TEAM CODE: 7

5TH SURANA & SURANA & SCHOOL OF LAW, RAFFLES UNIVERSITY NATIONAL
LABOUR LAW MOOT COURT CUM JUDGEMENT WRITING COMPETITION 2022

Before

THE HON’BLE SUPREME COURT OF INDIA

SPECIAL LEAVE PETITION 12 / 2022

FILED UNDER SECTION 136 OF

[CONSTUTION OF INDIA]

IN THE CASE CONCERNING [DISMISSAL ON GROUNDS OF PREGNANCY]

AND

IN THE MATTER BETWEEN:

MS. KANGANA [PETITIONER]

versus

ANTARIKSH LOGISTICS [RESPONDENT]

(ASGARD) LTD.

MEMORIAL for RESPONDENT

 SURANA &SURANA

TABLE OF CONTENTS

1.) INDEX OF AUTHORITIES

2.) INDEX OF ABBREVIATIONS
3.) STATEMENT OF JURISDICTION
4.) STATEMENT OF FACTS
5.) ISSUES RAISED
6.) SUMMARY OF ARGUMENTS
7.) ARGUMENTS ADVANCED
8.) PRAYER

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INDEX OF AUTHORITIES

1. Pritam Singh v. the State

2. Tirupati Balaji developers Pvt. Ltd v. State of Bihar

3. Smt, Tej Kumari v. CIT (2001).

4. Combes vs Combes

5. Delhi Court & General Mills Ltd v Union of India on October 8th, 1987

6. Kunwar Arun Kumar vs Uttar Pradesh Hills Electronics Corporations Ltd.

7. Om Prakash Mann vs Director of Education

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STATEMENT OF JURISDICTION

Article 136 in The Constitution Of India 1949

Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the territory of
India

(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces

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STATEMENT OF FACTS

 Antariksh Logistics Pvt. Ltd. had employed Ms. Rakhi in the import operations
department in 2020.In the June 2020 Ms. Rakhi found that she was pregnant.
Consequently the company intended to replace her with Ms. Kangana during the
period of her maternity leave.
 During Kangana’s interview it was mentioned that the purpose of her employment
was to replace Ms. Rakhi. Ms. Kangana started working in the company from July 1,
2020 and two weeks later she suspected that she might be pregnant.
 The employer decided to terminate her. Ms. Kangana claimed COVID19 also caused
families to suffer in extreme levels and therefore her dismissal is a categorical
discrimination in workplace on the basis of gender.
 Ms. Kangana has primarily approached the Labour Court whereby the Court
dismissed Ms.Kangana’s action on the ground of her anticipated inability to complete
the task that was put forth before her as she replaced Ms. Rakhi.
 Ms. Kangana was not satisfied with the decision of the Labour Court to which she
appealed before the High Court and the High Court is uncertain whether it is unlawful
to dismiss her in the ground of her pregnancy.
 Ms. Kangana has approached the Supreme Court under a Special leave petition
against successive decisions/orders of the Labour Court and High Court.

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ISSUES RAISED

The Petitioner filed an Appeal at the Supreme Court on the following issues:

1.) Is it discrimination on grounds of sex contrary to Standing Orders for an employer

to dismiss a female employee (“the Petitioner”);
a.) whom he engaged for the specific purpose of replacing (after training) another female
employee during the latter’s forthcoming maternity leave,
b.) when, very shortly after the appointment, the employer discovers that the Petitioner
herself will be absent on maternity leave during the maternity leave of the other employee,
and the employer dismisses her because he needs the job holder to be at work during the
absentee period of Ms. Rakhi.
c.) had the employer known of the pregnancy of the Petitioner at the date of appointment, she
would not have been appointed, and
d.) the employer would similarly have dismissed a male employee engaged for this purpose
who required leave of absence at the relevant time for medical or other reasons?"

2.) Whether the dismissal of Ms. Kangana is a clear case of violation of human rights
which are protected under the Constitution, and other human rights treaties and
conventions signed and ratified by Asgard.

