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[No.163] |
July 10, 2006 |
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Supreme
Court |
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The present appeal
is directed against an order passed by the Division Bench of the Bombay High
Court whereby the court dismissed the writ petition filed by the appellants in
the case. The High Court held that in view of certain proposition of law
laid-down by the Apex Court none of the argument raised by the party is
sustainable.
Imperial Bank,
predecessor of Respondent No.3 (State Bank of India), had leased out a building
to Appellant No. 1, a firm of advocates and solicitors. Later, Respondent No.3
terminated the tenancy of the appellant and issued a show cause notice under
Section 4 of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 upon
which the writ petition was filed by the appellant. The contentions of the
appellants were that the provisions of the Maharashtra Rent Control Act, 1999
shall prevail over the provisions of the 1941 Act in view of Article 254(2) of
the Constitution and that it is a protected tenant under the provisions of the
Maharashtra Rent Act. It was also submitted that the provisions of Section 3 of
the Public Premises Act are violative of Article 14 of the Constitution of India
as it makes the Estate Officer of the statutory authority as a Judge in his own
cause since he is an officer of the respondent bank. The appellants also
contended that as per Allocation of Business Rules 1961, the power to appoint an
estate officer is vested with the Ministry of Urban Development and not with the
Ministry of Finance which was not followed in the present case. The Apex Court
held that the present case is clearly governed by the primary rule in Article
254(1) under which the law of Parliament on a subject in the Concurrent List
prevails over the State law. Relying on the judgement in Delhi Financial
Corporation and Anr. v. Rajiv Anand and Ors, the court held that the doctrine
'no man can be a judge in his own cause' can be applied only to cases where the
person concerned has a personal interest or has himself already done some act or
taken a decision in the matter concerned. In this case, the estate officer
appointed does not have any personal interest in the matter. Referring to the
question of appointment of estate officer by Ministry of Finance, the Supreme
Court held that vide office Memorandum No. 21012(8)72-Po.I dated 29.11.1972 all
Ministries/Departments have been authorized to appoint Estate Officer in respect
of Public Sector Undertakings/Government Companies, etc. under their respective
administrative control. The appeal was therefore dismissed
The appellant in the
present appeal is a public undertaking fully owned by the Central Government.
Several workers of the unit died in harness leaving behind the widows and
families. The IDPL Workers' Union took up their cause and demanded that the
widows/dependants of deceased employees should be given employment in the plant.
Till such time the decision for their employment is received from the corporate
office, the management should employ them as contract labour. The respondents
were appointed as contractors from time to time by the appellant company which
was later terminated. The industrial dispute was referred to the Labour Court
which gave the award against the appellant-company on the ground that the said
respondents were the workmen and they were entitled to be regularized. Aggrieved
by the said order, the appellant-company filed writ petitions which were
dismissed by the Uttaranchal High Court and hence the present appeal was
preferred to the Honourable Supreme Court. In support of the appeal, the
appellants submitted that the appellant is a sick company and there is no rule
or scheme for providing appointment on compassionate grounds. In the absence of
any such rule or scheme for compassionate employment, no direction could have
been given by the Labour Court and the High Court erred when it held that there
was a settlement arrived at between the parties.
The Supreme Court
after considering the contentions of both the parties held that the Labour Court
and High Court completely lost sight of the financial condition of the appellant
company in that no production has been going on in the company since 1994. Also
there was no material before the Labour Court to conclude that the contract was
not a job contract and in fact employment had been given. The Apex Court
therefore allowed the appeal setting aside the award of the Labour Court and the
judgment of the High Court.
The appellant entity
is a non profit organization run by the Andhra Pradesh Nutrition Council and
owned by the AP Govt. The appellants sanctioned ex-gratia payment to the workers
which was subsequently withdrawn on the basis of directive issued by the Andhra
Pradesh Government. The aggrieved employees of the appellant-establishment sent
representations to the Minister of Labour regarding stoppage of ex-gratia
payment which was not ruled in their favour. A writ petition was filed by the
employees which was allowed by the learned Single Judge who with reference to
certain documents came to the conclusion that the stand of the appellant that it
was working without profit motive was factually wrong and that Section 22 of the
Industrial Disputes Act would not stand in the way of entertaining the writ
petition. The appellant then filed a writ before the High Court which maintained
the order of learned Single Judge and hence the present appeal was preferred to
the Supreme Court. The Supreme Court held that as per Section 22 of the
Industrial Disputes Act when a dispute arises between an employer and employees
with respect to the bonus payable under the Act or with respect to the
application of the Act in public sector then such dispute shall be deemed to be
an industrial dispute within the meaning of ID Act. As disputed questions of
fact were involved, and alternative remedy is available under the ID Act, the
High Court should not have entertained the writ petition, and should have
directed the writ-petitioners to avail the statutory remedy. However, because of
the long passage of time and the peculiar circumstances of the case, the Apex
Court directed the state government to refer the following question for
adjudication by the appropriate Tribunal which shall dispose of the reference.
