021A

IN THE HONORABLE SUPREME COURT OF DIVISTAN

AT RADSRI

IN THE MATTERS OF

CIVIL APPEAL NO. 1001/2019

MESMERISE LAL SHARMA (REPRESENTED BY HERSELF)……...…………….…. APPELLANT

v.

STATE OF DILLI (REPRESENTED BY CHIEF SECRETARY)…………………. RESPONDENT

[Under Article 133 of the Constitution of Divistan read with Order XIX, Rule 1 & 3 of the

Supreme Court Rules, 2013]

Clubbed with

CIVIL APPEAL NO. 1060/2019

DIVIKA ANJANI (REPRESENTED BY HERSELF)…………………………...………

APPELLANT

v.

KALPANI LAW & CO. LTD. (REPRESENTED BY THE MANAGING DIRECTOR)…..

RESPONDENT

[Under Article 133 of the Constitution of Divistan read with Order XIX, Rule 1 & 3 of the

Supreme Court Rules, 2013]

[The above matters have been clubbed under Article 142 of the Constitution of Divistan,

1950, read with Rule 3 of Order LV of the Supreme Court Rules, 2013]

Memorial on behalf of the Appellants

 TABLE OF CONTENTS

INDEX OF AUTHORITIES.....................................................................................................iv

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

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

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

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

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

1. THE PUBLIC INTREST LITIGATION IS MAINTAINABLE....................................1

2. NOTIFICATIONS CAN BE CHALLANGED FOR THE VIOALTION OF

FUNDAMENTAL RIGHTS..................................................................................................2

3. THE NOTIFICATION VIOLATES PART III OF THE CONSTITUTION..................2

(i) Violation of Right to Equality.....................................................................................3

(ii) Violation of freedom of speech and expression.......................................................4

(iii) Non Applicability of exception under Article 19(2)................................................5

(iv) Insecurity for women and children and violation of Article 21...............................5

4. THE CLAUSES OF EMPLOYEMENT AGREEMENT ARE UNFAIR AND

UNREASONABLE................................................................................................................6

(i) Non competence clause...............................................................................................7

(ii) Non- Solicitation Clause..........................................................................................8

(iii) Confidentiality and non-disclosure clause...............................................................8

5. UNJUST RESTRAINT BEYOND EMPLOYEMENT..................................................9

6. THE EMPLOYEMENT CONTRACT IS VOID DUE TO VARIOUS REASONS......9

7. NON ACCEPTANCE OF RESIGNATION IS A VIOLATION OF SECTION 27 OF

CONTRACT ACT...............................................................................................................11

PRAYER..................................................................................................................................13

iii
 INDEX OF AUTHORITIES

Cases

; Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly, (1986) AIR 1571.......12

Atwood v Lamont (1920) All ER Rep 55..................................................................................8

Bachhan Singh v. State of Punjab, (1982) AIR SC 1336...........................................................3

Bank of India vs. K. Mohan Das, (2009) 5 SCC 313...............................................................12

Central Inland Water Transport Corporation v. Brojonath Ganguly, (1986) SCR (2) 278.....10

Desiccant Rotors International Pvt. Ltd. v. Bappaditya Sarkar, (2014) 1 Mah LJ 758.............7

E P Royappa v State of Tamil Nadu (1974) 4 SCC 3 [85]........................................................3

Faccenda Chicken Ltd. v. Fowler, (1986) 1 All ER 617...........................................................8

Herbert Morris Ltd. v.Saxelby, (1916) All ER 617...................................................................8

Horne Coupar v. Velletta & Company,2010 BCSC 483.........................................................12

Justice K.S.Puttaswamy(Retd) vs Union Of India, (2015) 10 SCC 92......................................6

Kharak Singh v. State of UP, (1964) 1 SCR 332.......................................................................6

Lalbhai Dalpatbhai & Co. v Chittarangan Chandulal Pandiya, (1966) AIR Guj 189................7

Levison v. Patent Steam Carpet Cleaning Co., (1997) 3 AllER 498,CA.................................10

