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Legislative and Regulatory Update
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[No.184] |
February
10, 2007 |
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Supreme
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Appellant, a sitting MP of Parliament, was accused of murder and tried for charges under Section 302 IPC and Section 323 read with Section 34 IPC, but was acquitted by Sessions Court. Said order of trial court was challenged by respondent in an appeal before High Court, wherein appeal was allowed by High Court and appellant was convicted Section 304 Part II read with Section 34 IPC. Immediately after pronouncement of said
judgment by High Court, appellant resigned from membership of Parliament and filed present application to suspend order of conviction by High Court and thereby remove disqualification incurred under Section 8(3) of Representation of People Act, 1951 due to his conviction. Hence, present application.
The argument that appellant has given up his right under sub-section (4) of Section 8 and should not be permitted to offer himself as a candidate, again is wholly misconceived. If a person convicted of any offence enumerated in Sub-sections (1), (2) and (3) of Section 8 of Act files an appeal within three months he continues to remain a Member of Parliament or Legislature of a State on basis of protection afforded by Sub-section (4), but not on any moral authority because electorate had exercised their franchise prior to order of conviction and not when he had become a convict. But a person who resigns from Parliament or Assembly and seeks a re-election, if elected, will have greater moral authority to represent constituency. Therefore, it is not possible to accept contentions. Application is allowed.
Respondents herein were appointed by the 'Doordarshan' and 'Akashvani'. Parliament enacted the Prasar Bharati Act, 1990 to provide for the establishment of a Broadcasting Corporation for India, to be known as Prasar Bharati. As per the Act, an officer or other employee transferred by an order under Act shall cease to be an employee of the Central Government and become an employee of the Corporation. No order of deputation in respect of any of the employees or officers of the Doordarshan or Akashvani had also been passed. The officers and employees of erstwhile Akashvani and Doordarshan, however, continued to work with the Corporation. They drew their salaries and other remunerations. The same terms and conditions of their services were continued to apply to them as if they were the Central Government employees. The Corporation passed orders of transfer of the operational and administrative staff with a view to optimize the use of man-power. The legality and/or validity of the said orders of transfer were questioned before the Central Administrative Tribunal by the respondents and order of transfer was quashed by Tribunal. Appellants thereafter filed writ petition before High Court which was dismissed. Hence, present appeal. Held, we do not find that the action taken by the appellants herein in transferring the respondents is in any way arbitrary or irrational. The orders of transfer have been passed in the interest of the administration and with a view to carry on its functions. We, therefore, are of the opinion that the High Court was not correct in opining that the respondents could not be transferred by the Corporation.
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High Courts |
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Bombay
Nagpur Shikshan Mandal, through its Secretary, Smt. Mahila Binzani Mahavidyalaya, Mahal, Nagpur & Anr Vs. Haribhau & Ors
Petitioner-Management, without following prescribed procedure, vide a circular resolved to appoint respondent No. 3 , who was junior to respondent No. 1, to 'to act' or look after duties of Assistant Headmaster. Respondent no. 1 therefore, preferred an appeal before School Tribunal and same was admitted for final hearing. Petitioner management then filed an application before School Tribunal seeking dismissal of appeal on preliminary point urging that respondent No. 3 was just given charge of post of Assistant Head Master and not promoted to said post. Therefore there is no supersession as mentioned in Section 9 (1) (b) of M.E.P.S Act. Same was rejected by School Tribunal. Hence, present writ petition. petitioners are duty bound to observe all statutory obligations which follow by virtue of recognition, and the provisions of Maharashtra Employees of Private Schools [Conditions of Service] Regulation Act, 1977 and Rules made thereunder. Petitioners, however, are seen to carry a feeling that they are not bound by statutory obligations under Section 5 (1) of Maharashtra Employees of Private Schools [Conditions of Service] Regulation Act, 1977 and MEPS Rules of its statutory duty, and hence have resolved not to fill in post, and decided to make arrangement for “acting” only. This approach is, on its very face, 'malafide in law', and is atrocious, autocratic and obnoxious. Court finds that in service jurisprudence, obligation or duty to fill in a post would ordinarily be a strange preposition, however, law which governs field gives a mandate to Management of private school to fill in post, corresponding obligation whereof is prima facie disregarded stubbornly and with least respect to law. Mandate of law is being overcome by adopting circuitous procedure which is ingeniously devised. Petition is dismissed.
Delhi
Petitioners were awarded contract by respondents. Some dispute arose and in pursuance of provisions of arbitration agreement entered between parties, two railway gazetted officers were appointed as arbitrators to adjudicate upon the same. Arbitrators awarded a non-speaking unreasoned award in favour of petitioners. On publication of said arbitral award, petitioner filed application under Section 14 & 17 of Arbitration Act, 1940 for making it rule of court. Respondents challenged said award and filed interim application against said award stating objections. Hence, present petition. Respondent, Union of India, challenged arbitral award on ground that arbitral award was invalid as even though arbitrator retired as gazetted officer, he continued to hold post of arbitrator and made arbitral award. Held, there is no clause in agreement that if a person ceases to be a Gazetted Officer, he ceases to be arbitrator as well. Therefore, he could continue as arbitrator though it was permissible for appointing authority to appoint another arbitrator in his place. However, since such a course of action was not taken and for almost two years objector also participated in proceedings, it would be a clear case where persona designated waived his right to appoint another arbitrator in his place and accepted him as arbitrator even after his retirement.