3.) Whether the doctrine of estoppel would amount to stopping Ms Kangana from
claiming before the Supreme Court?

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SUMMARY OF ARGUMENTS

ISSUE - 1

The Counsel for the respondent states that the act of the employer is not discrimination on
grounds of sex contrary to Standing Orders for an employer since the type of work was
clearly mentioned in the interview to recruit Ms. Kangana wherein which she was clearly
informed that she is replacing Ms. Rakhi for a temporary period of time. The reason why Ms.
Rakhi is being replaced is that her absence could cost heftily to the company which it cannot
afford. There exists no form of discrimination as the company would do the same to any
other employee replacing a person temporarily leaving on maternity leave. Therefore the
claim that the company has acted in a discriminatory way is baseless and argumentative.

ISSUE - 2
The Counsel for the respondent states that the Articles such as 14, 15 which provide for
freedom from discrimination based on gender race caste and other forms are adhered by and
respected with utmost care and caution by the company and there exists no form of
discrimination against Ms.Kangana. The Conventions clearly portray the essence of maternity
benefits and liabilities of an employer while handling the case of a pregnant woman but the
company does not have any other option as the motive behind Ms Kangana’s appointment is
defeated.

ISSUE - 3
The Counsel for the respondent states that the doctrine of promissory estoppel stops an
employee from claiming adversely at a later stage of the employment claims that he/she
previously agreed while adhering to the terms and conditions of the employment contract and
therefore the dismissal of Ms. Kangana is well and truly valid.

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ARGUMENTS ADVANCED

Jurisdiction:
Special leave petition holds an important place in the Indian Judiciary as it provides for the
appeal before the Supreme Court from any tribunal, or Judicial institute for that matter.
Article 136 of the Constitution specifies the circumstances in which a Special leave petition
can be filed before the Supreme Court. The Preliminary essentials that have to be construed
are as follows.
 There must be a judgment or a decree or an order passed by any High Court/ Tribunal
or any other Court in the territory of India.
 If the High Court refuses to grant the certificate of fitness for appeal to the Supreme
Court of India.
When these two conditions are satisfied, the Supreme Court will take into account the subject
matter of the case. The Supreme Court would further evaluate the facts and circumstances of
the matter at hand and would decide upon the question as to whether or not the case can be
taken or special leave can be granted. But two major necessities have to be fulfilled for the
same to happen. There must be
 A substantial question of law that has to be the subject matter of the suit and
 Gross injustice has to be done to the aggrieved.
The Apex Court or the Supreme Court as mentioned in Article 136 of the Constitution holds a
discretionary power and it is only under the discretion of the Apex Court will the Special
leave be granted.

In the case of Pritam Singh v. the State, the Constitutional Bench appointed to deal with
matter in the Supreme Court stated that the power given to the Supreme Court to decide on
the matter with regards to Special leave is a wide discretionary power and can only be
exercised sparingly and in cases where substantial question of law is to be considered or a
gross injustice has been done.

In the case of Tirupati Balaji developers Pvt. Ltd v. State of Bihar, the Court observed that
the power vested on the Supreme Court by the Constitution is an extraordinary jurisdiction
and is vested with implicit trust and faith. Extraordinary caution has to be observed in the
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exercise of this jurisdiction. The Court further observed that Article 136 does not confer a
right of appeal on a party but vests a vast discretion on the Supreme Court.

With regards to the matter at hand, Ms Kangana has approached the labour tribunal in the
first place and later has filed an appeal before the High Court over the same. The subordinate
Courts have ruled clearly over the matter in favor of the respondent stating that the the
employers had
showed that the reasonable needs of their business required that the person recruited to cover
for Ms. Rakhi during her maternity leave had to be available throughout the time.
Consequently, it is put forth before the Court that the matter has already been decided on
clean grounds and if it is brought before the Supreme Court it would be a frivolous matter.
Therefore when the Supreme Court dismisses an SLP with reason, it might be taken as the
affirmation on merits of the views of the High Court. This has also been held in Smt, Tej
Kumari v. CIT (2001).