M/s. J. Mohapatra & Co. v. Orissa, (1984) 4 SCC 108; Jitendra Nath v West Bengal Board of

Examination, AIR 1983 Cal 275............................................................................................1

Madhubhai Amathalal Gandhi vs The Union Of India, (1961) AIR 21....................................2

Ministry of Information & Broadcasting, Govt. of India v. Cricket Association of Bengal,

(1995) 2 SCC 161...................................................................................................................4

Niranjan Shankar Golikari v. The Century Spinning and Mfg. Co. Ltd., (1967) 2 SCR 367....7

Pollock and Mulla, Indian Contract & Specific Relief Acts, thirteenth edn.,pp. 823-826........8

PUCL v. Union of India, (2003) 4 SCC 399..............................................................................5

iv
PUCL v. Union of India, (2005) 2 SCC 436..............................................................................2

Rajnit Prasad v. Union of India, (2000) 9 SCC 313; Gurpal Singh v. State of Punjab, (2005) 5

SCC 136.................................................................................................................................1

Romesh Thapar v. State of Madras AIR (1950) SC 124...........................................................4

Romesh Thappar v. State of Madras (1950 SCR 594 at 697)....................................................2

RR Gopal alias Nakeeran Gopal v. Union of India and Others (2004) 13 SCC 540.................2

S.K. Kantha v Kamarulla Islam, (2005) SCC 507.....................................................................1

S.P. Gupta v Union of India, (1982) AIR SC 149......................................................................1

Sandhya Organic Chemicals Pvt Ltd v United Phosphorous Ltd (1997) AIR Guj 177.............9

Sanjay Jain v. National Aviation Company of India Ltd, CIVIL APPEAL NO.10881/2018

(ARISING OUT OF S.L.P.(C) NO.27941/2017)................................................................12

Satyavrata Ghosh v. Kurmee Ram Bangor, [1954] SCR 310...................................................7

Society of Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1 (32)......2

State of Punjab v. Dalbeer Singh,(2012) AIR SC 1040.............................................................2

State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75................................................................3

State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal, (2010)

AIR SCW 1829......................................................................................................................2

Stephen (1995) 15 OJLS 565.....................................................................................................6

Suprintendence Co of India Pvt Ltd v Krishan Murgai, (1980) AIR SC 1717..........................9

Taprogge Gesellschaft mbH v IAEC India Ltd, (1988) AIR Bom 157.....................................9

VFS Global Services Pvt. Ltd. v. Suprit Roy, 2008 (2) Bomcr 446..........................................8

Statutes

Section 27, Contract Act, 1872................................................................................................11

Other Authorities

v
Andrei Costin, Security of CCTV and Video Surveillance Systems: Threats, Vulnerabilities,

Attacks, and Mitigations, ACM Digital Library (Sept. 10, 2019)

https://dl.acm.org/citation.cfm?id=2995290..........................................................................5

Black’s Law Dictionary, 7th Ed. p. 38.......................................................................................9

HM Seervai, Constitutional Law of India, Fourth Edition,1991................................................5

Law Commission of India, 199th Report, 2006.......................................................................10

M.P. Jain, Indian Constitutional Law, 7th edition.....................................................................3

M.P. Jain, Indian Constitutional Law, 7th edition, p. 423.........................................................1

Sir Jack Beatson & Andrew Burrows, Anson’s Law of Contracts, 30th Edn. P.431..................7

Valerie Steeves & Owen Jones, Surveillance, Children and Childhood, Oxford Human Rights

Hub (Sept. 10, 2019), available at http://eprints.uwe.ac.uk/15963/1/Surveillance%2C

%20Children%20and%20Childhood%202010.pdf...............................................................6

vi
 STATEMENT OF FACTS

 Both the cases are of Republic of Divistan, which is a democratic and quasi-federal

nation with a written constitution.

 Under the Constitution of Divistan [“Constitution”], right to free and compulsory

education for each child of the age group 6-14 years has been recognized as a

fundamental right. Further, the Education is Important Act, 2009 obligates the center

that these rights are practiced effectively.