Petitioner was alleged of grave misconduct during his service. An enquiry was initiated into said allegations of misconduct and he was dismissed from service. Petitioner preferred a department appeal which was also dismissed. Thereafter, petitioner filed an application before Central Administrative Tribunal but same was also dismissed. Petitioner challenged same on ground that penalty imposed on him was disproportionate to alleged misconduct and that disciplinary authority had relied on his past service records for dismissing him instead of taking into account present charges
leveled against him. Hence, present petition. Held, mere reference to past record or punishments in order of penalty would not by itself vitiate said order, on ground that past record or punishments had not been made a part of charge sheet. It would be necessary to examine order of penalty in light of all facts and circumstances of the case, and to ascertain whether past adverse/bad record and punishments are mainly responsible for impositions of penalty as imposed upon charged employee. Only if it appears that order of punishment was mainly based upon past records or punishments, i.e. Disciplinary Authority was deeply influenced by it and notice of same is not given to charged officer, could it be said that punishment order is in violation of principles of natural justice. Petition is dismissed.
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Insurance
Regulatory and Development Authority |
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Circular No. : 47:IRDA/ACTL/FUP/VER 4.0/JAN 2007 Dated 31.01.2007: Vide the present circular, IRDA notifies insurance companies that every life insurance product, whether individual or group, and every rider, should be identified with a unique number; and this number has to be quoted in all relevant documents furnished to the policyholders, other users (public, distribution channels) and also in the statutory returns filed with the IRDA. This unique number will have ten characters/digits to indicate the registration number of Insurer allotted by the IRDA, to indicate the nature of product/rider, numeric value to indicate that the product is the nth product of insurer , to indicate the Version and numeric value to indicate the number of times the product is modified.
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RBI |
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DBOD
Circular No. DBOD.No.PSBD. 7269/16.13.100/2006-07 Dated 05.02.2007: In cases where banks have raised funds through issue of American Depository/Global Depository Receipts, banks issue shares to the depositories who in turn issue ADRs/GDRs to the ultimate investors. Banks generally enter into an agreement with the depository to the effect that the depository would not exercise voting rights in respect of the shares held by them or they would exercise voting rights as directed by the Board of Directors of the bank. In this context, RBI vide the present circular notifies that to eliminate possibility of any interference of the depositories in the management of the bank, banks should give an undertaking to Reserve Bank that they would not give cognizance to voting by the depository, should the depository vote in contravention of its agreement with the bank and that no change would be made in terms of the Depository Agreement without prior approval of RBI.
Press Release
Press Release 2006-07/1025 Dated 29.01.2007: Reserve of India vide present press release notifies that Network 18 Fincap Ltd, the holding company of TV-18, has been placed in the ban list for FII/NRI/PIO investments under FEMA regulations. Reserve Bank of India on January 29, 2007 has notified that no further purchases of equity shares of Network 18 Fincap Ltd., will be allowed through stock exchanges in India on behalf of Foreign Institutional Investors (FIIs)/Non Resident Indians (NRIs) and Persons of Indian Origin (PIOs) under Portfolio Investment Scheme (PIS). The Reserve Bank has stated that in terms of the guidelines issued by Ministry of Information and Broadcasting, the FII limit for investment in print media companies is 26 percent including both direct and indirect holdings. Network 18 Fincap Ltd., is the holding company of TV-18 and TV-18 has been put on the ban list by the Reserve Bank of India. As any subsequent change in holding by FIIs in Network 18 Fincap Ltd. will result in a change in the indirect holding of FIIs in TV-18, it has been decided to place Network 18 Fincap Ltd. in the ban list for FII/NRI/PIO investments.
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Telecom
Regulatory Authority of India (TRAI)
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Press Release No. : 19/2007 Dated 02.02.2007: Telecom Regulatory Authority of India vide present circular notifies the issuance of amended Regulations on Port charges which shall be effective from 1st April, 2007. With the induction of the competition in the telecom sector in the country, the interconnection among the service providers has become an essential requirement for the development of the sector. In the multi-operator multi-service scenario, establishment of effective interconnection helps the consumers of one network to communicate with the consumers of another network. Port is an essential part for the establishment of the interconnection between two networks. The Port charges are payable by the interconnection seeker to the interconnection provider for terminating interconnection links on the network interface of the interconnection provider. On 28th May 1999, the Authority had notified "The Telecommunication Interconnection (Charges and Revenue Sharing) Regulation 1999", which specified arrangements among service providers for interconnection charges and revenue sharing for all telecommunication services including Port Charges. A revised regulation on Port Charges: "The Telecommunication Interconnection (Port Charges) Regulation 2001", was made effective on 28th December 2001. There has been a long pending demand by interconnection seekers that Port charges need to be reviewed to align with the current switch/exchange costs. The present amendment has been issued after reviewing the costs. In the present review, the Authority has taken costs of the network elements furnished by the service providers (interconnection seekers and interconnection providers) and also aligned the costing methodology with current practices adopted by the Authority in various regulations / tariff orders.
