Legislative and Regulatory Update

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In This Issue

[No.172]

 October 10, 2006
Supreme Court
High Courts
PIB
RBI
TRAI
International Cases & News

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Supreme Court

  • Ghanshyam Vs. State of M.P. and Ors.

The appellant was residing in the house belonging to the grandfather of respondent No.3 as a tenant. According to the appellant, respondent No. 3 attempted to illegally evict the appellant from his rented house with the help of anti-social elements and in the process, the appellant was seriously injured. The appellant lodged an FIR under Section 147/307 IPC against respondent No. 3 and his men and then the trial commenced. After some time, the Public Prosecutor filed an application under Section 321 of the Code of Criminal Procedure for withdrawal of the prosecution. The learned Additional Sessions Judge granted permission to withdraw the prosecution on the application filed by the Public Prosecutor. It was argued by the appellant that respondent No. 3, being a former Member of Parliament, managed to get an order from the government directing the Public Prosecutor to withdraw the criminal prosecution. After some lapse of time, a writ petition was filed by respondent No. 3 before the High Court in which respondent No. 3 complained about the inaction on the part of the police authorities in not registering his complaint and taking action against the persons who had caused injuries to him and his sons. It was alleged in the said writ petition by respondent No. 3 that respondent No. 3 and his sons were attacked by the appellant. By an order, the Learned Single Judge of the High Court directed the Superintendent of Police, Gwalior to take action for registering the case and conduct an enquiry/investigation in accordance with law. The appellant had filed an application for recalling of the order passed by the learned Single Judge in the writ petition whereby respondent No. 2, the Superintendent of Police, Gwalior, M.P. was directed to register a case and conduct investigation. After hearing the appellant, the learned Single Judge arrived at definite finding that there was no ground to recall the order and dismissed the petition. Hence, present appeal. Held, no infirmity in the order of the High Court and in the backdrop of the peculiar facts and circumstances of the case, no interference is called for. Criminal appeals are accordingly dismissed.

  • The Management of National Seeds Corporation Ltd Vs. K.V. Rama Reddy

Respondent was working with the appellant Corporation. It was noticed that the respondent along with another employee were responsible for huge loss because of misappropriation by them. Departmental proceedings were initiated against the respondent. An Inquiry Officer and Presiding Officer were appointed to inquire into the charges framed as the respondent denied the charges. Respondent sought permission of the disciplinary authority to take assistance of a retired Assistant Manager of the Corporation. The prayer to take his assistance was rejected by the Corporation, in view of Rule 31(7) of National Seeds Corporation (Conduct, Discipline and Appeal) Rules, 1992. Respondent challenged the said order by filing writ petition before the Karnataka High Court. Challenge was made to legality of Rule 31(7) of the Rules on the ground that the provision denied opportunity to a delinquent employee to avail services of the person of his choice. The High Court did not accept the contention and dismissed the writ petition. After the dismissal of the writ petition, respondent made a representation for permission to take assistance of a legal practitioner. The said request was turned down by appellant-corporation. Against the said order respondent filed another writ petition again challenging that part of rule which permitted engagement of a legal practitioner only when the presiding officer appointed by the disciplinary authority is a legal practitioner. The High Court allowed the writ petition by observing that even though presiding officer was not a legal practitioner, yet the disciplinary authority could permit engagement of a legal practitioner by the respondent. Hence, present appeal. Held, respondent was in no way prejudiced by the refusal to permit engagement of a legal practitioner. The High Court's order is, therefore, unsustainable and is set aside. Appeal is allowed.

  • Ritesh Chakarvarti Vs. State of Madhya Pradesh

The appellant was apprehended by Central Bureau of Narcotics and upon search he was found to carry opium. The appellant raised doubts regarding the conduct of the enquiry and the trial and contended that evidence in the case was not corroborated properly. It was alleged that appellant was gravely prejudiced by non-examination of some material witnesses and that procedural safeguards were not adhered to by the respondents. Upon trial, the Special Judge convicted and sentenced him under Section 8 of the Narcotics Drugs and sychotropic Substances Act, 1985. Upon appeal against the same, the High Court of Madhya Pradesh at Indore, affirmed the sentence and order of conviction passed by the Special Judge. Hence, the present appeal. Held, the well established rule of criminal justice is that "fouler the crime higher the proof. In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautious and meticulous approach was necessary to be made. Appellant is entitled to benefit of doubt. Appeal is allowed.