 Various studies conducted in government schools of the state of Dilli in 2018 showed

that there was negligence and absenteeism on part of the teachers in most of the

schools, primary schools forming the majority of the same. In certain schools, the

classes where not held altogether.

 In light of this, the state government decided to install Closed Circuit Television

Cameras [“CCTV Cameras”] in all the classrooms of the primary schools under the

state government vide Notification D-4035/2019 [“Notification”] after considering the

views of parents of children in the primary schools.

 The notification also said that the parents would be given a software, using which

they could see all the live updates of their children.

 This decision was widely criticized by the students and the teachers for being

violative of freedom of speech and expression and having behavioral effects. The

students also alleged that it was discriminatory because cameras were being installed

only in primary schools.

 A public interest litigation [“PIL”] was filed in the High Court of Dilli by Mr. M.L.

Sharma, challenging the notification on the grounds of articles 14, 15 and 19 of The

vii
 Constitution. After the validity of the notification was upheld by the High Court of

Dilli, an appeal was filed before the Supreme Court of Divistan

 In the second case, Ms. Divika Anjani, a law graduate, received an offer to join the

law firm Kulpani Law & Co. Ltd. [“The Firm”], which specialized in the field of

Intellectual Property rights. The preliminary offer letter was followed by a detailed

employement agreement which stipulated various terms and conditions, including the

ones restricting the employee from competing or soliciting after two years of leaving

the job.

 Although the agreement said that it would be appreciated if employee stays for

minimum of two years, Ms. Divika decides to resign within a year and a half and

challenges the validity of the agreement and its clauses.

 After the court decreed in favor of the Firm, Ms. Divika approaches the Supreme

Court.

viii
 STATEMENT OF JURISDICTION

The Petitioner has approached the Honourable Supreme Court of Divistan, invoking its writ

jurisdiction to admit and adjudicate the present matter under Article 133 of the Constitution

of Divistan, 1950 read with Order XIX, Rule 1 & 3 of the Supreme Court Rules, 2013 and

decide accordingly.

The Appalant has approached the Honourable Supreme Court of Divistan, invoking its writ

jurisdiction to admit and adjudicate the present matter under Article 133 of the Constitution

of Divistan, 1950 read with Order XIX, Rule 1 & 3 of the Supreme Court Rules, 2013 and

decide accordingly.

The both have been clubbed under Order LV, Rule 5 of the Supreme Court Rules, 2013.

ix
 ISSUES FOR CONSIDERATION

I. WHETHER THE INSTALLATION OF CCTV CAMERAS IN SCHOOLS

VIOLATES PART III OF THE CONSTITUTION AND IS VOID OR NOT?

II. WHETHER THE EMPLOYEMENT AGREEMENT AND THE ACTIONS OF

THE FIRM ARE VALID OR NOT?

x
 SUMMARY OF ARGUMENTS

1. THE NOTIFICATION IS LIABLE TO BE STRUCK DOWN

The petition filled the present case is in the interest of general public and is filled for

bona fide reasons. Thus, it is maintainable. The notification violates Fundamental

Rights on various counts, namely Articles 14, 15, 19 and 21 of the Constitution.

Considering that notifications are included within the ambit of Article 13 of the

Constitution, it is liable to be struck down for violating Fundamental Rights.

2. THE CLAUSES OF THE EMPLOYEMENT AGREEMENT ARE NOT VALID

Firstly, the agreement ambiguously states the condition for the period for which the

employee is mandatorily bound to stay in the firm.

Further, the non-compete, non-solicitation and confidentiality clauses are

unreasonable and unfair and bound the employee even after the termination of

employment.

