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Legislative and Regulatory Update
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[No.123]
May 30,
2005 |
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To keep you informed about the latest Legislative
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Supreme
Court |
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MANU/SC/0401/2005
The Appellants were
convicted and sentenced by the Trial court to undergo rigorous imprisonment for
ten years and a fine of Rs.100 each imposed for the attack on the prosecution party,
which according to the doctor was considered to be cumulatively dangerous to
life.
The Appellants
challenged the said order. The High Court upheld the conviction but reduced the
sentence of the second appellant from ten years to seven years and directed the
appellant No.1 to pay Rs.1lac and appellant No.2 to pay Rs.50000 as
compensation.
Aggrieved by the
High Court judgment, the appellants were constrained to move the Apex Court,
which upheld the High Court judgment with regard to appellant No.1 but reduced
the sentence to eight years on payment of the compensation amount. However with
regard to the appellant No.2, the impugned judgment was set aside.
MANU/SC/0402/2005
The Appellants,
along with two others were convicted and sentenced to life imprisonment by the
Trial Court under section 302 and section 324 read with section 34 IPC.
Aggrieved by the
said order, the accused filed an appeal before the High Court which upheld the
conviction of the other accused under section 324 read with section 34 IPC.
However the conviction of the Appellants was upheld. Aggrieved by the said order,
the appellants were constrained to move the Apex Court.
The Apex court
allowed the appeal and held that the Appellants can only be held guilty for
their individual over acts and therefore appellant No.2 was convicted and
sentenced to undergo imprisonment for seven years with a fine of Rs.500, and
conviction of Appellant No.1 under section 323 and section 324 IPC was upheld,
and since had undergone imprisonment for one year was released.
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High Courts |
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Kerala
The father of the
petitioner possessed licence under the Arms Act for nearly thirty years before
he died. When the petitioner applied for the licence the District Collector
called report from the revenue and police authorities. The Tahsildar recommended
grant of licence but the SP did not on the grounds that there were already many
licensed arms in the area and thus the District Collector too refused the
licence. The rejection was confirmed in appeal. This was challenged as being
arbitrary and showing non-application of mind.
The court ruled that
merely saying all relevant aspects have been considered before making a decision
is not enough. The authority has to act bona fide and cannot abuse discretionary power. Therefore each application of licence has to be considered
on individual merits. Simply because the Superintendent of Police did not
recommend grant cannot be a ground to reject the application
The respondent, a
member registered under Kerala Fisherman Welfare Board Fund was afflicted with
Rheumatoid Arthritis and had lost vision in the right eye with only partial
vision in the left. He was denied financial assistance by the board on the
ground that Arthritis was not covered under the scheme. The Human Rights
Commission directed the board to consider the application and the Kerala Legal
Services Authority took up the matter too without any avail.
Responding to a Writ
Petition before a single judge bench the Board also averred that its financial
position was feeble. However, the single bench directed the board to consider the
case with required indulgence. Against this direction the present appeal was
preferred.
While dismissing the
appeal, the court ruled that though Rheumatoid Arthritis was not a disease
recognised under the scheme, paralysis that meant loss of power of motion was.
Considering this and the fact that Filariais was a disease enumerated under the
scheme coupled with the fact that the scheme is a laudable welfare measure the
court ruled that there is no room for interpreting a welfare statute literally.
In the result, the court directed the board to reconsider its decision within two
months.
Calcutta
Upholding the view
of the Trial court, the Calcutta High Court held that the plaintiff had
performed his part of the contract and the defendant had willfully backed out by
raising sham disputes and deliberately did not accept the finished materials as
the Orissa State Electricity Board had already cancelled the agreement for
laches of the defendant.
The respondent had
filed a money suit against the appellant for recovery of a certain sum
of money along with interest on account of cost of manufacture of certain
electrical equipments, which the plaintiff had manufactured under an order from
the defendant. The court said that the appellant was aware of the fact that the
Orissa State Electricity Board had not extended the time of delivery for their
fault and cancelled the order and accordingly did not respond to the letters of
inspection issued by the respondent. The court also said that merely because at
one stage plaintiff demanded certain amount of advance, for this reason the
defendant could not cancel the contract awarded in favour of the plaintiff.
The court debated
the jurisdiction of the Writ Court to entertain a dispute between a person to
enforce the right conferred upon him under the statute itself against another
defaulting member of a committee. This question came up for decision before the
court in this writ petition, as to who amongst the Secretary and the Joint
Secretary of the Managing Committee of a school would be the custodian of the
school records, viz., Resolution Book, Notice Book, Pension Book and Service
Book of teaching and non-teaching staff, deeds relating to land owned by the
school. According to Rule 27 of the Management Rules, the Secretary shall be the
custodian of all such documents. It was held that the joint secretary could not
withhold the delivery of such documents, as it would obstruct the smooth
functioning of the Management of the school. It was further ruled that the
jurisdiction of the Writ Court to entertain such a dispute could not be excluded
under such circumstances.
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| PIB
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Dated 18.05.2005:
India has received a record FDI inflow of 17,266.52 crore rupees (US$ 3.75
billion) in the year 2004(January to December). In its Annual Report for the year
2004-05 the Department of Industrial Policy and Promotion (DIPP), Ministry of
Commerce & Industry, attributes this upturn in FDI to the liberal,
transparent and investor friendly FDI policy of the government whereby FDI up to
100 % is allowed under the automatic route in most sectors. The Annual Report
also notes that the efforts of the NMCC to unlock India’s manufacturing
potential and the Destination India events organized by the Ministry in
association with CII and FICCI have contributed enormously for investment
promotion.
