[No.196]

Supreme Court

• Post Master General, Kolkata and Ors. v. Tutu Das (Dutta)

Respondent had been working as a substitute to a regular EDA and allegedly had completed a period of 240 days in one year prior to 7.5.1985. Thereafter, a circular was issued by government stating that irregular substitutes who had been working as such prior to 7.5.1985 may be considered for appointment as EDAs in vacant posts provided they were found eligible in all other respects. Respondent filed an original application before the Central Administrative Tribunal claiming absorption to said post which ruled in her favour. Appellant then filed writ petition against same but same was dismissed. Hence, present appeal. Whether respondent can be allowed regularization of services? Held, Tribunal did not come to a definite finding that respondent had completed 240 days in an year as a substituted EDA prior to issuance of said circular letter. In B.N. Nagarajan v. State of Karnataka SC Court clearly held that the words "regular" or "regularisation" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. Court emphasised that when rules framed under Article 309 of the Constitution are in force, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. Therefore, only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised and that it alone can be regularised and granting permanence of employment is a totally different concept and cannot be equated with regularization. Appeal is allowed.

• Institute of Chartered Financial Analysts of India and Ors. v. Council of the Institute of Chartered Accountants of India and Ors.

Appellant-institute offered the Chartered Financial Analyst Course/Programme, which is entirely different from the course offered by Respondent No. 1. However, respondent institute issued a notification stating that any member of the respondent-institute who obtained the qualification of appellant institute must surrender said qualification before stipulated date and those who did not surrender same before said date, would be held to be guilty of professional misconduct in term of provisions of Chartered Accountants Act, 1949. A writ petition was filed before High Court by Appellant No. 1 against same but same was dismissed. Again the writ appeal filed against was dismissed by Division Bench of High Court holding that restriction imposed by respondent institute on its members cannot be said to be unreasonable. Hence, present appeal. Whether by reason of a notification, acquisition of a qualification itself can be prohibited? Held, Respondent-Institute is constituted under a parliamentary act. It is governed by the provisions thereof as also the rules and regulations framed thereunder. And therefore being a statutory authority it must confine its activities within the four-corners of the statute. Section 7 of Act debars a person from using a qualification; it does not prohibit him from acquiring a qualification. If, therefore, any member of the Institute intends to acquire a qualification, the same being an inherent and human right cannot be a subject-matter of prohibition until and unless there exists any statutory interdict therefore. The explanatory statement appended to the notification does not state that the same had been issued for the purposes sought to be achieved by Section 7 of the Act. Even otherwise it is impermissible. What is a professional misconduct has been defined. The statutory authority, therefore, cannot transgress its authority that acquisition of a qualification by a member of the Institute shall itself constitute a misconduct. Therefore, appeal is allowed.

High Courts

Bombay

• M/s R.K. Patel & Co., Tobacco Manufacturers, and Ors V. Shri Rajdhar Kalu Patil @ Patel, and Ors.

Plaintiffs-respondents proprietors of registered trademark in question filed suit against defendant-appellants for passing off and infringement of trademark. Learned trial judge granted temporary injunction in favour of plaintiffs holding that from evidence on record plaintiffs had made out a prima facie case. The principle of balance of convenience was also found tilted in favour of plaintiffs. Hence, present appeal by defendant-appellants. Whether plaintiff is entitled to temporary injunction. Held, perusal of wrappers also shows that entire colour scheme, design, wording, its placement on wrapper is exactly same as that of plaintiff no. 2. Ordinary customers are, therefore, impressed to believe that they are purchasing products of manufacturers which are one and same. Imitation is so calculated that it may appear to be only a printing error between words "Ashok" and "Ashik" in fact and in reality it is not an error but a well-designed and well calculated strategy thought of by defendant No. 1. A man of average intelligence with imperfect recollection is bound to be deceived, in a given case even an intelligent person is also likely to be mislead and may fall pray to passing off the goods of defendants as if they are the goods of the plaintiff. It must be remembered that an infringement action is available where there is violation of specific property right acquired under and recognised by statute. In a passing-off action, however, plaintiffs right is independent of such a statutory right to a trade mark and is against conduct of defendant which leads to or is intended or calculated to lead to deception. Passing-off is said to be a species of unfair trade and competition or of actionable unfair trading by which one person, through deception, attempts to obtain an economic benefit of reputation which another has established for himself in a particular trade or business. The action is regarded an action for deceit. The tort of passing-off involves a misrepresentation made by a trader to his prospective customers calculated to injure, as a reasonably foreseeable consequence, business or good-will of another which actually or probably, causes damages to business or good of other trader. In view of this legal position applicable to present set of facts, there is no doubt whatsoever that plaintiffs are entitled to the relief of temporary injunction and learned trial Judge has rightly allowed application.

