justified and fair.
ISSUE NO.4: WHETHER NOT DISCLOSING IMPORTANT DETAILS TO THE EMPLOYER
AMOUNTS TO CHEATING UNDER SECTION 420 OF THE CHELSEA TERRACE PENAL
CODE, 1860?

The counsel humbly contends that the petitioners should be held liable for cheating under Section 420 of
Chelsea Terrace Penal Code, 1860. The Civil Court of Chelsea had also given its judgment in favour of the
respondent.

Section 420 is enumerated as-

“Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person
, or to make , alter or destroy the whole or any part of a valuable security, or anything which is signed or
sealed , and which is capable of being converted into a valuable security , shall be punished with
imprisonment of either description for a term which may extend to seven years , and shall also be liable to
fine.”

Thus the essential ingredients of Section 420 includes-

i) Cheating
ii) Dishonest inducement to deliver property or to make , alter or destroy any valuable security or
anything which is sealed or is capable of being converted into a valuable security and
iii) Mens rea of the accused at the time of making the inducement.43

The term Cheating has been defined in Sec 415 of Chelsea Terrace Penal Code as,

“Whoever by deceiving any person, fraudulent or dishonestly induces the person so deceived to deliver any
property to any person , or to consent that any person shall retain any property, or intentionally induces the
person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived ,
and which act or omission causes or is likely to cause damage or harm to that person in body , mind,
reputation or property, is said to “cheat” ”

Explanation –“ A dishonest concealment of facts is a deception within the meaning of this section”.
The counsel humbly submits that according to the bank’s policy, no two persons from the same family or
those who are related by blood are appointed . Petitioner even though well versed with the fact, concealed
the vital part of being uterine sibling as well as refused to have any relation between them even before and
after the appointment .

In the case of Iridium India telecom ltd v. Motorola Inc. 45 it was decided : “ Non- disclosure of relevant
information would treated as a misrepresentation of facts leading to deception.”

For the offence of cheating there must be a deception which should precede the fraudulent or dishonest
inducement and as it is can be established that the intention of the accused was dishonest at the time of
making the promise.46

Further in the case of Durgadas Tulsidas Sood v. State47 it is noted that the word "property" occurring
in Section 420 of the Chelsea Terrace does not necessarily mean that the thing of which a delivery is
dishonestly desired by the person who cheats must have a money value or a market value in the hand of the
person cheated. Even if the thing has no money value in the hand of the person cheated, but becomes a thing
of value in the hand of the person who may get possession of it as a result of the cheating practiced by him,
it would still fall within the connotation of the term "property".

Also in Smt. Premlata v. State of Rajasthan48 it was held that,

In all public services, appointment is made by means of an appointment letter which is to be issued after the
selection process is over. The appointment letter is, therefore, the document which shows that the person in
whose favor it has been issued is selected and is being offered the post mentioned in the letter. Such a
document must be treated as property within the meaning of Sec 420 Chelsea Terrace Penal Code.
Section 420 talks about ‘delivery of property’. In the instant case the appointment letter is considered as
property which is handed over to the petitioner by the bank.

There was dishonest intention on part of the petitioners. The term dishonestly is defined in Section 24 of
Chelsea Terrace Penal Code as “Whoever does anything with an intention of causing wrongful gain to
one person or wrongful loss to another person , is said to do that “dishonestly”.

“Fraud is committed if any advantage is expected to the person or wrongful gain.49

It is humbly contended that the petitioner had dishonest intention from the very outset. As the representation
was false to the knowledge of the accused and was made in order to deceive the complainant which clearly
amounts to fraud.50

In the case of Inder Mohan Goswami v. State of Uttaranchal,51 dishonest intention at the time of making
the promise is a sine qua non for the offence of cheating. Also, to hold a person guilty of cheating it is
necessary to show the dishonest intention at the time of making the promise.

There was wilful misrepresentation of a definite fact with intent to defraud and thus was cheating.
Suppression of material facts in the prospectus is fraudulent.52

Same is the state of circumstances in the present case where at the time of appointment, it is presumed that
when an employee joins a post in any corporation, they know the policies of that particular corporation and
moreover on being repeatedly introduced with the policies and being asked, petitioners denied the fact of
being uterine siblings. Both are working in the bank since the long time and are well aware of their ethical
bye-laws, still they did not notify the bank about being the uterine sibling of other petitioner which clearly
shows their fraudulent and swindling intention which amounts to fraud.

Therefore, it is submitted that the petitioners had dishonest intention to deceive the bank by suppression of
material facts and henceforth committed fraud.
=============================================================================

PRAYER
=============================================================================

In the light the issues raised, arguments advances and authorities cited, the counsel for the respondent
humbly prays that the Hon’ble SC be pleased to adjudge, hold and declare:

1. That, the writ filed by the petitioners is not maintainable in the court of law.

2. That, there was no infringement of the petitioners fundamental rights of right to privacy.

3. That, the termination of the petitioners is justified.

4. That, the non-disclosure of some facts by the petitioners amounted to cheating.

And pass any order that this Hon’ble court may deem fit in the interest of equity, justice and good
conscience.

And for this act of kindness, the counsel for the respondent shall duty bound forever pray.

COUNSEL FOR THE RESPONDENT