[No.187]

Supreme Court

• Jatinder Nath Vs. Chopra Land Developers Pvt. Ltd. and Anr.

The appellant, owner of land, and respondent-Developer entered into an agreement to construct a housing complex on suit land. As per said Agreement, Developer agreed to finance the construction from its own resources and it was agreed between parties that in case of any dispute arising between them in this respect, the matter shall be referred to the Sole Arbitrator for his valuable decision and his decision shall be final and binding on both the parties. It was further agreed that the agreement being entered into between the parties at Faridabad, the Faridabad Courts only shall have the jurisdiction in case of any dispute between the parties to the said agreement. Accordingly, when the dispute arose between the parties, an Arbitrator was agreed upon between parties and the Arbitrator fixed hearing on a particular date. But on the said date neither the Arbitrator nor the Developer was present. Therefore, appellant approached High Court and matter was pending before High Court when thereafter, the Arbitrator fixed the matter for hearing. The Arbitrator was requested not to proceed by appellant. Despite the request, the Arbitrator proceeded to give his Award (ex parte). Respondent-Developer filed an application under Section 14 of Arbitration Act for filing the Award in the court of Additional Civil Judge, Faridabad,"the trial court". Notice of the said application was also given to the appellant. The appellant appeared and filed his objections. He objected to the jurisdiction of the trial court on ground that the suit land stood located in Saket, New Delhi and, therefore, the trial court had no jurisdiction to pass the decree in terms of the said Award. Trial Court dismissed application by respondent Developer on ground that in view of Section 31(4) of Arbitration Act, since the land in question stood located in Saket, New Delhi and since the appellant is the resident of Delhi and since the Developer was carrying on business in Delhi, the trial court had no territorial jurisdiction to pass the decree in terms of the Award. Aggrieved by the said decision of the trial court, the Respondent-Developer moved the Delhi High Court by way of Civil Revision Application, whereupon High Court held that Delhi High Court was not a competent court as the parties had chosen to confer exclusive jurisdiction upon the Faridabad Court. Thus, High Court allowed the Revision Application holding that the trial court at Faridabad had jurisdiction to entertain and try application under Section 14 of Arbitration Act. Hence, present civil appeal. Held, the parties had entered into the contract wherein they had agreed to refer all disputes to an arbitrator at Faridabad and they had agreed that the Faridabad court alone shall have jurisdiction. Therefore, in our view, the High Court was right in holding that the Faridabad court had jurisdiction to make the Award the rule of the court. Hence the Civil appeal is dismissed

• Food Corporation of India and Anr. Vs. Ram Kesh Yadav and Anr.

The appellant FCI introduced a scheme for granting compassionate appointment to dependants of departmental workers, who died while in service or who were retired by FCI on medical grounds or who sought voluntary retirement on medical grounds at their own request, subject to certain conditions. Accordingly, the scheme designated the Senior Regional Manager/Regional Manager as the competent authority and made it clear that compassionate appointment is discretionary. Second Respondent, Departmental worker, made an application seeking compassionate appointment to his son, the first respondent, upon his voluntary retirement on medical grounds. The Regional Office rejected the said request for compassionate appointment on the ground that second respondent was aged 55 years 2 months and 20 days as on the date of his application as against the maximum age of 55 years prescribed under the scheme. Accordingly, respondents filed a suit for quashing said order and seeking a direction to FCI to appoint the first respondent. Learned Single Judge accepted the contention of the appellant FCI and held that the first respondent was not entitled to compassionate appointment, as the second respondent had already completed the age of 55 years when he made the application. Consequently, the writ petition was rejected. Thereafter, an appeal was filed by the respondents against the said order. Same was allowed by a Division Bench of the High Court. The Division Bench was of the view that once FCI accepted the request of an employee for retirement on medical grounds under the compassionate appointment scheme, it was obliged to give appointment to the dependant of such employee and his request cannot be turned down on any technical ground. Hence, present appeal. Held, it was pointed out that under the scheme the competent authority had the discretion to deny compassionate appointment even if all the conditions were fulfilled and that the High Court ought to have merely directed consideration of the application for compassionate appointment, instead of directing appointment. But the denial of employment was not on the ground that the competent authority found that it was not a fit case for appointment on compassionate grounds. It is true that in the normal course, if the employee's son was found eligible for employment on compassionate grounds, the court ought to have directed consideration of his case in terms of the scheme instead of issuing a mandamus to give employment. But as already observed, the conditional offer having been accepted, FCI could not thereafter refuse appointment. We also find that FCI did not dispute the fact that the first respondent was eligible and suitable for the post of handling labour. Nor did FCI contend that there was no vacancy. The employee had retired in 2000. For nearly 7 years, his son has been denied employment. On the peculiar facts, we do not find it appropriate to interfere with the direction given by the High Court to appoint the first respondent. Appeal is dismissed.

