Legislative and Regulatory Update
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In This Issue [No.170]
September 20, 2006
Supreme Court High Courts PIB RBI TRAI International Cases & News
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A. Geetha Vs. State of Tamil Nadu and Anr
In the present case, the appellant, wife of the detenu calls in question the legality of the judgment rendered by a Division Bench of the Madras High Court dismissing the Habeas Corpus Writ Petition filed by her challenging the order of detention of the detenu. The aforesaid detenu was detained under Section 3(2) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates Act, 1982. The allegation against the detenu was that the detenu was involved in prostitution business and was alleged to have committed offences like keeping a brothel, living on the earnings of prostitution, doing prostitution in the vicinity of public place and abducting women for prostitution which were punishable under the Act and IPC. The investigation revealed that the detenu used to get young innocent poor girls, who because of poverty were in search of employment from State of Andhra Pradesh and under the guise of getting them employment, induced and forced them to indulge in prostitution business. Held, the grounds of detention clearly shows that the acts committed by the detenu were of such intensity that the moral fibre of the community was disturbed. Therefore, the detenu has rightly been detained. Appeal is dismissed.
Beena Philipose and Anr Vs. State of Kerala
The appellants were tried for commission of offence punishable under Section 420, 471, 120B read with Sections 466 and 468 of Indian Penal Code. The allegations which led to the trial of the appellants were that the appellant No. 1 secured admission to M.B.B.S Course in Thiruvanthapuram Medical College on the basis of forged mark-sheets. It was the case of the prosecution that as a result of conspiracy between first accused, i.e. appellant No. 1, second accused, i.e. father of the girl, appellant No. 2, accused No. 3 an official of the University accused No. 4 a Contractor and accused No. 5, the mark sheet was forged. The forgery was done with the purpose of utilizing the forged mark-sheet to secure admission to the M.B.B.S course. On the basis of compliant lodged, investigation was undertaken and charge sheet was filed. The Sessions Judge, found the accused guilty and sentenced them. On appeal to the High Court, the conviction was maintained but the sentences were reduced. Hence, the present appeal. On behalf of the appellants it was contended that the Supreme Court should take a lenient view considering the fact that the alleged offence was committed a quarter of century back. Held, there is no reason to interfere with the analysis of factual position made by the trial Court as maintained by the High Court to conclude the guilt of the appellants. Appeal is therefore disposed of.
O.N.G.C. Ltd Vs. Commnr. of Customs, Mumbai
The appellant, a pubic sector undertaking, applied for renewal of oil exploration licence which was granted. It then filed an application for grant of essentiality certificate for exemption of payment of customs duty for 3-D Seismic Tapes, used in its oil exploration purposes, in terms of a government notification. The Appellant was asked to resubmit the application for grant of essentiality certificate in a new format which was adhered to by the appellant, thereafter which the essentiality certificate was granted by the Director of Hydrocarbons. The said 3-D Seismic Tapes were treated to be the 'goods' within the meaning of the provisions of the Customs Act, 1962. The goods were cleared provisionally but since the Appellant failed to produce the essentiality certificate earlier, a notice to show cause was issued as to why the said data tapes should not be classified and charged to duty. The matter came before the Customs, Excise and Service Tax Appellate Tribunal which ruled in favour of the respondent. The matter came up before the Supreme Court which remitted the matter to the Commissioner for fresh consideration who ultimately ruled against the appellant and hence the present appeal. Held, unless a final order of assessment is passed, production of a delayed essentiality certificate may not come in the way of importers for obtaining the benefit of exemption notifications. The conduct of appellant must, therefore, be judged from the factual matrix. Appeal is allowed.
