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Legislative and Regulatory Update
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[No.186] |
March
02, 2007 |
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To keep you informed about the latest Legislative
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Supreme
Court |
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Respondent, a member of scheduled caste was appointed as a Postal Assistant against vacancy reserved for scheduled caste. Respondent, in support of his claim produced a certificate on the basis of which he got the job. Thereafter, on the basis of information received that the respondent in fact belonged to Christian Community; a disciplinary proceeding was initiated against him. Meanwhile, his caste certificate was also cancelled by the District Collector. The disciplinary authority thereafter dismissed him from service. A departmental appeal preferred against same was dismissed. Questioning the said order of the Disciplinary Authority as also that of the Appellate Authority, an Original Application was filed by the respondent before the Central Administrative Tribunal which refused to taken into consideration the event which had taken place subsequent to the initiation of the disciplinary proceeding namely, the order passed by the Collector cancelling the Caste Certificate granted in favour of the respondent. The High Court also dismissed writ petition against judgement of Central Administrative Tribunal. Hence, present appeal. Held, once the certificate on the basis whereof the respondent obtained employment stood cancelled, even no question of allowing him to continue in service would arise, if he had been appointed on the basis of such a Certificate. Therefore, we are of the opinion that in a case of this nature, it might not have been necessary to initiate any disciplinary proceeding against the respondent.
Appellant assessee deals in manufacture and sale of Auto Rickshaw. For the said purpose, it purchases body of Auto Rickshaw from another manufacturer. The question which arose for consideration in this appeal was whether mounting of the body of the Auto Rickshaw on the Chassis thereof would amount to 'manufacture' within the meaning of Section 2(e-1) of the U.P. Sales Tax Act, 1948. Tribunal had held that by mounting auto rickshaw body on the chassis a new product comes into being. However, it proceeded to hold that both chassis and auto rickshaw being under the same entry no tax would be payable. Upon appeal, held, Tribunal was not correct in that behalf as it failed to take into consideration the fact that if two articles were purchased by the assessee and the articles it sold were different commodities; purchase tax would be payable therefor as the terms and conditions laid down in Form 3-A had not been satisfied. Appeal is dismissed.
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High Courts |
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Gujarat
Respondent No. 2 was declared as a sick company by BIFR and it appointed IDBI to examine the viability of respondent No. 2 Company and submit its report, if found viable. After report was submitted by IDBI, BIFR then passed an impugned order freezing wages at current level for next 5 years. Petitioner Union, aggrieved by said order, filed an appeal before Appellate Authority, AAIFR and applied for condonation of delay. Said appeal was dismissed by AAIFR on ground that it was not filed within period of limitation of 60 days and, therefore, they had no authority under Act to condone delay in filing appeal late beyond period of limitation. Hence, present petition. Held, when there is an agreement arrived at with management, at instance of Operating Agency and when BIFR had passed Order at Delhi and appeal was also filed at Delhi, which was dismissed on ground of limitation, then, in our considered opinion, this Court will have no jurisdiction. If at all any Court had jurisdiction, then it would be Delhi High Court. Even assuming for sake of argument that this Court had also parallel territorial jurisdiction, then also, relying on judgment of 3 Judges Bench of Hon'ble Supreme Court in Kusum Ingots case, we would have refused to exercise our discretionary jurisdiction by invoking doctrine of forum conveniens, as, in our considered opinion, proper forum would be Delhi High Court.
Petitioners, female health workers, challenged the Order of appointment issued by respondent authorities, based on Government Resolution dated 16th February, 2006, fixing salaries of female health workers on a fixed scale rather than a running time scale. They also challenged GR dated 16th February, 2006, as violative of Article 14 and 16 of the Constitution of India. Hence, present petition. Held, in view of observations made by Apex Court and High Court of Rajasthan, direct Petition for a writ of mandamus without prior approach to respondents is not maintainable. Unless and until petitioner made approach to respondents by way of representation and if representation is rejected and/or there is inaction on part of authorities in deciding such representation, petition can, ordinarily, not to be entertained by this court. Petition is dismissed.