High Courts

Bombay

• The State of Maharashtra Vs. Krishna M. Tare and Ors.

Complainant was alleged to have witnessed accused assaulting deceased, as a result of which deceased succumbed to death. A complaint was thereafter registered and accused were charge sheeted. Learned Sessions Judge acquitted all accused holding that prosecution failed to prove that accused formed an unlawful assembly and with common object of assembly committed murder of deceased. Hence, present appeal. Held, as testimony of prosecution witnesses is doubtful in nature, giving room for possible views, testimony of prosecution witnesses, in facts and circumstances of case, is rightly disbelieved. View as taken cannot be said to be unreasonable or perverse. There is no case made out to interfere with Order of acquittal passed by Judge. Appeal is dismissed.

Gujarat

• Manoj H Mishra Vs. Union Of India and Ors.

Petitioner working with Nuclear Power Corporation was suspended from services by respondent authority for committing breach of oath of secrecy in service. Disciplinary proceedings were initiated and an inquiry officer was appointed to investigate the matter. Allegedly, respondent no. 2 gave an assurance to petitioner that if accepts the charges levelled against him, a lenient view would be taken on the matter. Accordingly, petitioner accepted all charges levelled against him and inquiry officer submitted inquiry report based on petitioner’s submission. Thereafter, Disciplinary Authority passed an order holding petitioner guilty of charges levelled against him and terminated him from service. Petitioner then preferred an appeal before respondent No. 4 which came to be rejected wherein another representation was preferred before the Revisional Authority which also came to be dismissed. Hence, present Special Civil Application. Held, it is observed by Hon'ble Supreme Court that High Court exercising power of judicial review under Article 226 of Constitution does not act as an Appellate Authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Scope of judicial review is limited to deficiency in decision making process and not the decision. Court should not interfere with administrator's decision unless it is illogical or suffers from procedural impropriety or is shocking to conscience of Court, in the sense that it is in defiance of logic or moral standards. Unless punishment imposed by Disciplinary Authority or Appellate Authority shocks conscience of Court/tribunal, there is no scope for interference. When a Court feels that punishment is shockingly disproportionate, it must record reasons for coming to such a conclusion. Mere expression that punishment is shockingly disproportionate would not meet requirement of law. Therefore, in view of above and seriousness of charges admitted by petitioner and thereafter held proved against petitioner by Disciplinary Authority and when petitioner is removed from service, it cannot be said that there is any illegality committed by respondents and that looking to charges proved against petitioner, it cannot be said that order of removal is disproportionate to charges. Petition is dismissed.

• Nazmabegam Nazirbeg Mirza and Anr Vs. State Of Gujarat and Anr

Petitioners are husband and wife serving in the Gujarat Police Force. They were transferred from Ahmedabad to Vadodara by concerned authorities. Petitioners therefore, filed writ petition challenging their transfer citing domestic difficulties. Petitioners made representations regarding said matter to concerned authorities but their representation was rejected by concerned authority without assigning any cogent reasons. Hence, present petition. Held, law regarding interference of court in matters of transfer is no longer res-integra. Petitioners are both Police Constables and members of a disciplined and armed force. Although it may be true that transfer of an employee sometimes causes difficulties and dislocation of domestic setup of concerned employee, however, merely on that ground, order of transfer is not liable to be struck down. It is a settled position of law by a catena of judgments that unless an order of transfer is passed mala fide or in violation of Rules of service or guidelines for transfer or without any reasonable justification or in a colourable exercise of power, Courts or Tribunals should not interfere with such an order of transfer. Transfer is an incidence of service and it is not for Courts or Tribunals to direct concerned executive authorities to transfer a particular person to a particular place or to restrain them from doing so. Writ petition is dismissed.

Insurance Regulatory and Development Authority

• Guidelines on Anti-Money Laundering Programme for Insurers

Circular No. 057/IRDA/AML/MAR-07 Dated 02.03.2007: IRDA vide its Guidelines on Anti-Money Laundering Programme, which became effective from 1st August 2006, made collection of photograph on all new insurance contracts mandatory. Accordingly, IRDA notifies that it has received representation from the Life insurance companies and Life Insurance Council that the compliance with the requirement is proving difficult apart from adding to the costs, especially in case of low value products. The matter has been examined by the Authority in the specific context of hardships in complying with this KYC requirement by small value policyholders with possible implication for the spread of insurance into rural and low-income domains, especially the micro insurance sector. Therefore, vide the present circular IRDA notifies that the Authority has decided to provide exemption upto a total Annual Premiumof Rs.10000/-on all the life insurance policies held by a single individual from the requirement of recent photograph and proof of residence.

