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Legislative and Regulatory Update
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[No.161]
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June
20, 2006 |
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publishes this e-roundup highlighting the recent changes
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Supreme
Court |
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On the basis of a
complaint received from the appellant, the Assistant Labour Commissioner issued
a notice to the respondent stating that it had not paid outstanding wages to the
employees/workmen of the establishment amounting to more than Rs. 60,000 and to
show cause why recovery under the Payment of Wages Act shall not be made. The
Respondent employer submitted a reply stating that some of the employees were
absconding and that some of the employees had been paid their wages and the
amount due was less than Rs. 50,000/. Therefore, it was submitted that the provisions
of the Act cannot be applied. The Assistant Labour Commissioner after
considering the plea of the employer rejected the same by holding that merely
because a part of the amount claimed had been paid subsequently does not mean
that it can affect the jurisdiction of concerned authority to issue a
certificate for recovery. The Respondent employer then filed a Writ Petition
before the Allahabad High Court questioning the correctness of the order. The
High Court relying on the decision in Modi Industries Ltd. v. State of U.P. and
Ors held that at the time of adjudication, the amount in default did not exceed
Rs. 50,000/- and therefore the proceedings were not maintainable. Hence the
present appeal was preferred by the Appellant to the Supreme Court. The
Honourable Supreme Court after considering the contentions of both the parties
held that it is clear from the provisions of the Payment of Wages Act that the
Act is intended to ensure timely payment of wages. Secondly, the Act deals with
defaults in payment of the wage-bill of all the workmen in the establishment. It
is not meant to provide a remedy for the default in payment of wages of
individual workmen. Therefore, the Court allowed the appeal restoring the order
passed by the Assistant Labour Commissioner and quashed the impugned order
passed by the High Court.
The present appeal
was filed against the judgement of the Madras High Court which quashed the
Habeas Corpus Petition filed by the Appellant against the order of detention
passed in respect of her son. The contention of the Appellant was that there was
delay in disposal of the representation and further that the detenu had not
filed any application for bail. Therefore, the detaining authority had committed
error in holding that there was imminent possibility of his coming out on bail.
Further the detaining authority had relied upon the confessional statement of a
co-accused without supplying copy thereof. The High Court did not find any
substance in the aforesaid submissions and dismissed the petition and hence the
present appeal was preferred before the Supreme Court. The Supreme Court after
considering the facts and circumstances came to the conclusion that the factual
scenario of the case indicated that the representation was dealt with utmost
expedition and if there is no negligence or callous inaction or avoidable red-tapism
on the facts of a case, the Court would not interfere. There is also no
substance in the plea that the confessional statement of the co-accused was
relied upon, but the copy thereof was not supplied. Therefore, the appeal was
dismissed.
The Respondent in
the present appeal was selected for recruitment to the cadre of Postal Assistant
and was appointed as Postal Assistant on daily wages basis. He later got
enrolled in Army Postal Services. It was the case of the Respondent that a
scheme called Time Bound Promotion Scheme was formulated by the authorities vide
a Memorandum dated December 17, 1983 which inter alia provided placing of
officers in the 'next higher grade' who had completed sixteen years of service.
The Respondent applied for the same but his application was rejected. His appeal
against the said order also came to be dismissed by the Superintendent of Post
Offices. Being aggrieved by the said orders, the Respondent approached the
Central Administrative Tribunal, Madras by filing Original Application which
allowed his application holding that his services ought to have been considered
for the benefit of Time Bound Promotion Scheme since he had completed sixteen
years. A Writ Petition was then filed by the appellant, which was dismissed by
the High Court of Madras and hence the present appeal. The contention of the
appellant was that the Tribunal as well as the High Court committed an error of
law in not considering in its proper perspective, the Time Bound Promotion
Scheme and by granting benefit of the said scheme to the respondent. The
Honourable Supreme Court after considering the contention of the parties held
that the Government, while imposing an eligibility condition of 16 years'
service for being entitled to time-bound promotion, is not intending to benefit
only one section of employees in the category and deny it to another section of
employees in the same category. Since the Respondent had completed sixteen years
of service, he would be entitled to the benefit of Time Bound Promotion Scheme
and the action of the authorities in not granting the said benefit was illegal
and contrary to law. For the foregoing reasons, the appeal was dismissed.
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High Courts |
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Delhi
The petitioner has
sought interim relief against the orders of respondent by which the petitioner
institution was placed in the category of “No Admission'` for the academic
year 2006-07. The petitioners also sought for issuance of direction to
respondents to permit petitioners to take admissions in the academic year
2006-2007 and to direct the respondent to remove remarks of “No Admission”
for the academic year 2006-07 from its website shown against the name of the
petitioner.