Delhi
Petitioners purchased flats on execution of relevant documents/ conveyance deeds and upon payment of consideration from original members of the respondent societies. Respondent-societies then charged petitioners who are purchasers of flats from the original members of the society, charges in the form of gate fee, development fee etc to make them members of the society to the tune of 1 lac. Same was challenged by petitioners. Hence, present petition. Held, there is no bar on transfer of flat by allottee of a flat to a third party and when such a sale takes place by way of execution of transfer deed or agreement for sale, purchaser of flat steps into shoes of original occupier as he comes into occupation of said flat by virtue of aforesaid transfer. By virtue of aforesaid transfer, he also becomes entitled to use and occupy flat and for doing so, he is also entitled to user of common facilities including those facilities which are mentioned in Section 91 of Delhi Co- operative Societies Act, 2003. Society may ask for and demand payment of a reasonable amount from said transferee of a flat for making available to him all those aforesaid facilities, but there could not be any justification for demanding an amount, which is not commensurate with object sought to be achieved.
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Insurance
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Circular No.: 054/IRDA/F & A/FEB-07 Dated 20.02.2007: Pursuant to letter no. 37/2/F&A/Circulars/146/JAN/2006-07 dtd 4th January 2007 the Authority had circulated draft of the guidelines for disclosure in respect of unit linked business which are to form part of the annual accounts of the insurance companies with effect from financial year 2006-07. The draft guidelines were circulated seeking comments of insurers and thereafter the format of reporting under the IRDA (Preparation of Financial Statements and Auditor's report of Insurance Companies) Regulations, 2002 has been modified to ensure transparency and consistency in the disclosures across the industry. The revised formats include Segregation of the Unit Linked Revenue A/c into two components, viz., (i) Non -Unit Funds and (ii) Unit Fund; Format of reporting of the Segregated funds - Revenue A/c, Balance Sheet and the underlying Schedules; Additional disclosures to form part of the Annual Report. Vide the present circular, IRDA further clarifies that the Investment portion of premium shall be disclosed in the Unit segment and the non-investment portion in the non-unit segment; Income on investment shall be disclosed under unit and non unit portion in consonance with (1) above; Fees and charges shall be shown as "Income" in the non-unit segment and as "Expenses" in the unit segment; All operating expenses and Commission shall be disclosed in non-unit segment; Claims arising from cancellation of units alone shall be shown against linked segment and other items like mortality, morbidity and value of guaranteed benefits shall be disclosed under non-unit segment.
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RBI |
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DBOD
Circular No.DBOD.No.BL.BC. 59 /22.01.010 /2006-2007 Dated 21.02.2007: As per Reserve Bank’s circular DBOD.No.BL.BC.86/22.01.001/2004-2005 dated April 30, 2005 banks were advised to formulate a scheme with the approval of their Boards, for providing services at the premises of a customer and submit it to Reserve Bank for approval. Accordingly, vide the present circular, Reserve Bank of India notifies that in order to ensure transparency in respect of the rights and obligations of customers, uniformity in approach and to clearly delineate the risks involved, it has been decided to lay down general principles and broad parameters to be followed by banks while offering "doorstep" services to their customers. Accordingly, banks may prepare a scheme for offering "doorstep" banking services to their customers, with the approval of their Boards, in accordance with the guidelines of Reserve Bank of India. Further, banks are advised to take suitable steps to educate their "Agents" to enable them to detect forged and mutilated notes so as to avoid frauds and disputes with the customers. Banks are also further advised to take into account the various risks that may arise on account of offering doorstep banking services to customers directly or through agents and take effective steps to manage the same. Banks may specifically consider prescribing cash limits for their agents and customers in this regard.
DNBS
Circular No. DNBS (PD) CC. No.90/03.10.001/2006-07 Dated 23.02.2007: Concerns have been expressed that some of the corporates / entities may be hoarding foodgrains which could have had the benefit of resources from the NBFC finance. Accordingly, vide the above circular Reserve Bank advises all NBFC-ND-SI (all non-deposit taking NBFCs with asset size of Rs. 100 Crore and above) to undertake a scrutiny of their financial exposures to large borrowers for procurement of foodgrains. The above class of NBFCs may also consider a quick scrutiny of the accounts on whom they have large exposure and confirm to themselves that funds have not been diverted for procurement of foodgrains with a view to hoarding. Further, NBFC-ND-SI are being sensitized to this issue and are requested to provide a comprehensive report on the above by March 10, 2007.
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| International Legal
Cases and News |
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Cases
The question that arose in the present case before the US Supreme Court on appeal from the US Court of Appeals for the Ninth Circuit was whether the Democratic and Republican parties of Washington State can successfully challenge the legality of the voter-approved "Top 2" primary system on constitutional grounds. The system would allow two candidates from the same political party to advance from a primary to the general election. The system allows candidates to indicate their party affiliation on the ballot and is open to voters regardless of their party. The system is the successor to the blanket primary that the Supreme Court struck down in 2000 on the grounds that it violated political parties' rights. The Washington Democratic and Republican parties sued to block the new system, approved by voters in 2004. The parties said they would be forced to be associated with candidates they did not choose. Lower federal courts agreed with the parties. The Court of Appeals for the Ninth Circuit had held that the new system, which has never been used, infringes on the rights of political parties to choose their own nominees.