High Courts

Bombay

  • A. Satheesan, Assistant Director (QA), Directorate of Quality Assurance, Director General of Supplies and Disposals, at present Department of Commerce, Department of Supply, Ministry of Commerce, Navi Mumbai and Ors. Vs. The Union of India, through The Secretary, Ministry of Commerce, Secretary to the Government of India Department of Supply, Government of India, Director General of Supplies and Disposals, Department of Supply, Government of India, and Director, Directorate of Quality Assurance, D.G.S.& D. Department of Supply, Government of India

The petitioners joined the services of the respondent Department, as Examiners of Stores with pay scale at par with that of Draughtsman in the deparment. Later, the pay scale of the draughtsman was revised but that of Examiners of Stores were not revised. The Central Administrative Tribunal, Calcutta Bench allowed a Civil Application filed by employees who were working as Examiners of Stores at respondent’s Calcutta Branch, praying for parity of pay scale with that of Senior Draughtsman. The Calcutta Bench of the Tribunal directed the respondents to grant pay scales to the post of Examiner of Stores at par with that of Senior Draughtsman. A review petition filed by the respondents against the same was rejected. The petitioners, similarly placed persons, who were working with the respondent’s Bombay office were not granted similar benefits. Therefore, they filed an original application at Mumbai Bench of Central Administrative Tribunal. The tribunal dismissed the said application on the ground of limitation. Hence, present petition. Held, Central Administrative Tribunal, Mumbai, erred in holding that application is barred by limitation and failed to consider that cause of action which had accrued in favour of petitioners was a continuing cause of action. It is the bounden duty of the respondents to give same pay scale to all its employees who are similarly situated. Writ petition is allowed.

  • Shri Datta Shikshan Prasarak Mandal and Anr. Vs. Dinkar Krishna Gawde

Respondent was working as a supervisor in a school run by petitioner society. The respondent was alleged of grave misconduct. It was alleged that respondent was serving as secretary of another society which started a rival school. The said rival school was initially run from respondent’s joint family house. As a result of this additional responsibility, the respondent’s attention was diverted from his work at petitioner’s school to rival school and it showed in the poor results of his students at petitioner’s school. An enquiry was conducted into the matter by an enquiry committee consisting of representative of respondent and representatives of petitioner’s school. The majority view of the enquiry committee, as per the enquiry report, was that charges against the respondent were proved. Respondent was therefore dismissed from service. Respondent challenged said order of dismissal before School Tribunal. Respondent contended that dismissal was illegal, biased and against principles of natural justice. The School Tribunal ruled in favour of the respondent and held that there is no legal evidence to hold that the charges against the respondent-appellant were proved. Hence, present petition. Held, majority view of enquiry committee suffers from no errors and report is based on an objective analysis of admitted facts and circumstances. Findings of tribunal are perverse and reasoning is manifestly erroneous warranting interference under Article of Constitution. Petition is allowed.

Chennai

  • D. Vilvanathan Vs. G. Rajendran and The Senior Divisional Manager, Life Insurance Corporation Limited, Vellore, North Arcot District

The petitioner is the maternal grandfather of the two minor children in the case. The petitioner’s daughter was married to the first respondent and the two minors were born to them. The petitioner’s daughter died of burn injuries and the petitioner alleged that the first respondent ill-treated his daughter and was responsible for her death. The two minor children were under the care and custody of the petitioner even when his daughter was alive as both parents of the minor children were employed. The first respondent-father of the minor children refuted the allegations raised by the petitioner and sought custody of the two children. The learned Principal District Judge dismissed the petition filed by the petitioner for continued care and custody of the minor children. The learned District Judge considering the age of the petitioner and the income and status of the first respondent came to the conclusion that in the interest of the minors, the first respondent-father has to be appointed as the guardian. Hence, the present appeal. Held, if children are taken away from custody of petitioner-grandfather, it would definitely affect their personal and educational career and therefore hold that custody of children should continue to be with petitioner/appellant - maternal grandfather. Appeal is allowed.