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RBI |
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RPCD
Circular No.
RPCD.PLNFS.BC.No.101/06.02.31/2004-05 Dated 20.05.2005: Vide this circular, the
Reserve Bank of India has circulated a scheme for "Small Enterprises
Financial Centres (SEFCs)", which it has worked out in consultation with
the Ministry of SSI and Banking Division, Ministry of Finance, Government of
India, SIDBI, IBA and select banks. The scheme aims at expanding outreach of
banks and improving credit flow to the Small Scale Industries (SSIs) sector.
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| Ministry
of Defence
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Press Release Dated
18.05.2005: The Ministry of Defence has acknowledged the receipt of report as
submitted by the expert Committee on Flight Safety, which had been constituted
in Dec 04 to identify causes of aircrafts in IAF and to suggest remedial
measures to reduce the accidents to a minimum.
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| Ministry
of Civil Aviation |
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Notification No.
GSR330(E) Dated 19.05.2005: The Central Government, vide this notification, has
made the Aircraft (First Amendment) Rules, 2005, further to amend the Aircraft
Rules, 1937. With effect of this notification, a new Rule 29C as regard to
adoption of the Convention and Annexes, has been added. It requires the
Director-General to lay down standards and procedures not inconsistent with the
Aircraft Act, 1934 (22 of 1934) and the rules made thereunder to carry out the
Convention and any Annex thereto.
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| SEBI |
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Secondary Market
Division
Notification No.
SO684(E) Dated 20.05.2005: The Securities and Exchange Board of India (SEBI),
has vide this notification, notified a scheme for corporatisation and
demutualisation of the Bombay Stock Exchange (BSE), under the Securities
Contracts (Regulation) Act, 1956. The SEBI prior to declaring such scheme, has
made thorough observations as regard to voting rights of a shareholder,
recognition of trading members of the demutualised stock exchange, composition
of Board, utilization of assets and reserves, and measures to establish
uniformity of standards such that all trading members may have similar rights
and privileges.
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| Ministry
of Labour And Employment |
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Notification No.
GSR322(E) Dated 17.05.2005: The Central Government, after consultation with the
Employees' State Insurance Corporation, made the Employees' State Insurance
(Central) (1st Amendment) Rules, 2005, further to amend the Employees' State
Insurance (Central) Rules, 1950. Now, for the promotion of measures for the
improvement of the health and welfare of insured persons and for the
rehabilitation and re-employment of insured persons who have been disabled or
injured, the Corporation may incur an expenditure upto a limit of Rs. three
hundred crores per year from the Employees' State Insurance Fund. These Rules
shall come into effect from 1st May, 2005.
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| International Legal
Cases and News |
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Cases
Labour &
Employment Law
In a claim for
hostile work environment, the U.S. 8th Circuit Court of Appeals made a judgment
in favor of the defendant-employer where the plaintiff unreasonably failed to take
advantage of the preventative and corrective opportunities provided by the
defendant-employer to avoid any harm to the plaintiff’s career.
The U.S. 1st Circuit
Court of Appeals ruled that a mandatory arbitration agreement, contained in a
dispute resolution policy linked to an emailed company-wide announcement, is
unenforceable where the plaintiff-employee is not provided adequate notice of
the contractual nature of the emailed policy by the defendant employer.
The Delaware Supreme
Court ruled in a suit concerning workers' compensation benefits that the trial
judge erred in concluding that plaintiff's erroneous characterization of some
payments made to an employee resulted in a waiver of his workers' compensation
lien.
Environment Law
U.S. 9th Circuit
Court of Appeals ruled that 18 U.S.C. section 1864(a), which prohibits the use
of dangerous equipments on federal land to obstruct the harvesting of timber is
not unconstitutional as applied to visible and unmodified ropes strung above a
proposed helicopter landing site.
In a suit to recover
cost related to the cleaning up of hazardous substances, the U.S. 2nd Circuit
Court of Appeals ruled in favor of defendant whereby the plaintiff is not
eligible to seek contribution under the Comprehensive Environmental Response,
Compensation, and Liability Act.
News
The proposed
European constitution drafted by a European Constitutional Commission headed by
former French President Valery Giscard d'Estaing and strongly endorsed by
current President Jacques Chirac and most of the French political and media
establishment was defeated in France, which is a major blow to the ratification
process. It also throws grave doubt on the current constitutional document,
which must be ratified by all 25 EU member states before it can take effect.
The Illinois Senate
has passed a bill, which bans the sale of violent or sexually explicit video
games to minors. The proposed Safe Games Act would punish sales clerks who
knowingly sell adult video games to minors though a seller could defend himself
by showing that he did not know that the buyer was a minor or that it followed
the industry ratings on the games. The stores will determine which games are too
violent or sexually explicit for minors.
To give jurors in
capital murder cases the option of sentencing a defendant to life in prison
without parole instead of death, Texas Senate has approved the Senate Bill 60. At
present Texas leads US states in the number of annual executions and Texas
juries can only sentence people convicted of capital murder to either death or
life in prison with the possibility of parole after 40 years. The opponents to
the proposed bill say life without parole would make prisons more difficult to
manage because inmates with no hope of parole would have no incentive to behave.
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