This amounts to a restraint of trade, thus invoking Section 27 of the Contract Act.

xi
 ARGUMENTS ADVANCED

1. THE PUBLIC INTREST LITIGATION IS MAINTAINABLE

(i) Something in which the public, the community at large has something pecuniary

interest, or some interest by which their legal rights or liabilities are affected. The

expression ‘public interest litigation’ means a legal action initiated in a court for

enforcement of public interest.1

(ii) In the Additional Judges case2 , considered to be a precursor for public interest

litigation [“PIL”] in India, Justice Bhagwati observed that whenever there is a public

wrong or injury, any member of the society acting bona fide and having sufficient

interest can maintain an action for such wrong or public injury. With the evolution of

PIL and advancement in law, it is now not necessary that the petitioner has personal

interest in the matter.3

(iii) However, the petitioner should not come to the court for personal gain 4,

private profit or political motives and cheap popularity.5

(iv) In the present case, considering the gross violation of Fundamental Rights, it is

evident that the petitioner has filled the PIL filled by the petitioner, a public spirited

person is completely in public interest and is devoid of any personal or political

motives. Hence, the PIL is maintainable before this Hon’ble Court.

1
M.P. Jain, Indian Constitutional Law, 7th edition, p. 423.
2
S.P. Gupta v Union of India, (1982) AIR SC 149.
3
M/s. J. Mohapatra & Co. v. Orissa, (1984) 4 SCC 108; Jitendra Nath v West Bengal Board
of Examination, AIR 1983 Cal 275.
4
S.K. Kantha v Kamarulla Islam, (2005) SCC 507
5
Rajnit Prasad v. Union of India, (2000) 9 SCC 313; Gurpal Singh v. State of Punjab, (2005)
5 SCC 136
xii
2. NOTIFICATIONS CAN BE CHALLANGED FOR THE VIOALTION OF

FUNDAMENTAL RIGHTS

(i) Article 13 of the Constitution prohibits the state from making a law which either takes

away totally or abrogates in part a fundamental right. 6 . Further, Article 13(2)

prohibits the state from making any law which violates Part III of the Constitution,

else the law shall be void to that extent.7

(ii) Article 13(3)(a) states that ‘law’ includes notifications and their validity can thus be

challenged.8 [] A notification issued by the state, it being a law, is as much liable to be

struck down for violation of Fundamental Rights, as is the act under which the given

notification has been issued. If an act confers a power upon the state in general terms

and the notification issued thereunder goes against part III of the constitution, the

validity of the act cannot act as a deterrent for challenging the notification.9

3. THE NOTIFICATION VIOLATES PART III OF THE CONSTITUTION

The fundamental rights enshrined in the Constitution not only act as a constraint on

the plenary legislative powers, but also provide for fuller development of people,

including their individual dignity10. In the light of the fact that the courts are ‘protector

and guarantor’ of fundamental rights11 and the basic objective of Part III of the

Constitution is to keep citizens at the centre stage and make the state accountable 12, it

has to be considered that the notification violates the Fundamental Rights on several

counts.

6
State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal,
(2010) AIR SCW 1829
7
State of Punjab v. Dalbeer Singh,(2012) AIR SC 1040
8
Madhubhai Amathalal Gandhi vs The Union Of India, (1961) AIR 21
9
RR Gopal alias Nakeeran Gopal v. Union of India and Others (2004) 13 SCC 540
10
Society of Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1 (32)
11
Romesh Thappar v. State of Madras (1950 SCR 594 at 697)
12
PUCL v. Union of India, (2005) 2 SCC 436
xiii
 (i) Violation of Right to Equality

a) Article 14 guarantees to every person the right to equality before law or equal

protection of laws. It implicates that the actions of the state must be based on a

classification having reasonable nexus with the objective to be achieved. 13 Also, the

action must be non-arbitrary and reasonable in nature as arbitrariness is an antithetic

to equality.14 Whenever there is arbitrariness and unreasonableness, there is a denial

of rule of law.15 Every state action must be non-arbitrary and unreasonable.

Otherwise, the court would strike them down as invalid. 16

b) In the studies conducted at the government schools of Dilli, it was found that in 72%

of overall schools, teachers were found to be absent or sleeping on duty. Further, in

majority of schools, students were not attended to and there was negligence on part of

the teachers. Even though this discrepancy was found mostly in primary schools, it

was not limited to the same.