Press Information Bureau

  • Enhancement of Foreign Direct Investment Ceiling from 49% to 74% in Telecom Sector – Amendment to Press Note 5 (2005 Series)

Department / Board: PIB Dated 04.10.2006: The Government, vide Press Note 5 (2005 Series) dated 3.11.2005, had notified the enhancement of Foreign Direct Investment (FDI) limits in the Telecom Sector subject to specified conditions. In terms of para 4 of the said Press Note, an initial correction time of 4 months from the date of issue of the Press Note was allowed to the existing licensee companies for adherence of the conditions. The correction time was extended from time to time and the last extension was allowed up to 2nd October 2006 vide Press Note 6 (2006 Series) dated 3.7.2006. Vide the present press release, it is notified for the benefit of investors that 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 3.10.2006 up to 2nd January 2007. Hence, Press Note 5 (2005 Series) dated 3.11.2005 stands modified to the above extent.

RBI

DBOD

  • Customer Service – Non-issuance of Passbooks to Savings Bank Accountholders (Individuals)

Circular No DBOD.No.Leg.BC.32/09.07.005/2006-07 Dated 04.10.2006: The Reserve Bank of India vide the above circular notifies that it has been receiving representations from customers including senior citizens' associations that many banks have discontinued issuing pass books to Savings Bank Account holders (Individuals) and said banks are issuing Statement of Account to Savings Bank account holders at quarterly intervals instead of monthly intervals as stipulated under RBI circular DBOD.No.Leg.BC.74/ 09.07.005/2004-05 dated April 10, 2004. The RBI therefore, through the present circular, notifies that a passbook is a ready reckoner of transactions and is handy and compact and as such, is far more convenient to the small customer than a statement of account. Banks are therefore advised to invariably offer pass book facility to all its savings bank account holders (individuals) and in case the bank offers the facility of sending statement of account and the customer chooses to get statement of account, the banks must issue monthly statement of accounts in terms of circular DBOD.No.Leg.BC.74/ 09.07.005/2004-05 dated April 10, 2004. The cost of providing such Pass Book or Statements should not be charged to the customer.

Press Release

  • The United Western Bank Ltd. branches to operate as Industrial Development Bank of India Ltd. branches from October 3, 2006

Press Release No. 2006-2007/462Dated 30.09.2006: Vide the above press release, the Government of India notifies the sanctioning of the Scheme for the amalgamation of The United Western Bank Ltd. with Industrial Development Bank of India Ltd. The amalgamation will come into force on October 3, 2006. All the branches of The United Western Bank Ltd. will function as branches of Industrial Development Bank of India Ltd. with effect from this date. Customers, including depositors of The United Western Bank Ltd., will be able to operate their accounts as customers of Industrial Development Bank of India Ltd. with effect from October 3, 2006. In accordance with the Scheme of Amalgamation, Industrial Development Bank of India Ltd. shall make an upfront payment in cash of Rs.28/- (Rupees twenty eight only) in respect of every fully paid-up share to the members of The United Western Bank Ltd., who were, as on the prescribed date, registered as the holders of shares of the bank, in partial satisfaction of their claim in respect of their interest in such shares. Further, in terms of the Scheme, if any surplus remains after meeting all the liabilities out of the realisation of assets of The United Western Bank Ltd., the shareholders may receive pro-rata payment after the prescribed period.
Telecom Regulatory Authority of India (TRAI)