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| International Legal
Cases and News |
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Cases
Apple Inc, Mac computer and iPod maker, and Apple Corps Ltd., the record label owned by the Beatles and their families had entered into a 1991 trademark agreement, when the computer company began promoting music products and as per the 1991 agreement, Apple Computer would retain the logo for its "core business." Thereafter, Beatles sued the computer company arguing that the online iTunes music store violated the agreement, which forbids the use of the Apple trademark for any works "whose principal content is music and, or performances." UK High Court held that because iTunes was "a form of electronic shop" and "does not suggest a relevant connection with the creative work," the computer company was not in breach of the agreement.
The appellant was convicted of theft over $20,000 and sentenced to five years in prison. The trial court suspended the sentence and placed the appellant on community supervision for ten years. After trial, the appellant timely filed a notice of appeal and motion for new trial. Subsequently, the appellant filed a motion for a free appellate record with an affidavit of indigency. The trial court held appellant had not established his indigency and denied him a record at public
expense. On appeal to the Third Court of Appeals, appeal was dismissed. Hence, present suit. Held, that an inquiry into the reasonableness of a defendant's expenses and financial obligations is relevant in determining whether a defendant is indigent and unable to pay or give security for the appellate record. Court of appeals' decision vacated and remand to the trial court.
The appellant was charged with inflicting severe bodily injury on her stepchild. Apparently, appellant locked the child in the bathroom while she slept. The trauma of this confinement caused the child to suffer severe constipation and his abdomen was distended and hard. Thereafter, child was removed by Child Protective Services to foster care. The jury convicted appellant of first degree felony offense of injury to her step child and sentenced her to sixty-five years' confinement. On appeal, the Fort Worth Court of Appeals reversed the conviction, holding that the evidence was insufficient to support the conviction on the basis of serious bodily injury, and remanded the cause for a new trial on ground that the appellant caused serious mental deficiency, impairment, or injury. Hence, present petition by State for discretionary review to examine the court of appeals' conclusions both that the evidence was legally insufficient to prove serious bodily injury and that the jury charge authorized a non-unanimous verdict. Held, evidence regarding the child's constipation did not support a jury finding of serious bodily injury beyond a reasonable doubt and therefore reversal of conviction for injury to child is affirmed.
News
Thirty-eight US states and Samsung Electronics agreed to a $90 million settlement, pending court approval, to resolve allegations that Samsung fixed prices and engaged in other anticompetitive activities in the market for DRAM memory chips for computers. The settlement terms require the company to refrain from conduct that could substantially lessen competition and to cooperate with the states in prosecuting co-conspirators. The civil suits against Samsung and other DRAM manufacturers came after the US Justice Department filed criminal charges against many DRAM manufacturers, alleging an illegal conspiracy to drive up chip prices.
Fifty-seven countries have signed an international treaty in Paris banning governments from holding suspects in secret detention. The International Convention for the Protection of All Persons from Enforced Disappearance was approved by the UN Human Rights Council and adopted by consensus by the UN General Assembly, but it has not been endorsed by the United States and several western European countries, including Germany, Spain, Britain and Italy.
Former Westar Energy CEO, David Wittig, was resentenced to 24 months in prison, his third sentencing for charges stemming from a 2002 indictment on bank fraud, money laundering and conspiracy. In July 2003, Wittig was given 51 months in prison; that sentence was vacated by the US Tenth Circuit in February 2006 for errors in computing his sentencing level. On remand, a US District Judge issued a 60-month sentence, which was overturned in November 2006 on similar grounds. The bank fraud charges stem from a 2001 loan transaction in which the then President of Topeka's Capital City Bank, illegally increased Wittig's credit line for a joint real estate investment. In a separate case, Wittig and his former Chief Strategy Officer were found guilty in 2005 of fraudulently taking millions of dollars from Westar, the largest electric utility in Kansas.
The US Department of Justice (DOJ) is planning to follow up on a 2006 amendment to the 1994 Violence Against Women Act with measures that would allow DNA samples to be taken from the majority of people arrested by federal agents, including illegal immigrants. Supporters of the new rules believe that bigger DNA databases will help to prevent crime. DNA samples are currently only taken from people convicted of felonies. The new DNA procedures would be similar to current fingerprinting practices, and would be routine during booking.
The Philippine Senate passed an anti-terrorism bill which will allow authorities to detain suspected terrorists for up to three days without filing charges. The legislation also includes a provision that grants wrongfully detained persons a right to compensation of up to P500,000, roughly 10,000 American dollars. The Philippines government has been fighting Islamist separatists and communist rebels for years, and both groups have used terror tactics.
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