Bombay
The Archidiocese of Goa, Daman and Dui, through its Constituted Attorney Father Victor Rodriques, Procuractor Vs. Union of India (UOI), Collector of Daman and Mamlatdar of Daman
The dispute in the present petition pertained to certain lands including agricultural and non-agricultural lands belonging to the petitioners that were taken over by the Administration of Daman and Diu in view of Daman (Abolition of Proprietorship of Villages) Regulation 1962. The petitioner contended that the said agricultural land was taken over without giving any compensation and that the non-agricultural property was also taken over, even though it could not be taken over under the said Regulation of 1962. A writ petition was filed and was allowed wherein direction was given to the petitioners to make an application to the Mamlatdar stating therein list of properties which would not fall within the ambit of the Regulation and the Mamlatdar was required to pass appropriate orders with regard to the same. The Mamlatdar, came to the conclusion that the said properties were non-agricultural lands and were not covered within the ambit of the Regulation and therefore the petitioners were entitled to retain the said properties. In suo-moto revision under Section 12-D of the Regulation, the Collector, set aside the order passed by the Mamlatdar and remanded the matter to the Mamlatdar with a direction that an enquiry should be conducted. The petitioner by an application contended that only those affected persons, who were not earlier heard in the matter, were to be given opportunity of hearing again and that the respondents including the Collector who were already heard in the matter could not get an opportunity to file fresh written reply, written statement or to lead any evidence or to cross-examine any of the witnesses, etc. The said application was dismissed by the Mamlatdar and hence the present writ petition. Held, when a fresh enquiry is to be held by giving opportunity to persons who are likely to be affected, naturally respondents should also get an opportunity to file reply, written statement, to lead evidence and to cross-examine the witnesses of the petitioners and if this right is refused to the respondents on the ground that they were previously heard, the enquiry may not be complete. Writ petition is dismissed
Brihanmumbai Municipal Corporation Vs. Mr. S.R. Mishra
The respondent bus driver was employed with the Transport Undertaking of the appellant corporation. While on duty, the bus driven by him hit a cyclist and his wife. The cyclist died on the spot and his wife suffered injuries. It was alleged that the respondent, despite the accident, did not stop the bus or report the accident to the police or to the Undertaking. Information about the accident was lodged by the wife of the cyclist and the respondent came to be chargesheeted for misconduct under Standing Orders 20(j) and 20(k) of the Certified Standing Orders and under Standing Order 20(k) for his failure to report the accident to the management. A departmental enquiry was conducted and the respondent was dismissed from service. The respondent filed an application before the Labour Court under Sections 78 and 79 of the Bombay Industrial Relations Act, 1946. The Labour Court came to the conclusion that the punishment of dismissal was disproportionate to the misconduct proved and directed reinstatement of the respondent without back wages but with continuity of service. The order of the Labour Court was confirmed in appeal by the Industrial Court. Hence the present appeal. Held, the Labour Court lost sight of the fact that there is a society outside which is directly affected when drivers of a public transport Undertaking indulge in serious acts of misconduct causing death or bodily injury to the members of the public. The Industrial Court which heard the appeal against the order of the Labour Court also manifestly erred in declining to exercise its jurisdiction to correct a clear and patent error. Petition is allowed.
Karnataka
Shri Pundalika Savanna Kaladagi S/o Savanna Kaladagi Vs. The State of Karnataka, Department of Health and Family Welfare (Medical Education), represented by Secretary, Vikasa Soudha, Shri M.G. Hiremath S/o G. Hiremath, Karnataka Institute of Medical Sciences represented by Chief Administrative Officer and Member Secretary
The petitioner was appointed as a Lecturer at the Karnataka Institute of Medical Sciences of the respondent and worked as a Principal and In-charge Director of the Institute. Later, the petitioner was named as the Director of the Institute on deputation for a period of two years by a notification. It is the case of the petitioner that his tenure as Director of the institute was abruptly curtailed. He was then reverted to the post of Professor with immediate effect vide a notification. Simultaneously, under the same notification, respondent No. 2 has been appointed in place of the petitioner. This action of the first respondent is challenged by the petitioner in the present petition. The petitioner submitted that the post of Director is a tenure post and that the tenure is for five years and that the appointing authority is the State Government. The respondents raised objections with regard to the maintainability of the writ petition. They stated that the petitioner, a government servant, was on deputation for two years and vide a notification his deputation was abruptly withdrawn and he was repatriated to the Parent department. If this act was contended as being violative of petitioner's service conditions, the petitioner's remedy lies before the Karnataka Administrative Tribunal in terms of Section 15 of the Administrative Tribunals Act, 1985 and not by writ before the High Court . Held, the petitioner would have to approach the Tribunal under the Administrative Tribunals Act, 1985 in respect of his grievance. The writ petition is without jurisdiction and is accordingly dismissed.
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