  • The Quality of Service of Broadband Service Regulations 2006

Notification No. 304-6/2004-QoS Dated 06.10.2006: The Telecom Regulatory Authority of India, in exercise of powers conferred upon it under section 36 read with sub-clauses (i) and (v) of clause (b) of sub section (1) of section 11 of the Telecom Regulatory Authority of India Act 1997(24 of 1997), has framed The Quality of Service of Broadband Service Regulations 2006. These Regulations shall be applicable to all the Internet Service Providers, Basic Service Providers, Unified Access Service Providers and Cellular Mobile Telecom Service Providers including Mahanagar Telephone Nigam Limited and Bharat Sanchar Nigam Limited, providing Broadband Service and shall come into force with effect from 1st January, 2007. As per the new regulation, it is stipulated that service providers shall meet the benchmarks for the Quality of Service parameters for Broadband specified by the Authority. The said service parameters would be applicable in terms of Service Provisioning /Activation Time, Fault Repair / Restoration Time, Billing Performance etc, a default of which can invite imposition of refund of deposits to customers.
International Legal Cases and News

Cases

Criminal

  • Nicholas Yarris Vs. County Of Delaware & Ors

The accused in the present case claimed that he spent twenty-two years on death row for kidnaping, rape, and murder he did not commit because Delaware County, its prosecutors, and its detectives obscured and destroyed evidence pointing to the actual killer, manufactured evidence against him, and thwarted his demands for DNA testing. He filed action under 42 U.S.C. § 1983 alleging violations of his rights under the United States Constitution and Pennsylvania law. He alleged that the CID Detectives violated his constitutional rights by using trickery or deceit to obtain false evidence against him. The prosecutors and detectives moved to dismiss accused’s claims on the basis of absolute and qualified immunity. The District Court denied the motion to dismiss in part and hence present appeal. The question that arose in the present appeal was whether the District Court properly concluded that the prosecutors and detectives are not entitled to immunity from any of accused’s claims. Held, accused has identified no support for the proposition that the use of impermissible interrogation techniques in securing statements prior to their use in court constituted an independent violation of accused’s constitutional rights. In the absence of such a violation, the CID Detectives are entitled to qualified immunity with respect to these claims. Order of the District Court therefore affirmed in part and reversed in part, and case remanded for further proceedings.

  • Heath Matthew Herring V The State Of Texas

In the present case, the appellant-accused was accused of committing theft and threatening the complainant that unless the complainant gives the accused all the money he would kill the complainant with a knife. The complainant actually never saw whether the accused carried the knife or not. Upon trial, the trial court judge found the accused guilty of aggravated robbery and sentenced him to a sixteen-year prison term. The Tenth Court of Appeals reversed the accused’s conviction and rendered a judgment of conviction for the lesser-included offense of robbery, remanding the case for a new punishment hearing. The Court held that because the complainant did not see or feel a knife, the evidence is legally insufficient to prove that the accused used or exhibited a deadly weapon. Hence, the present petition by the State for review. Held, statement by the accused that he had a knife and his threat to kill the complainant qualify as admissions under the Texas Rules of Evidence, Section 801(e)(2). As such, they are not hearsay and are admissible as substantive evidence and therefore, they qualify as evidence to support the finding that the accused did indeed possess a knife and did in fact threaten to kill the complainant. The Court of Appeals holding that unless a complainant sees or feels the deadly weapon in question, an admission of possession and a threat to kill are legally insufficient to establish use of a deadly weapon is not correct. Its judgment reversing the trial court's conviction and sentence for aggravated robbery is therefore reversed, and the trial court's judgment is reinstated

Civil

  • bpzqBominflot, Incorporated; Bominflot Ltd Vsbpqz . The M/V Henrich S (IMO NO. 9158513), her engines, tackle, nets, gear, apparel, appurtenances, etc., in Rem