The appeal was allowed to the aforesaid extent.
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High Courts |
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Bombay
The respondent,
working as casual labourer from 22/05/1984 to 28/02/1985 in the
appellant-company, sought reinstatement with back wages, as he was terminated
without any notice or payment of wages of one month in lieu of notice. The first
labour court dismissed the industrial dispute raised by the respondent-workman.
But in writ petition, the Single Judge directed reinstatement with continuity of
service and back wages. This Order is assailed in this present letters patent
appeal.
The High Court
considering the fact that the respondent-worker has in fact abandoned his
service and made no grievance about the alleged termination for a period of
about 8-9 years held that he was not entitled for reinstatement. The Court
further observed that a daily wager does not hold a post unless he is appointed
in terms of the Act and the rules framed thereunder. He does not derive any
legal right in relation thereto. Further, the respondent-worker does not derive
any legal right to be regularised in service only because he had been working
for more than 240 days. The respondent-worker had not acquired the status of
temporary worker as he was only a casual worker and was not appointed against a
vacant post so as to claim status of even a temporary employee. So the appellant
was not under statutory obligation in this case to issue notice of termination
to respondent worker and follow the procedure as laid down under Section 25F of
the I.D. Act. The appeal was allowed.
The petitioner is a
public limited company incorporated under the Companies Act, 1956 and is
engaged, inter alia, in the business of manufacture and sale of edible oils,
including refined sunflower oil and refined groundnut oil. The respondent No. 2
issued a notification in exercise of power under Maharashtra Agricultural
Produce Marketing (Regulation) Act, 1963 under which market fees and supervision
charges was imposed on agricultural produce which included edible oils. When
Petitioner was called upon to take a licence under Section 7 of the Act they
objected stating that the Act was not applicable to the petitioner company and
that the edible oil manufactured from the oil seeds of various types cannot be
termed as an agricultural produce within the meaning of Section 2(1)(a) of the
Act and therefore, the market fees and supervision charges imposed on them was
illegal.
The Court observed
that the demand of market fees made by respondent No. 3 from the petitioner
-company is valid in law as the doctrine of quid pro quo is not applicable for
the statutory claim of market fees. The respondent No. 3 has no power to charge
supervision charges as well as interest on the amount of market fees and/or
supervision charges as the same is not per se recoverable since it is the
payment made to the State Government in lieu of the staff appointed by the State
Government. The product "refined edible oil" is an agricultural
produce as defined under Section 2(1)(a) of the Act and, therefore, the
petitioners are required to pay market fees on the marketing of the said product
within the market area of respondent No.3. The petition was dismissed with
liberty to respondent to demand market fees.
Delhi
The petitioner who
was in judicial custody for the offence under NDPS Act for more than three and a
half years was arrested for the possession of 500 grams of a substance suspected
to be heroine. He has sought bail on the ground that since the substance was not
a commercial quantity, the rigours of Section 37 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 would not apply and sought release, when particularly he had no criminal antecedents.
The High Court
observed that the actual content by weight would determine whether it is a small
quantity, intermediate quantity or commercial quantity for the purposes of the
NDPS Act and it would also be necessary to examine the purity levels to come to a
conclusion as to whether the recovery is from a person involved in the wholesale
trade or in the retail trade or from an addict and all these are to be treated
differently under the scheme of the Act. In the present case, the recovery is of
a substance, which contains only 5.1% heroin, which is a fairly low purity level
and since the petitioner could not be classified as a kingpin for whom the
stringent provisions under Section 21 (c) read with Section 37 of the NDPS Act
has been framed, the petitioner who has already served three years of
imprisonment was liable to be released on bail.