The High Court on
appreciation of facts and circumstances of cases held that the plaintiff has
made prima facie case. It was observed that it was not the case for grant of
approval and as the petitioner was granted approval from time to time and was
only asked to rectify three deficiencies, it would cause irreparable injury if
petitioner were not granted interim relief. In order to determine irreparable
loss what needed to be considered was whether the deficiencies sought to be
rectified are relax able or not. One of the main deficiencies pointed out by
respondents was inadequacy of faculty. It was a relaxable norm by giving a
warning notice as to have proper cadre strength in proportion to faculty
available. Hence, balance of convenience was held to be in favour of petitioner
and was held that he would suffer irreparable injury in case if directions
prayed for were not granted.
Allahabad
The landlady
initiated release proceedings against petitioner on the ground of bonafide
requirement of suit premises under Section 21 of U.P. Rent Control Act, 1972.
The landlady contented that since she had glass business she was in need for a
show room in main market. Her claim being rejected by the prescribed authority,
an appeal was preferred in rent Control Court. The Rent control court setting
aside the judgment and order of the prescribed authority , ordered release of
suit premises in favour of landlady. Hence, the present appeal was preferred.
The High Court
observed that the need of a manufacturer for a show room in the main market
could never be said to be not bonafide. The appellate Authority has rightly
ordered for release of shop in favour of landlady. But the court modified the
order of the Appellate Authority and held that as the frontage of the shop is
about 27 feet, shop in dispute can reasonably be divided in two portions. Hence,
the release application of the landlady was allowed in respect of half portion
of the shop in dispute. The rent was also raised to Rs 2000/- per month.
Patna
The present criminal
case was directed against the order passed by the Additional Sessions Judge,
whereby the bail bonds of the accused persons who were charged under Sections
147, 148, 149, 302, 307 and 120B of the Indian Penal Code, were cancelled and
were directed for issuance of bailable and non-bailable warrants of arrest
against them. Earlier in this case they were granted bail even before the case
was committed to the Court of Session. While committing the case to the Court of
Session, the Magistrate did not indicate any date of appearance of the
petitioners. The issue determinable was that whether there is any legal
impediment in the way of the Committing Courts in fixing the date of appearance
of the accused before the Session Court, while committing the case.
The High Court
relying on the Section 209 of Cr. P.C. held that the order for commitment of the
case to Court of Session, can be passed only when the accused appears or is
brought before the learned Magistrate. The concept that the inferior court could
not fix the date of appearance of an accused before the superior court was not
acceptable. Hence, it was stated that at the time of commitment of the case to
the Court of Session, accused persons are obliged to appear before the learned
Magistrate and only in their presence, the case could be committed to the Court
of Session.
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| Ministry of Finance |
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Economic Affairs
Amalgamation of
Ranchi, Singhbhum, Hazaribagh, Giridih Kshetriya Gramin Bank into Jharkhand
Gramin Bank
Notification No
SO878(E) Dated 12.06.2006: The Department of Economic Affairs vide the above
notification notifies that in view of public interest and development of the
area, the regional rural banks in Jharkand (Kshetriya Gramin Bank, Singhbhum
Kshetriya Gramin Bank, Hazaribagh Kshetriya. Gramin Bank and Giridih Kshetriya
Gramin Bank) are amalgamated into a single regional Rural Bank called Jharkhand
Gramin Bank with its headquarters in Ranchi. From the effective date of
amalgamation, the undertakings of the transferor Regional Rural Banks shall be
transferred to and shall vest in the amalgamated transferee Regional Rural Bank.
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RBI |
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RPCD
Circular No.
RPCD.CO.RRB.No.BL.BC.90/03.05.90-A/2005-06 Dated 13.06.2006: As per Master
Circular RPCD,CO.RRB.No.BL.BC.19/03.05.90-A/ 2005-06 dated July 15, 2005, RBI
had directed that regional rural banks (RRBs) are required to submit their
applications for opening, shifting or merger of branches to the Reserve Bank
through the National Bank for Agriculture and Rural Development (NABARD) after
following the prescribed procedure. As per the present circular, the RBI
notifies that with a view to liberalise and simplify the procedure, the
Empowered Committees (EC) for RRBs, constituted by the Reserve Bank at its
Regional Offices would deliberate and make recommendation on such applications.
The Reserve Bank would dispose of applications taking into account the EC's
recommendation. Accordingly, RRBs should henceforth submit such applications to
the respective Regional Offices of NABARD, with advance copies to the concerned
Regional Office of the Reserve Bank. No separate approval of the sponsor bank is
required to be taken. Further, approval of the sub-group of DCC will also not be
required for opening of branches. However, in case of shifting / merger of
branches, approval of the sub-group of DCC will be required. Also, requests from
RRBs for conduct of foreign exchange business, as limited authorised dealers for
current account transactions, would be considered by the Reserve Bank only after
clearance by the Empowered Committee.
DBOD
Circular No.
DBOD.PSBD. BC.88 /16.13.100/2005-06 Dated 14.06.2006: Vide the present circular,
the Reserve Bank of India notifies that postings/appointments to the posts of
Head of Treasury /International Division /Chief Dealer/Dealer can be done
without any prior reference to the RBI provided that the Board of Banks are
fully satisfied with the credentials of the appointee and banks had exercised
due care and diligence in the matter of such appointment. As per prior circular
DO.No.EC.AD&EM.883/02.03.71/95-96 dated May 27, 1996, the Exchange Control
Department of RBI had advised banks to obtain prior concurrence of Reserve Bank
on the matter of appointment to the above mentioned posts.