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ISSUE 1.
Is it discrimination on grounds of sex contrary to Standing Orders for an employer to
dismiss a female employee (“the Petitioner”)
a.) whom he engaged for the specific purpose of replacing (after training) another
female employee during the latter' s forthcoming maternity leave,
b.) when, very shortly after the appointment, the employer discovers that the Petitioner
herself will be absent on maternity leave during the maternity leave of the other
employee, and the employer dismisses her because he needs the job holder to be at work
during the absentee period of Ms. Rakhi.
c.) had the employer known of the pregnancy of the Petitioner at the date of
appointment, she would not have been appointed, and
d.) the employer would similarly have dismissed a male employee engaged for this
purpose who required leave of absence at the relevant time for medical or other
reasons?"

The counsel for the respondents would like to put forth before the Court that, we accept that
pregnancy is a matter of exceptional importance in the life of a woman and the respondents
have utmost respect and knowledge with regards to the rights available to a pregnant woman
employed in a company and duties that have to be followed by the employer with respect of
protection and safety of the pregnant woman.

The Counsel further states that the type of job that Ms Kangana has been employed in is as a
replacement for Ms Rakhi due to her pregnancy. As it is mentioned in the terms and
conditions of the agreement the job requires a particular type of work where a pregnant
woman cannot be employed. Therefore the company has no other option other than to
terminate her in respect of the company. The argument that, the employee would not have
known that she would become pregnant at the time of the interview or a the time when she is
being inducted into the company would be unreasonably naive because, the company clearly
does not have any discriminatory intentions.

Employment contracts can be of multiple types which may include statements with regards to
the benefit of the company but may not include unfair and unjust terms. Even Though the
contract does not substantially state that the person who is being recruited should not be

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pregnant, it is to be understood by Ms Kangana that the reason Ms Rakhi is being replaced is

due to her pregnancy and the company cannot afford the replacement employee to be
pregnant too which would otherwise make the replacement a simple waste of time. To
determine whether the agreement between the employer and the employee is unreasonable or
not, there can be three tests.
a.) Whether the agreement amounts to total restraint? It is clear from the facts and
circumstances of the case that the employment contract does not impose any type of total
restrictions on the side of the employee limiting him/her to work to her complete potential in
the company.
b.) Whether the restraint protects a legitimate interest of the employer or the covenantee? It is
also clear from further analysis that Ms Kangana has been employed in such a position where
it would prove costly for the company or the company cannot afford the absence of the
employee if she goes on maternity leave and therefore has no other option other than to
terminate her from her position.
c.) Whether the restraint is reasonable and not arbitrary? It is obviously established from the
fact the employee was well and truly informed about the nature of work that she is going to
undergo in the coming days that the restraint is reasonable and not arbitrary. The employer
clearly does not have any arbitrary or discriminatory intentions with regards to the gender of
the employee.

Obviously there cannot arise a comparison between a man and woman employed in the
position and the sufferings undergone by the woman during pregnancy. But the statement
made by the employer that any man who would require absence for that long of a period
would obviously be dismissed, clearly necessitates again the importance of the job position
whereby the absence of the employee cannot be tolerated. The next test is regarding the
question as to whether proper termination procedures were followed in the case and the facts
clearly states that Ms Kangana has been given a termination letter with proper reasoning.
There cannot in any case arise an argument that Ms Kangana was dismissed without proper
notice of termination and the reasons for termination were not properly stated.

Gender based discrimination in workplace is a social evil that has to be uprooted from
companies but that cannot mean that an employee can be allowed to work even after he/she
absents themselves for unreasonable amounts of time. When the contract of employment

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which in this case is oral (binding) clearly states that the reason of employment of Ms
Kangana is as a replacement of Ms Rakhi and the reason for Rakhi’s replacement in the first
place is due to her incapacity to work during maternity which to be taken into account and
does not portray any form of direct or indirect discrimination.