Hence, the decision of the State Government to install CCTV cameras only in the primary

schools, excluding all the secondary and pre-primary schools is arbitrary and devoid of a

reasonable nexus and thus is a prima facie violation of Articles 14 and 15 of the

Constitution.

(ii) Violation of freedom of speech and expression

a) Article 19(1)(a) of the Constitution provides for freedom of speech and expression. It

is the right to express one’s opinions freely by word of mouth, writing or any other

mode. It is one of the founding pillars of our democratic system.17

13
State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75
14
E P Royappa v State of Tamil Nadu (1974) 4 SCC 3 [85]
15
Bachhan Singh v. State of Punjab, (1982) AIR SC 1336.
16
M.P. Jain, Indian Constitutional Law, 7th edition, p.909
17
Romesh Thapar v. State of Madras AIR (1950) SC 124
xiv
 b) The Hon’ble court has in various cases held that the right to freedom of speech and

expression includes the right to educate, to inform and also the right to be educated,

and informed.18

c) Further, in the case of Justice K.S.Puttaswamy(Retd) vs Union Of India,19[] it was

explicitly stated by the court that,

“Freedom of speech and expression is always dependent on the capacity to

think, read and write in private and is often exercised in a state of exclusion to

those not intended to be spoken to or communicated with.”

Since learning is something which derives its roots from verbal interactions, the right

to speak and freely express oneself is an intrinsic part of it. Students and teachers in

the classroom would neither be able to express themselves freely, nor be able to voice

their opinions and ideologies because of the fear of being closely and continually

watched. The autonomy of the teachers would also be compromised and they might

not be able to freely be critical of the government or discriminatory social norms.

d) Furthermore, even if the cameras do not permit voice recording, Article 19 of The

Constitution is being violated because freedom of expression, which overlaps the

freedom of speech, includes the expression of an emotion, in addition to oral and

written form of expression.20 The blackboard notes or PowerPoint presentations could

be an example of the same.

18
Ministry of Information & Broadcasting, Govt. of India v. Cricket Association of Bengal,
(1995) 2 SCC 161; State of Karnataka v. Associated Management of English Medium
Primary & Secondary Schools, (2014) 9 SCC 485
19
2015 10 SCC 92
20
PUCL v. Union of India, (2003) 4 SCC 399
xv
 (iii) Non Applicability of exception under Article 19(2)

Article 19(2) provides exceptions for the freedom of speech and expression and

provides certain grounds for doing so.21 However, these restrictions must be

reasonable and fair and must pertain to cases such as threat to sovereignty or foreign

relations of the state, morality and decency among others. It is submitted that the

restriction on freedom of speech and expression of the students in the classroom,

through the CCTV cameras, for the sole purpose of reducing delinquency and

improving the conditions of the government schools, being drastic and

disproportionate, is unreasonable and thus not an exception under Article 19(2).

(iv)Insecurity for women and children and violation of Article 21

a) It is taken to be well established that in the modern era of technology, no system is

fool-proof or perfectly secure. CCTV cameras are prone to hacking 22 which means

that there is a possibility of the data being misused. The facility providing for live

feed to anyone who possess the software obliterates the security of young girls as well

as the female teachers, which in turn might give rise to incidents of stalking,

voyeurism and sexual harassment.

b) Furthermore, in this growing stages of their lives, when the young children are under

a constant surveillance by unknown persons, or even their parents, there is a huge

psychological impact on their impressionable minds, hampering their independent

thought process and making them emotionally withdrawn.23 It has also been claimed