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Telecom
Regulatory Authority of India (TRAI)
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Press Release No.
56/2006 Dated 14.06.2006: The Telecom Regulatory Authority of India vide the
above press release notifies the release of a consultation paper on amendments
to the tariff order for CAS areas. On a petition filed by a group of Multi
System Operators, the High Court of Delhi had directed that CAS be implemented
in the three Metros of Mumbai, Kolkata and Delhi, subsequent to which it was
suggested for fixation of ceilings for individual channels. Accordingly, the
consultation paper deals with issues like fixation of maximum retail price for
each individual channel and the methodology and principles to be adopted for the
same.
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| International Legal
Cases and News |
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Cases
Criminal Law
The California
Appellate District Court in the present appeal upheld the denial of petition by
the trial court for a writ of mandate by the plaintiff. The writ sought to
prevent the Department of Motor Vehicles from enforcing an order of suspension
against the plaintiff. The same was affirmed over claim that the suspension of
plaintiff's driver's license under Vehicle Code1 section 13352(a)(3) violates
the separation of powers doctrine as it requires a two-year suspension of
driving privileges for anyone suffering two alcohol-related driving offense
convictions within 10 years.
A sentence for
aggravated sexual assault by the trial court was affirmed by the Texas Criminal
Court of Appeals in the present criminal appeal suit. The same was affirmed over
the defendant's contention that the trial court violated his due process rights
under the Fourteenth Amendment and committed fundamental error by failing to
function as an impartial tribunal for sentencing purposes.
Civil Procedure
In the present suit
filed by the Association of Residential Treatment Programs for Troubled and At
Risk Teenagers, the ruling of the trial court denying the plaintiff’s motion
for new trial was affirmed by the Appellate Court. The suit was brought by the
Association seeking damages, injunction for defamation per se and related
claims. The ruling of the trial court was affirmed by the appellate court on the
ground that the plaintiff’s claims of error were insufficient to justify a new
trial. Also summary judgment to defendant on civil conspiracy claim is affirmed
as plaintiff failed to produce sufficient evidence of a conspiracy.
The US Court of
Appeals for the Federal Circuit in the present suit reversed a decision of the
Court of International Trade denying a request of stainless steel importers for
a preliminary injunction to prevent U.S. Customs from liquidating certain
entries. The ground on which the ruling of the trial court was reversed was that
the trial court erred in its analysis of the issue of irreparable harm.
News
The European Union’s
move to bring a legislation to end charges for incoming international calls on
mobile phones on terms of unjustified high costs charged by mobile phone
companies was termed as regulatory straitjacket” by the mobile phone
companies. They claimed that the move could force them to offer services at a
loss. The draft law by EU intends to stop firms from making exorbitant charges
on customers for incoming calls when abroad and also intends to set an EU-wide
price cap for making calls outside their home country.
France's Court of
Cassation, the highest court in the country upheld the conviction of American
financier George Soros on insider trading charges. The Appeal Court had already
convicted the financier on the said charges. The conviction was based on the
fact that the Americal Financier in 1988 purchased French bank “Societe
Generale’s” stock with the knowledge that the bank might be the object of a
takeover bid and this according to the court broke the insider trading laws. The
contention of Soros’s lawyers was that the France Regulatory Commission
determined that the transaction did not violate French stock trading law or
ethical rules.
Apple Computer Inc.,
the iPod maker filed a second countersuit against Singapore-based Creative
Technology Ltd seeking damages and a court order to halt patent infringement,.
Earlier Creative Technology that deals in small media players had sued Apple for
patent infringement and filed a complaint with a U.S. trade agency seeking to
halt iPod sales. Apple's latest lawsuit allege that Creative was infringing on
three of its patents involving the display of computer data, the editing of
mobile data on a PC and the use of computer icons.
In a suit filed by
four Arkansans citizens against the policy of the State of Arkansas banning gay
marriages, they contended that the policy is unconstitutional. The bone of
contention was that homosexuals who otherwise qualify as foster parents had been
discriminated against by the policy. They argued that the ban violates right to
privacy and equal protection enshrined within the state and U.S. constitutions.
The State of Arkansas has banned gay marriages and its Child Welfare Agency bars
unmarried couples living together from becoming foster parents. The contention
of the state was that the policy is intended to protect the interests of
children.
The Serbian Supreme
Court upheld 40-year prison sentences for four former members of a special
police unit for the assassination of ex-Serbian President Ivan Stambolic in
August 2000. The accused apparently took orders from then-Yugoslavian President
Slobodan Milosevic for the assassination. Belgrade's special court convicted
eight men of the assassination last year sentencing them each to 4 to 40 years
in prison.
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