Delhi

• Dharampal Premchand Ltd. V. Golden Tabacoo Products

Plaintiff filed a suit for infringement of its trademark “Baba” and for breach of its copyright and for passing off by defendant. Defendant had adopted a deceptively similar trademark as that of plaintiff called “Babu”. Learned Single Judge however returned the plaint stating that the court does not have jurisdiction to decide relief of passing off and that it has territorial jurisdiction only to deal with copyright and trademark infringement even though the plaintiff had filed an application for amendment of plaint to segregate reliefs prayed for in plaint and to present matter concerning relief of passing off before appropriate court. Hence, present appeal. Whether order of Single Judge rejecting the entire plaint is valid in view of the fact that plaintiff had filed application for segregation of reliefs prayed for in plaint. Held, the Division Bench of Delhi High Court in State Bank of India v. Sanjeev Malik reported in AIR 1996 DELHI 284 had held that where a plaint is filed in a Court not having jurisdiction to try all the different causes of action, but the Court is of the opinion that it can deal with only one or some of the causes of action set out in the plaint, then it ought to retain the lis and strike off from the plaint that part which it holds is beyond its jurisdiction. The result would be that the plaintiff could file another suit in the proper Court pertaining to the cause of action not entertained by that Court. It has categorically been stated that the entire plaint cannot be returned if the Court has jurisdiction in regard to a part thereof. We are in respectful agreement with this enunciation of the law. Therefore, appeal is allowed.

• PFIZER INC. V. PIFER Pharmaceuticals Pvt. Ltd.

Plaintiff filed suit against defendant for passing off and to restrain defendant from using tradenames “PIFER, PIFOL or PIFSER” or any other trademark that is deceptively similar to plaintiff’s trademark “PFIZER” with regard to pharmaceutical products. It was categorically admitted by plaintiff in the plaint that it came to know of defendant’s pharmaceutical business only recently and had filed the suit. However, defendant contested same holding that plaintiff had knowledge about defendant’s pharmaceutical business way back in 1994 and had suppressed relevant material fact to secure an ex-parte order in its favour. Hence, present application filed by plaintiff seeking amendment of plaint. Whether plaintiff’s application seeking amendment of plaint can be allowed? Held, amendment should not work injustice to other side. If injury to other side can be compensated by costs then it is not treated as injustice — Amendment should be allowed to avoid multiplicity of proceedings as far as possible. Amendments that are impliedly or expressly prohibited by law  or deprive other party a valuable right accrued to them should not be allowed. By proposed amendment plaintiff wants to completely withdraw his plea that in 2005 it was brought to his attention that defendant is using deceptively and confusingly similar trademark and name of plaintiff. After defendant filed written statement categorically denying that defendant has come to know in 2005, a right has accrued to defendant, which plaintiff wants to take away by completely withdrawing said plea. Applying principles enunciated in precedents it is apparent that amendments as has been sought by plaintiff should not be permitted in facts and circumstances of case because injury which will be caused to defendant will not be capable of being compensated by way of cost. Therefore, amendment sought by plaintiff is not permitted.

Press Information Bureau

• Withdrawal of Private Universities (Establishment and Regulations) Bill, 1995

PIB Dated 31.05.2007: The Union Cabinet today gave its approval for withdrawal of the Private Universities (Establishment and Regulations) Bill, 1995 from the Rajya Sabha. The Bill has been pending since 1995. It will be removed from the list of pending bills, as the UGC Regulations, 2003 were upheld by the Supreme Court and the same adequately addresses the concern regarding mushrooming of private universities and also takes care of the Centre's obligation in regard to the coordination and maintenance of standards of higher education.