• Misleading Sales literature on Unit Linked Product

Press Release Dated 02.03.2007: Vide the present press release, the IRDA makes it known that it has come to the notice of the Authority that some of the Development Officers and Agents of Life Insurance Corporation of India are promoting their Unit linked Insurance Product ‘Money Plus’ claiming to offer astronomical returns and guaranteed benefits at the end of specific periods. Some of the leaflets assure a maturity value of Rs 3.38 crores at the end of 20 years on an annual investment of Rs 1 lakh over a period of three years projecting a growth of 25% per annum. Similar claims have also been made by agents of a few other insurers. Therefore, vide the present press release, the Authority clarifies that such projections are misleading, inflated and also do not have the approval of the IRDA. As per the guidelines of the Life Insurance Council, the Insurers are required to project their returns at a rate ranging between 6% and 10% only. The insurers are also expected to state that even these returns are not guaranteed. It may also be noted that the returns under the Unit Linked Products are dependent on the performance of the chosen fund, which is in turn affected by the performance of the stock markets.

RBI

DBOD

• Exclusion from the Second Schedule to the Reserve Bank of India Act,1934 - The United Western Bank Ltd

Circular No. DBOD. Ret. BC No. 67/12.06.051/2006-07 Dated 07.03.2007: The Reserve Bank of India vide the present circular notifies that the name of The United Western Bank Ltd has been excluded from the Second Schedule to the Reserve Bank of India Act, 1934. The same has been effective from November 25, 2006, i.e. the date on which the relative notification DBOD. No. PSBD. 4146/16.01.076 /2006-07 dated November 3, 2006 was published in the Gazette of India (Part III - Section 4).

SEBI

• Corporate Bond Market – Reporting Platform to also be set up by NSE

Circular No: SEBI/CBM/BOND/1/2007/01/03 Dated 01.03.2007: In order to implement the Union budget proposal on creation of a unified platform for trading of Corporate Bonds, SEBI vide circular No. SEBI/CFD/DIL/ BOND/1/2006/12/12 dated December 12, 2006 authorized Bombay Stock Exchange Limited (BSE) to set up and maintain a corporate bond reporting platform to capture all information related to trading in corporate bonds as accurately and as close to execution as possible. Accordingly, vide the present circular, SEBI notifies that it has now been decided that the National Stock Exchange of India Limited (NSE) may also set up and maintain a similar reporting platform for corporate bonds with immediate effect on terms and conditions laid out in the aforesaid SEBI circular. For the purpose, the following shall be implemented with immediate effect: Trades executed by the members of BSE or NSE shall be reported on the reporting platforms of their respective stock exchanges who would host such information on their websites. As regards Over the Counter (OTC) trades, the parties concerned shall have the freedom to report the deals on the platform of either BSE or NSE; BSE and NSE shall co-ordinate among themselves to ensure that the information reported with BSE and NSE is aggregated, checked for redundancy and disseminated on their websites in a homogenous manner; Information disseminated on the websites of BSE and NSE shall display the following essential data: Issuer Name, Maturity Date, Current Coupon, Last Price Traded, Last Amount Traded, Last Yield (annualized) Traded, Weighted Average Yield Price, Total Amount Traded and the Rating of the Bond and any other additional information as the stock exchanges think fit; Further, the following additional details shall be made available through a hyperlink: Ratings including the last change where possible, Call/ Put Option Dates, Record Date, Next Coupon Date, Step up Coupons, Day Count Convention, Floating Benchmark if applicable and the spread over the Benchmark and any other instrument specific material information and the Fixed Income Money Market and Derivatives Association of India (FIMMDA) which at present is bringing out a daily valuation report of all Central Government Securities, had proposed setting up of a reporting platform for corporate bonds and also to provide similar value added dissemination on Corporate Bonds. Till such time that FIMMDA sets up such a platform, it shall disseminate information made available on bond trading by the two exchanges with appropriate value addition. In this regard, BSE and NSE are directed to extend their co-operation to FIMMDA.

Cases

• San Francisco Baykeeper Vs. Cargill Salt Div

Plaintiff-San Francisco Baykeeper filed the present suit under the Clean Water Act, 33 U.S.C. § 1251 et seq. against defendant-salt maker Cargill Salt Division on ground that allegedly defendant-salt maker discharged pollutants into “waters of the United States” without a permit. Defendant-salt maker produces salt by evaporating water from the Bay in a series of ponds and the harvesting and refinement of the salt resulted in the production of waste residue that is heavily saline and contains other pollutants. The body of water into which Cargill allegedly discharged waste is a non-navigable, intrastate pond water of the State. The district court granted summary judgment in favor of Defendants on ground that the Pond qualifies as a “water of the United States” because it is adjacent to a protected water of the United States. Hence, present appeal. Summary judgement by trial court is reversed by US 9th Circuit Court of Appeals on ground that mere adjacency provides a basis for CWA coverage only when the relevant waterbody is a “wetland”.