21
HM Seervai, Constitutional Law of India, Fourth Edition,1991
22
Andrei Costin, Security of CCTV and Video Surveillance Systems: Threats, Vulnerabilities,
Attacks, and Mitigations, ACM Digital Library (Sept. 10, 2019)
https://dl.acm.org/citation.cfm?id=2995290
23
Valerie Steeves & Owen Jones, Surveillance, Children and Childhood, Oxford Human
Rights Hub (Sept. 10, 2019), available at http://eprints.uwe.ac.uk/15963/1/Surveillance%2C
%20Children%20and%20Childhood%202010.pdf
xvi
 that the behavior of a person tends to change when he knows that he is being

monitored

c) Firstly, there are girls who are approaching puberty and going through various

physical, psychological and personal changes. Now, for the approximate 7 to 8 hours

spent every day at the school, they would be constantly monitored by unknown

people. The female teachers too, are being surveillance even when their consent was

not taken. Such intrusion in the personal lives, especially those of women, subjects

them to unique harm and thus goes against their dignity which is an integral part of

Article 21 of The Constitution.24 This fact that constant gaze violates dignity has also

been reaffirmed by the Hon’ble Supreme Court.25

d) For an environment of learning, it is essential that the student is neither under the

burden of parental pressure, nor feels insecure and undignified. The hurdles and

negative psychological impact on children in general, and the girl child in particular,

act as a deterrent in their education and thus violate their Right to Education under

Article 21A of The Constitution.

4. THE CLAUSES OF EMPLOYEMENT AGREEMENT ARE UNFAIR AND

UNREASONABLE

A very weak restraint which protects an important interest is unjustifiable if a yet weaker

restraint could do the job.26 Through various case laws, the test of reasonable restraint under

Section 27 of The Contract Act states that the validity of a restraint depends on [A] the

proprietary interests , [B] reasonableness; and [C] public interest.27 A covenant cannot be

considered reasonable unless it is designed to protect the legitimate interests of the

24
Kharak Singh v. State of UP, (1964) 1 SCR 332
25
Justice K.S.Puttaswamy(Retd) vs Union Of India, (2015) 10 SCC 92
26
Stephen (1995) 15 OJLS 565
27
Esso Petroleum Co. Ltd. v. Harper’s Garage Ltd. (1967) 1 AllER 699 (HL); Niranjan
Shankar Golikari v. The Century Spinning and Mfg. Co. Ltd., (1967) 2 SCR 367
xvii
covenentee while at the same time being reasonable for both the parties28 In light of this

interpretation, the clauses of the employement agreement have to be analysed.

(i) Non competence clause

a) It was held by the Court that when an act is challenged under the ground of restraint

of trade under Section 27 of the Contract Act, the onus is on the party supporting the

contract to show that the restraint is reasonably necessary to protect of his interests

along with being reasonable and non- harsh on its employees. If the terms are

unconscionable and one sided, it would amount to a restraint of trade. 29 Also, the

restraint is absolute except for the case of sale of goodwill where the parties may

agree not to carry on a similar business.

b) Further, it has been held by the court that the livelihood of the employees is supreme

and must prevail30 and that covenant is void if it restrains the employee from work in

future.31

c) For a professional law graduate, it would not only be unreasonable, but also to an

extent non-feasible, to not work in a law firm or practice law for 2 years following the

termination of his employment contract. Hence, Clause 10.6 of the employment

agreement is uxorious and invalid.

(ii) Non- Solicitation Clause

(i) A restraint under Section 27 of The Contract Act is valid if it is necessary to have a

clause of that severity to protect the interests of the other party. In other words, it

28
Sir Jack Beatson & Andrew Burrows, Anson’s Law of Contracts, 30th Edn. P.431
29
Niranjan Shankar Golikari v. The Century Spinning and Mfg. Co. Ltd., (1967) 2 SCR 367;
Lalbhai Dalpatbhai & Co. v Chittarangan Chandulal Pandiya, (1966) AIR Guj 189
30
Desiccant Rotors International Pvt. Ltd. v. Bappaditya Sarkar, (2014) 1 Mah LJ 758
31
Satyavrata Ghosh v. Kurmee Ram Bangor, [1954] SCR 310
xviii
 should be in the proprietary interests, reasonable and in public interest. 32 Further,

merely approaching the customers does not amount to solicitation.33

(ii) Considering the fact that the non-solicitation covenant of the employment agreement

provides that the employee shall not solicit, take away, or even attempt to call on any

customer of the firm, which he became acquainted to during the term of employment,

it is prima facie, unfair and unreasonable and hence invalid.