The child involved in the case had attended private school throughout his childhood, at a school that does not have an approved special education program. The defendants, boy's parents refused to have him placed in a public school program, kept him in private school, and obtained tuition reimbursement. The defendants contended that the special education program proposed by the public school system was inadequate to meet the child's needs, prompting them to send him to a private school and then obtain reimbursement. The same was challenged by New York City's Board of Education but US Court of Appeals for the Second Circuit ruled against them and hence the present appeal. Therefore, the question before the US Supreme Court in the instant case is whether the parents of a learning-disabled student could be reimbursed for the costs of enrolling their child in a private school after deciding the public school's special education program did not sufficiently satisfy their child's needs under the Individuals With Disabilities Education Improvement Act.
In the present case before the US Supreme Court, the Court must decide whether a police officer violated a fleeing suspect's constitutional rights by using deadly force when he bumped his police car into the suspect's car to end a high speed chase. The suspect was pursued by Coweta County, Georgia police when he refused to pull over while speeding. Video taken from the dashboard of the police car showed the ensuing collision, which resulted in suspect's paralysis and eventual suit against former sheriff's for violation of the Fourth Amendment. The US Eleventh Circuit Court of Appeals held that suspect’s qualified immunity claim under the Fourth Amendment was an insufficient defense because he acted unreasonably.
News
A US District Judge suspended a requirement that the Maryland Attorney General submit proposals for using medical professionals to conduct lethal injections until such time as the controversy over the status of the state's capital punishment is resolved. Maryland death row inmate Vernon Evans, Jr.had initially challenged the constitutionality of lethal injections, saying that personnel are not qualified to protect against the inmate's pain and suffering during the procedure. The judge had previously ordered both the attorney general and Evans to submit status reports every 90 days, including proposals from the state on the feasibility of using medical professionals to perform the injections. The state claims that lethal injection is not a medical procedure and that executioners are qualified to perform it, and that using medical professionals would be nearly impossible since the American Medical Association discourages them from participating in capital punishment. The judge plans to use the information to balance the harm to Evans if he is forced to undergo an injection performed by executioners against the burden to the state of Maryland if it is forced to recruit medical professionals. The Maryland Court of Appeals had ruled that the state's lethal injection procedures are subject to the state's Administrative Procedures Act (APA) and therefore must be developed under the guidance of the Maryland attorney general, a legislative committee and with review and comment by the public unless the legislature acts to explicitly exempt lethal injection protocol from the APA.
Iraq's cabinet approved a draft oil law outlining the development and distribution of Iraqi oil and giving the national government control over oil revenues, according to a senior Iraqi oil official. The proposed law shall now be put before the Iraqi National Assembly for revisions and ratification. The cabinet's approval of the draft law comes just one day after the Iraqi Oil Ministry indicated its passage was in jeopardy because the Kurdish administration in the north of the country had been withholding support for the measure. The Kurdistan Regional Government reportedly endorsed the draft law debating the wording of some of its terms.
Canada Public Safety Minister said that Canada may adopt a British special counsel model to preserve the legality of using its security certificates to indefinitely detain foreigners with suspected ties to terrorism. In the UK, security-cleared special advocates can challenge secret intelligence presented to a court to justify the indefinite detention of non-citizens. The Minister’s comments on CTV's Question Period came in response to Friday's ruling by the Supreme Court of Canada that the current use of security certificates for indefinite detentions violates the Canadian Charter of Rights and Freedoms. Although the court determined that security certificates are unconstitutional and without effect, Minister suggested that the court's decision should be read as upholding the "general principle" of security certificates, while requiring some reforms. The Court indicated that indefinite detentions were permissible as long as there was a meaningful review process of materials that detainees themselves could not see. The judgment will not take effect for one year in order to allow Parliament time to comply with the Court's ruling.
The Supreme Court heard oral arguments in EC Term of Years Trust v. United States, where the Court considered if an individual taxpayer is entitled to a $3 million refund of wrongly collected taxes, even though the deadline for appealing to the Internal Revenue Service (IRS) had expired. EC Term of Years Trust sued the IRS under the wrongful levy statute, 26 USC 7426, but the Fifth Circuit Court of Appeals upheld a lower court decision foreclosing the action under the nine-month statute of limitations in tax refund statute 28 USC 1346.
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