To provide an illustration, let us take an example of an entrepreneur, since his business or

enterprise is new to the market, is employing interns to complete his office work with a
minimum pay. When an intern becomes pregnant, he has no other option other than to replace
her for time-being because he cannot sustain the company without finding a proper
replacement for her during the maternity leave. The case of Ms Rakhi is exactly similar.
Now, when the replacement that the entrepreneur hires also becomes pregnant, the reason
why the prior intern was replaced in the first place also gets compromised. This shall be the
case even if the employee is male or of any other gender/identity and this cannot be a basis
for the argument of gender discrimination.

In Kunwar Arun Kumar vs Uttar Pradesh Hills Electronics Corporations Ltd., the Court
opined that during the period of probation, the authorities are entitled to assess the suitability
of the candidates and if it is found that the candidate is not suitable to remain in service, they
are entitled to record a finding of unsatisfactory performance and terminate the employee
without conducting an enquiry.

In Om Prakash Mann vs Director of Education, it was held by the Court that no opportunity
of hearing is required to be given to the probationer for dismissal during the probationary
period and there is no violation of natural justice principles. In the present case, it is evident
from the facts that the employee is in her probationary period as Ms Rakhi is supposed to
train the employee for six months and those six months would amount to the probationary
period of the employee which would mean that no sort of hearing can be given to the
employee and she can be dismissed by recording reasons of dismissal.

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ISSUE 2.)
Whether the dismissal of Ms. Kangana is a clear case of violation of human rights which
are protected under the Constitution, and other human rights treaties and conventions
signed and ratified by Asgard.
Giving light to the preliminary aspects, the Counsel for the Respondents would like to state
that there has not been any sort of violation under the Articles provided in the Constitution.
Article 14 provides that there shall be discrimination on the grounds of religion, race, caste,
creed, sex or place of birth. The Counsel argues that there has not been any sort of violation
of the fundamental rights as provided by Article 14 because, the nature of her job was
previously communicated to her and there arises a incapacity for the company to suit a person
who would probably take a reasonable amount of time for maternity leave. The company has
no misleading intentions over dismissing Kangana as it would have done the same with any
person irrespective of their gender. This becomes clearly evident as the facts provide so.

Article 15 of the Indian Constitution prohibits discrimination in every form and essence. The
counsel for the respondents state that the act of the employer does in no way go against the
principles present in Article 15 of the Constitution. Similarly the dismissal is in no way in
violation of Article 19(1)(g), which provides for the freedom to practice any profession or to
carry out any occupation, trade or business.

The Termination of Employment Convention, 1982 sets forth the principle that the
employment of a worker should not be terminated unless there is a valid reason for such
termination which is connected with the employee’s capacity or conduct or based on the
operational requirements of the undertaking, establishment or company. The Convention
clearly portrays the grounds on which an employee can be terminated from his position in the
company which includes the reason that the employee cannot meet the operational
requirements of the enterprise.

In the case at hand, Ms Kangana, when she absents herself from the company cannot meet the
operational requirements of the company which may be the case for any employee
irrespective of their gender. Thus it clearly proves that incapacity to work in the organization
is a valid ground for termination. The Counsel for the side of the respondents would like to
argue that the reason for termination in the present case is not pregnancy but the employee’s

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incapacity to work which is evident because it may be the same case if the employee that is
being dismissed or terminated is a male. Furthermore the company can opt for paying the
Petitioner a severance fee during her dismissal to amount for her loss of pay, considering the
fact that she is the sole breadwinner in her family and for her sustenance.

Furthermore the counsel for the respondent states that, Ms. Kangana is only being
temporarily replaced during the time period in which Ms. Rakhi has claimed maternity leave.
With the arrival of Ms. Rakhi after her maternity leave the company cannot continue to
validate Ms. Kangana’s employment. When the ulterior purpose for which Ms. Kangana is
recruited is being defeated when she herself becomes pregnant there arises no reason that
could stop the company from dismissing her.