(iii) Confidentiality and non-disclosure clause

a) An employer is entitled to protect confidential information which amounts to trade

secret34 or which prevents ‘some personal influence over the customers being

abused’.35 Further, for a restraint to be justifiable, the servant must be one who has

acquired not merely knowledge of the customers, but in addition influence over

them.36 Another condition is that the confidentiality restraint would not be valid if it is

nothing more than a method adopted by the business or something available in the

public domain.37

b) As the time of restriction is increased and the space of its operation grows, the onus

on the party imposing them to justify it grows too.38

The confidentiality and non-disclosure clause of the employment agreement [A] provides for

wide and sweeping constrains on the other party without even specifying the time until which

it would be applicable, [B] Uses the phrase “any confidential information or intellectual

property” where it is unclear if the employee is at a position to successfully exploit the

32
Pollock and Mulla, Indian Contract & Specific Relief Acts, thirteenth edn.,pp. 823-826
33
VFS Global Services Pvt. Ltd. v. Suprit Roy, 2008 (2) Bomcr 446
34
Faccenda Chicken Ltd. v. Fowler, (1986) 1 All ER 617
35
Pollock and Mulla, Indian Contract & Specific Relief Acts, thirteenth edn.,p 838.
36
Herbert Morris Ltd. v.Saxelby, (1916) All ER 617
37
Supra footnote 32
38
Supra footnote 32; Atwood v Lamont (1920) All ER Rep 55
xix
information or the intellectual property is unique to the firm. Hence the clause is uncertain

and thus non valid.

5. UNJUST RESTRAINT BEYOND EMPLOYEMENT

Through various cases, it has been well established that in Indian Law, a service covenant

running beyond the terms of the service is void.39 In a fact scenario which resonates with

the present case, there was a clause in the employment contract which said that the

employee could not join any other competitor’s firm for a period of 2 years after he left

the company.40 This covenant was held to be void by the Hon’ble Supreme Court. Similar

position was maintained by the courts in other cases too.41

Since the clauses bind the employee even after the termination of contract for two years,

it can be concluded that they are not valid.

6. THE EMPLOYEMENT CONTRACT IS VOID DUE TO VARIOUS REASONS

It is submitted that the employment agreement, is invalid on two counts, namely, [A]

unfair terms in a standard form of contract and [B] violation of Section 27 of the Contract

Act

(i) It is a standard form of contract with unfair terms

Adhesion Contracts or Standard form of Contracts are defined as42:

“A standard-form contract prepared by a standard-form contract prepared by

one party, to be signed by the party in a weaker position, usually a consumer,

who has little choice about the terms. Also termed Contract of adhesion;

39
Suprintendence Co of India Pvt Ltd v Krishan Murgai, (1980) AIR SC 1717; Supra
footnote 32
40
Id.
41
Sandhya Organic Chemicals Pvt Ltd v United Phosphorous Ltd (1997) AIR Guj 177;
Taprogge Gesellschaft mbH v IAEC India Ltd, (1988) AIR Bom 157
42
Black’s Law Dictionary, 7th Ed. p. 38
xx
 adhesory contract; adhesionary contract; take it or leave it contract; leonire

contract. Some sets of trade and professional forms are extremely one-sided,

grossly favouring one interest group against others, and are commonly

referred to as contracts of adhesion. From weakness in bargaining position,

ignorance or indifference, unfavoured parties are willing to enter transactions

controlled by these lopsided legal documents”

It is evident that in these form of contracts, [A] the parties are not at an equal footing

with respect to bargaining power and there is no scope of negotiating over the terms.

[B] One of the parties may be completely unfamiliar with the complex language,

terms and conditions employed by the other.