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| Ministry of Commerce and Industry |
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Industrial Policy
and Promotion
Press Note No. 6
(2006 Series) Dated 03.07.2006: The Government vide the above press note
notifies that for the benefit of investors the Government has decided to further
extend the time period for the telecom service provider companies to comply with
the conditions set out in Press Note 5 (2005 Series) by three months w.e.f. 3rd
July 2006 up to 2nd October, 2006. Earlier vide Press Note 5 (2005 Series) dated
3.11.2005, the Government had notified the enhancement of Foreign Direct
Investment (FDI) limits in the Telecom Sector subject to specified conditions
and had granted an initial correction time of four months from the date of issue
of the Press Note to the existing licensee companies for adherence of the
conditions which was then extended to another four more months e., up to 2nd
July, 2006 vide Press Note 5 (2006 Series) dated 3.3.2006.
Notification No :
SO972(E) Dated 29.06.2006: The Central Government vide the above notification
notifies that a proposal made by M/s. Reliance Industries Limited to the
Petroleum and Explosives Safety Organisation for permission to import certain
explosives by air from United States of America for oil exploration purposes has
been granted subject to adherence to specified guidelines. Necessary clearances
are to be obtained from the Director General of Civil Aviation and the Airports
Authority of India and conditions, if any, imposed by the said authorities shall
be complied with; explosives conforming only to Division 1.4 of the Division
relating to class 1-Explosives falling under 3.1 of section 3 of 37th Edition of
International Air Transport Association Dangerous Goods Regulations, which
became effective on 1st January, 1996, shall be imported; strict compliance with
the relevant provisions relating to the possession, transport, use and import of
explosives shall be followed.
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Press
Information Bureau |
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PIB dated
04.07.2006: The Central Government notifies vide the above press information
bureau press release that vide Circular No. 83/1/2006-ST dated 4th July, 2006,
issued under F. No. 354/59/2006-TRU that services such as transfer of money
through money orders, operation of savings accounts, issue of postal orders
which are in the nature of “banking and other financial services” defined
under section 65(12) read with section 65(105)(zm) of the Finance Act, 1994
provided by the Department of Posts will not be liable to service tax. As per
section 65(105)(zm) read with section 65(12) of the Finance Act, 1994, Banking
and other financial services provided by a banking company or a financial
institution or a non-banking financial company or any other service provider
similar to a bank or a financial institution are liable to service tax.
Department of Posts is not considered as a service provider similar to a bank or
a financial institution and therefore such services provided by Department of
Posts are not liable to service tax.
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SEBI |
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Press Release
Press Release No:
PR-166/2006 Dated: 26.06.2006. Vide the above press release, the SEBI Board
notifies that it has approved the guidelines for Real Estate Mutual Funds (REMFs).
Real Estate Mutual Fund Scheme means a scheme of a mutual fund which has
investment objective to invest directly or indirectly in real estate property
and shall be governed by the provisions and guidelines under SEBI (Mutual Funds)
regulations. It is notified that the structure of the REMFs, initially, shall be
close ended and that the units of REMFs shall be compulsorily listed on the
stock exchanges and NAV of the scheme shall be declared daily. The REMFs shall
appoint custodian who has been granted a certificate of registration to carry on
the business of custodian of securities by the Board and he shall safe keep the
title of real estate properties held by the REMFs. These schemes can invest 1)
directly in real estate properties within India, (2) Mortgage (housing lease)
backed securities (3) Equity shares/ bonds/ debentures of listed/ unlisted
companies which deal in properties and also undertake property development and
in (4) Other securities.
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| International Legal
Cases and News |
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Cases
Family
In the present suit
involving paternity rights, the appellant mistakenly represented himself as the
father of the child in the case. The appellant gave financial support to the
child’s mother for bringing up the child and even filed a petition for
visiting the child at regular intervals, thereby leading the child to believe
that he is indeed her father. Later when DNA tests were conducted and it
revealed that the appellant is not the biological father of the child, he chose
to take back the visitation petition severing all relationship with the child.
The Family Court ruled in favour of the respondent mother and therefore an
appeal was preferred to the New York Court of Appeals. The Court of Appeals
relying on the principle of equitable estoppel and the ruling in Nassau Trust
Co. v Montrose Concrete Products Corp., 56 NY2d 175, 184 [1982]) held that a man
who has mistakenly represented himself as a child's father may be estopped from
denying paternity, and made to pay child support, when the child justifiably
relied on the man's representation of paternity, to the child's detriment.
The petitioners in
the present case are members of same sex couples and the respondents are
license-issuing authorities which instruct local authorities regarding issuance
of marriage licenses. The petitioners have tried unsuccessfully to obtain
marriage licenses after which they instituted the suit seeking declaratory
judgement that restriction of marriage to opposite sex is invalid under the
constitution. The lower courts ruled in favour of the respondents and therefore
the present appeal was preferred. The New York Court of Appeals upon
consideration of contentions of both parties held that New York Constitution
does not compel recognition of marriages between members of the same sex.