The Committee on the elimination and discrimination against women provides for protection
to woman from direct and indirect discrimination. Article 11 of CEDAW specifically
provides for Non-discrimination in employment, health and safety at work and also prohibits
dismissal during pregnancy or maternity leave but the circumstances of the case tend to point
otherwise. There exists utterly no form or mode of discrimination in the present case as the
employer is exercising his right to dismiss an employee for incapacity to do the exact work
that she is hired for. Therefore the dismissal is in every possibility valid.

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ISSUE 3: Whether the doctrine of estoppel would amount to stopping Ms Kangana

from claiming before the Supreme Court?

The doctrine of estoppel in a normal contract stops a person from claiming against a
substance of dispute to which he/she agreed during the preliminary stages of the contract. The
Doctrine of Promissory Estoppel works on the principles of natural justice which includes
equity, fairness and moral conscience.

The doctrine gives light to the meaning that when an individual with an intention of forming
a relationship which is lawful makes a clear promise to another individual and the latter
individual acts on it, the promise that has been given becomes an obligation for the individual
who made the promise which he has to adhere to. Hence, then going back from its words at a
later stage is not permissible.

In the case of Umesh Verma vs The Chairman/Managing Director, on 24 October, 2008, it

was identified that there needs to be conducted three tests to determine whether the doctrine
of promissory estoppel can be applied in a case or not. Elements of a 'promissory estoppel'
are a promise clear and unambiguous in its terms, reliance by the party to whom the promise
is made, with that reliance being both reasonable and foreseeable, and injury to the party
asserting the estoppel as a result of his reliance

In the present case, the employers had also shown that the reasonable needs of their business
required that the person recruited to cover for Ms. Rakhi during her maternity leave shall be
available throughout the time. Therefore Ms Kangana had impliedly agreed to the conditions
mentioned therein. There cannot at a later stage arise a claim that she would not have had any
knowledge about her pregnancy.

The work could only be completed by a person who is available throughout the time and
proper reasons for that have been given as evidence in the subordinate courts, Labour tribunal
and the High Court. Therefore Ms Kangana would not be entitled to avail the argument that
she cannot be dismissed. In the case of Combes vs Combes it was held that where one party
by his/her words /actions or conduct has made an offer to another party to which any promise
and assurance was intended to affect or the other party has concluded to relations between

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them and to be acted upon accordingly, then it is presumed that party has taken him on his
word and then acted upon it. In the present case, Ms Kangana has worked in the company for
two weeks in spite of the warnings given by the employer during the interview. Therefore it
can be presumed that Ms Kangana has acted upon the promise and cannot at a later part claim
contradictorily.

The promise is said to be resiled from only when the promisor with the support of a guarantee
by giving reasonable notice, which may not be formal, give the promisee a reasonable chance
of continuing his position. The promise would move toward becoming last and irreversible if
the promisee cannot continue his position. In Delhi Court & General Mills Ltd v Union of
India on October 8th, 1987, the Court opined that the party asserting estoppel must have been
induced to act to his detriment. The present case clearly has made the employer act in to his
detriment and dismiss the employee who has claimed that she is pregnant. In normal
circumstances, the employee is aware that he cannot dismiss the employee on the reason of
her pregnancy but her incapacity to work and the continuation of her probationary period tells
a different story.

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PRAYER FOR RELIEF

Wherefore it is prayed, in light of the issues raised, arguments advanced, and authorities
cited, that this Hon'ble Court may be pleased to:

1. Hold that the Act of dismissal of the company is not discrimination on grounds of sex
contrary to Standing Orders.

2. Hold that the dismissal of Ms. Kangana is not a clear case of violation of human
rights which are protected under the Constitution, and other human rights treaties and
conventions signed and ratified by Asgard.

3. Hold that the doctrine of estoppel would amount to stopping Ms Kangana from
claiming before the Supreme Court.

4. Dismiss the Special Leave Petition.

And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of
Justice, Fairness, Equity and Good Conscience.

For This Act of Kindness, the Respondent Shall Duty Bound Forever Pray.

(Counsel for the Respondent)

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