These are pre-printed contracts with unilateral terms offered on a take it or leave it

basis, where the big corporations could abuse their power under the garb of free will. 43

Employment contracts are also included within this category of contracts.44

In these cases, if the party has signed the contract, it becomes important determine

whether the clauses could be given contractual effect. In various cases, contracts have

been struck down as void for imposing restrictive and unreasonable conditions. 45

Since fairness and reasonableness are highly relevant for the enforceability of these

contracts, and the same are clearly absent in the present case, the contract is void.

(ii) Restraint of Trade

Section 27 of the Contract Act states that every agreement by which any one is

restrained from exercising a lawful profession, trade or business of any kind, is to that

43
Law Commission of India, 199th Report, 2006
44
Id.
45
Central Inland Water Transport Corporation v. Brojonath Ganguly, (1986) SCR (2) 278;
Levison v. Patent Steam Carpet Cleaning Co., (1997) 3 AllER 498,CA
xxi
 extent void.46 It is clear that the covenants restraining the appellant from [A]

practising her profession, either individually or as a part of a firm, and [B] prohibiting

her from competing with the firm is a clear violation of Section 27 of the Contract

Act.

7. NON ACCEPTANCE OF RESIGNATION IS A VIOLATION OF SECTION 27 OF

CONTRACT ACT

(i) The clause 10.4 of the employment agreement is ambiguous as it fails to signify

whether there is a compulsion on the employee to not to leave or simply a negative

obligation, this is because of the fact that it has been constructed in a non-restrictive

manner with the use of the ambiguous term “appreciate”.

(ii) According to Black’s Law dictionary, Contra Proferentem is:

“Used in connection with the construction of written documents to the effect

that an ambiguous provision is construed most strongly against the person who

selected the language.”

(iii) It is a principle which is generally used for the interpretation of ambiguous

clauses when they have more than one meaning and the implication is not the same

for both the parties.47 This is based on the assumption that the party putting forward

the wording must have looked after its interests while doing so. The party has no right

to induce the other to make a contract on the supposition that the words mean one

thing, and then to argue for a construction to their advantage.48

(iv) The judges have adopted a similar line of reasoning in case of contracts and the

principle has been applied in various cases. 49 Applying it in present case would meant
46
Section 27, Contract Act, 1872
47
See Sir Jack Beatson & Andrew Burrows, Anson’s Law of Contracts, 30th Edn. P. 195
48
Id.
49
Bank of India vs. K. Mohan Das, (2009) 5 SCC 313; Central Inland Water Transport
Corpn. Ltd. v. Brojo Nath Ganguly, (1986) AIR 1571; Horne Coupar v. Velletta &
Company,2010 BCSC 483
xxii
 that even though there is an obligation, there is no restriction and hence the employee

could leave at will which is a matter of his right.50

In the case of Sanjay Jain v. Aviation Company of India Ltd, it was held by the

Hon’ble Supreme Court that an employee cannot be forced to serve in case he is not

willing to do so unless there is a stipulation to the contrary.

Thus, it can be concluded that in the present case, with the absence of any restriction,

the appellant is free to leave and the decision of the firm to not accept the resignation

and release the original documents is clearly a violation of Section 27 of the Contract

Act.

50
Sanjay Jain v. National Aviation Company of India Ltd, CIVIL APPEAL NO.10881/2018
(ARISING OUT OF S.L.P.(C) NO.27941/2017)
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 PRAYER

Therefore, in the light of facts stated, issues raised, arguments advanced and authorities cited,

it is most humbly prayed before this Honourable Supreme Court of Divistan that it may be

pleased to:

1. Issue a writ in nature of Mandamus and to quash and set aside the decision of the state

government of Dilli to install CCTV cameras in classroom vide notification D-

4035/2019.

2. Declare the impugned clauses of the employment agreement of Kulpani Law Co. as

void and direct the firm to pay damages to the employee for acting in restraint of

trade.

And pass any other order in favour of the Appellant which this Court may deem fit in the

ends of justice, equity and good conscience.

All of which is most humbly and respectfully submitted

Date: September 14, 2019 Counsel for the Appellant

S/d__________

Counsel No. -021

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