In the present case, appellants Bominflot appeal against a district court order dismissing their maritime lien claim against appellee The M/V Henrich s ("the Vessel"). The appellants, an international conglomerate, organized under the laws of the United States and the United Kingdom specialized in providing bunkers to vessels. The Vessel in question, during the time of the relevant bunker deliveries, was charted to Kien Hung Shipping Co. Ltd. of Taiwan which had since then become insolvent and has liquidated its assets. The appellants alleged that it never received any payment for the bunkers. Therefore, appellants brought an action in the United States District Court for the District of South Carolina under 28 U.S.C.A. § 1333 claiming, inter alia, a maritime lien against the appellee, Vessel, pursuant to Rule C of the Federal Supplemental Rules of Certain Admiralty and Maritime Claims in conjunction with the Federal Maritime Lien Act (FMLA). The district court dismissed the action under Rule 12(b)(6) of the Federal Rules of Civil Procedure, finding that appellants, Bominflot had failed to state a claim upon which relief may be granted because English law applied to the dispute and English law does not recognize the existence of maritime liens for bunkers. Hence, present appeal. Held, because English law applies to this dispute, Bominflot cannot enforce a maritime lien against the Vessel. Order of District Court was therefore affirmed.

News

  • Efficacy of crowded prisons questioned by UK top judge

Lord Chief Justice of England and Wales, Lord Phillips of Worth Matraversk, expressed doubts about whether non-violent offenders are actually rehabilitated in prison. In light of serious overpopulation of British prisons, the Lord Chief Justice questioned traditional prison sentences' ability to thwart recidivism. Britain's prison overpopulation crisis has led to proposals for alternative sentencing, such as community service and "tag and release programs". The problem of prison overcrowding was highlighted in the US just last week, when California Gov. Arnold Schwarzenegger issued an emergency proclamation to relieve overcrowding by allowing inmates to be transferred to other states.

  • Tougher immigration laws for Russia proposed after Putin call for crackdown

Russian immigration officials have proposed stricter migrant laws on the heels of a call by President Vladimir Putin to crack down illegal immigrants. The proposals include harsher penalties for businesses that employ illegal migrants, restricting border crossings, amending the Criminal Code and limiting the duration of visas distributed to certain nationalities. Although a Russian immigration spokesman has insisted that the proposals are not a response to ongoing difficulties with Georgia, Putin appeared to target Georgians in his address, saying groups with Mafia ties and an "ethnic hue" should be barred from outdoor markets. Tensions between Russia and Georgia escalated last week when four Russian officers were arrested in Georgia on charges of espionage. The officers have since been returned to Russia. Russian police have closed down several Moscow casinos and restaurants for alleged links with the Georgian Mafia and 180 Georgians were deported for alleged immigration violations.

  • British Vioxx plaintiffs denied US venue by New Jersey Judge

A New Jersey Superior Court Judge has issued an order striking down about 50 lawsuits brought by British plaintiffs in the New Jersey state court against Merck & Co, the manufacturer of the drug Vioxx , which has caused health problems for thousands of arthritis patients both in the US and abroad. In her ruling, the Judge noted that compensatory damages are available to plaintiffs in the UK courts and these damages, independent of punitive damages, are sufficient to render the available damage remedies in the foreign court as adequate. Defendant Merck submitted that it will be amenable to service of process in the UK and that the same is sufficient to render the foreign jurisdiction available. The defendant also stated that it will not act to prevent Plaintiffs from returning to this court if the UK court declines to accept jurisdiction. The decision comes as a blow to hundreds of British patients who suffered increased risks of heart attacks and strokes after taking the pill for over 18 months, and who have been waiting since April to hear if they could bring suit in the US. Since the drug was withdrawn from the market in 2004, Merck has steadfastly denied allegations that Vioxx was not tested properly beforehand. Nearly a dozen related state and federal lawsuits have gone to trial in the last two years against Merck, with the drug company winning about half of the cases.

  • Legislative retaliation threatened by Turkey if France passes Armenian genocide law

The Head of the Justice Committee that reviews draft legislation in Turkey's Parliament warned in an interview that if France attempts to make it a crime to deny that the Ottoman Empire's treatment of the Armenians in 1915-18 was genocide, Turkey could pass a law penalizing anyone who denies that the French treatment of Algerians under colonial rule was similarly genocide. In May 2006, French lawmakers attempted to pass the same law but parliamentary debate did not conclude before the legislative session ended. The issue had been dormant until just last week when French President Jacques Chirac said while visiting the Armenian capital that Turkey should admit the genocide before joining the EU.

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