Whether such marriages should be recognized is a question to be addressed by the
Legislature.
Constitution
The petitioner in
the present case is a Yemeni national who was captured by the US military forces
during hostilies in 2001 against the terrorist organization “Al Qaeda”. He
was deported to the Guantanamo prison and was charged with conspiracy to commit
offences which was triable by the military commission. In the habeas corpus and
mandamus petitions filed by the petitioner, he contended that the military
commission lacks authority to try him because (1) neither congressional Act nor
the common law of war supports trial by military commission for conspiracy.
According to him conspiracy is an offense which is not a violation of the law of
war; and (2) the procedures adopted to try him violate basic tenets of military
and international law, including the principle that a defendant must be
permitted to see and hear the evidence against him. The District Court granted
habeaus relief and stayed the proceedings of the military commission. It held
that the petitioner was entitled to Third Geneva Convention’s protections. The
Appeal Court ruled that the petitioner was not entitled to relief because Geneva
Conventions are not judicially enforceable. The US Supreme Court reversed the
judgement and the case was remanded.
Environment
The petitioners in
the present suit are four environmental groups challenging the respondent agency’s,
Office of Surface Mining and Reclamation, an office of the Department of the
Interior, environmental assessment and decision-making in connection with a coal
mining permit. The contention of the petitioners was that the environmental
assessment conducted by the agency was deficient in that in failed to consider
sufficient alternatives to a proposal; that the agency acted arbitrarily and
capriciously in issuing a finding of no significant impact; and that the agency
should have made the environmental assessment available for public comment 30
days before its final decision. Summary judgment was granted in favour of the
respondent agency and hence the appeal was preferred. The appellate court held
that because the administrative record shows that the respondent agency in
effect did consider other options to the coal company’s license request and
because plaintiffs on appeal have not identified any concrete alternatives that
the agency should have considered, summary judgement in favour of the respondent
agency is affirmed.
News
Antitrust regulators
from EU member states voted unanimously to approve in principle new fines
imposed on Microsoft for not following a 2004 European Union antitrust ruling.
The European Commission had warned the software giant that it may face fines of
up to 2 million euros per day for not giving competitors the necessary
information to develop software compatible with the Windows operating system.
Actual implementation of the fines would require an additional meeting of
antitrust regulators to approve the actual amounts. If implemented, it will be
the first time that the European Union has imposed fine on a company for not
complying with a previous order. Microsoft argued that its engineers have been
working "around the clock" to supply the information and that six out
of seven information installments have already been given, so any fines at this
point would be unfair. But the commission said the company had 18 months to
comply with the 2004 ruling after a court denied its appeal against instant
antitrust sanctions.
Eleven African
jurists were sworn-in as the first members of the African Court on Human and
People’s Rights. The Court is Africa's first continent-wide Human Rights Court
and is sponsored by the African Union. The legal experts vowed to
"preserve, protect and defend" the African Charter of Human and
Peoples' Rights which will allow prosecutions for human rights infractions
rather than just handing out resolutions and judgments.
The ACHPR was
officially created by a 1998 African Union protocol. The panel will carry out
its intended functions, including interpreting and ruling upon any international
laws or treaties ratified by the offending states. African Union organizations,
individuals, states, and non-governmental bodies will all be able to petition to
the court for rulings on human rights violations.
The Federation of
Arab Journalists (FAJ) has issued a statement declaring its opposition to a
draft publications law in Egypt. The group claims that the said law could be
used by politicians to stifle journalists with the threat of jail. The FAJ
asserted that the Egyptian President had promised two years ago to repeal laws
that could result in prison sentences for journalists. Although the draft law
removes some provisions that threaten journalists' freedom, it also adds new
restrictions in other provisions. The legislation is only one example of what
critics see as attacks on the press by Egypt's government.
The appeals chamber
of the European Court of Human Rights held that eight years of solitary
confinement awarded to notorious convicted assassin and terrorist known as ‘Carlos
the Jackal’ is not violative of his human rights. The Appeals Court upheld a
lower court decision in making its determination. The Court found that the
convict was given a sufficiently large cell and facilities, books and a
television, and the opportunity of two hours exercise every day in addition to
access to a training room. He had also had regular visitors. Considered
dangerous and at significant risk to attempt escape, he was held in solitary
confinement in a French Prison from 1994 to 2002. He was brought from Sudan by
French secret service agents and is currently held in general detention at the
high security Clairvaux prison.
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