• Resolution Performance Products, LLC Vs. Paper Allied Indus. Chemical & Energy Workers Int'l Union

Plaintiff-company, as part of its purchase of a subsidiary of Shell Oil Company, signed a collective bargaining agreement with the Defendant- Union which had had a longstanding relationship with Shell. After the purchase, plaintiff-company used only subcontractors and not Union members for maintenance work, contrary to Shell’s past practice. The Defendant Union complained that plaintiff-company should hire Union members for maintenance work. Upon arbitration, an award was granted in favour of Defendant Union. However, on trial Federal District Court vacated the award. Hence, present appeal. Held, decision vacating an arbitrator's award in favor of the union is reversed on ground that the arbitral award drew its essence from the collective bargaining agreement because the Defendant did not unambiguously permit purchaser to subcontract; and any delay in union's applying for a panel of arbitrators was properly found to have been caused by plaintiff's counsel. Therefore, matter is reversed and remanded.

• Petty Vs. County of Franklin, Ohio

The present suit was brought by plaintiff, a former inmate, who sustained serious injury to his jaw during a fight with other inmates under 42 U.S.C. Section 1983. The plaintiff alleged that the defendant county violated his Eighth Amendment rights by failing to protect him and by failing to provide him with adequate medical care. In particular, plaintiff claimed that the County’s delay in allowing him to undergo surgery, and its failure to provide him exclusively with a “soft” diet prior to the surgery, was the direct cause of his suffering further injury. The district court dismissed plaintiff’s claims. Hence, present appeal. Held, dismissal of plaintiff’s claims is affirmed on ground that two deputies who were properly dismissed from the suit had not been served within the requisite time and that plaintiff had ample time to discover their identities.

News

• Lawyers boycott courts in Pakistan to protest suspension of Chief Justice

Pakistani lawyers boycotted courts to protest suspension of Chief Justice Iftikhar Muhammad Chaudhry for unspecified misconduct. Allegedly, President Musharraf suspended the Chief Justice "after receiving numerous complaints and serious allegations for misconduct, misuse of authority and actions prejudicial to the dignity of the office of the Chief Justice of Pakistan." The reasons behind the allegations remain uncertain, although various private media outlets have recently accused the Chief Justice of nepotism. Chaudry assumed the position of Chief Justice in 2005, and has developed a reputation for being willing to investigate alleged government abuses involving the illegal detention of political activists.

• YouTube ban lifted by Turkish Courts

A Turkish court on lifted a ban on YouTube two days after the court banned the popular video-sharing website. The court had ordered telecom providers in the country to block access because of videos allegedly insulting the founder of modern Turkey, Mustafa Kemal Ataturk. It is unclear why the court lifted the ban. The controversial videos caused an uproar among Turks and led to prosecutors recommending the website be banned. During the past week, the country's media has been reporting a "virtual war" on YouTube between Turkey and Greece, in which citizens of both countries have been creating videos to mock the other.

• Human rights violations rampant in Cambodia: UN report

The Cambodian government uses systematic human rights and civil liberty violations to maintain its hold on power, according to a report by UN special rights representative. The report listed illegal land grabs, torture while in police custody, corruption among senior government officials, and a steadfast government opposition to democracy among other violations. Cambodian officials angrily denied UN special representative's allegations, accusing him of being an outsider speaking about things he did not understand. Cambodian government human rights advisor said it would not be appropriate to respond to the accusations, which he insisted were not based on fact.

• Immigration officials ordered by Federal Judge to let sweatshop detainees see lawyers

An US District Judge ordered US immigration officials on Friday to provide detainees from a New Bedford, Massachusetts sweatshop access to lawyers and not to move them out of state. The Judge also told the State Department of Social Services and the US Immigration and Customs Enforcement agency to find a solution to the problem of mothers or primary caregivers who have been separated from their children and detained. The US Department of Homeland Security detained more than 300 people for possible deportation as illegal immigrants after a raid at Michael Bianco Inc., a leather factory that makes equipment for the US military. The Massachusetts Governor asked federal authorities to stop flights carrying workers to a deportation holding facility in Texas until the workers' children could be accounted for. Immigration agents released 60 people who said they were the sole caregivers for their children.