• Wage Board for Working and Non-Working Journalists Constituted

PIB Dated 29.05.2007: Notifications have been issued by the Government constituting the Wage Boards for Working Journalists and Non-working Journalists of newspapers and news agencies w.e.f.24th May, 2007. These Wage Boards have been constituted for the purpose of fixing or revising rates of wages of working journalists and newspaper employees and non-journalists newspapers employees in accordance with the provisions of the Working Journalists and Other Newspaper Employees (Conditions of service) and Miscellaneous Provisions Act, 1955. The headquarters of the Wage Board will be New Delhi. The Boards have been asked to submit their reports within the stipulated period of 3 years.

• Filing of Form 16 By Tax Payers not Required for Claiming Refunds

PIB Dated 28.05.2007: By the present press release, the Government clarifies that Rule 12 of the Income Tax Rules has been amended so as to notify the new income tax return forms for assessment Year 2007-08 with effect from 14th May 2007. These new return forms (other then new Form ITR-7 for charitable/religious trusts and institutions) are annexure-less. Accordingly, a taxpayer is not required to file any document relating to computation of income or challans or TDS certificates (Form 16 or form 16A) or TCS certificates along with these annexure-less returns, irrespective of whether a refund is claimed or not. The taxpayers are advised to strictly follow the instruction annexed with the new return forms and Rule 12 of the Income Tax Rules.

RBI

Press Release

• Revised Reporting System for Direct Investment Overseas by Indian Residents

RBI Press Release No. 2006-07/1658 Dated 01.06.2007: The Reserve Bank of India has put in place with immediate effect, a revised reporting framework on overseas investments. The key features of the reporting system are a single application cum reporting format replaces the existing six formats; a comprehensive coverage on the costs of acquisition overseas and the methods of financing forms part of the data; simplified Annual Performance Reporting i.e. submission of financial statements has been dispensed with and a new format to capture disinvestments / liquidation, etc. has been introduced.Further, online reporting will be introduced once the system stabilises and the accuracy and timeliness of submission improves.

• Government of Haryana signs MoU with RBI

RBI Press Release No. 2006-2007/1650 Dated 01.06.2007: The Government of Haryana and the Reserve Bank of India has, on June 1, 2007 signed a Memorandum of Understanding with regard to urban co-operative banks in the State of Haryana. Consequent to this, a State level Task Force on Urban Co-operative Banks (TAFCUB) has been constituted for Haryana. As part of its developmental role, the Reserve Bank would also be assessing the training, computerization needs of the Urban Co-operative Banks in the State of Haryana with the objective of upgrading their human resources skills and technological infrastructure so that they improve their operational efficiency and quality of management information systems.

Cases

• In re Marriage of Tavares

Appellant father and respondent mother filed for divorce and mother obtained full custody of the child. The family court also ruled that father must pay child support for a stipulated amount for a specific period. After the specific period appellant father was granted child visitation and his child support obligation was reduced. Thereafter disputes regarding child support and visitation arose between parties as a result of which they approached family court again and the family court terminated father’s visitation and asked appellant father to clear dues of child support. On appeal, superior court ordered resumption of father’s visits with increased child support payment. Appellant father appeals from the trial court's order determining his child support arrears for his son, who is now 16. Appellant-father contends that the trial court should have modified his arrears to account for periods respondent mother allegedly concealed the boy and/or incurred no childcare expenses. Held, alleged concealment, even if true, is not an obstacle to collection of arrears because the overdue payments will still benefit the child during his minority, when he is entitled to his father's support. A parent who has skipped the opportunity to modify a support order may not undermine accrued arrears by later contesting expenses. Therefore, father's equal protection and due process claims of statutory, institutional, and procedural bias against child support obligors are rejected and order of trial court affirmed.

• William Erickson v. Barry J. Pardus et al.

Petitioner was imprisoned by the State of Colorado. He alleged violations of his Eighth and Fourteenth Amendment protections against cruel and unusual punishment and filed suit against prison officials in the United States District Court for the District of Colorado. He alleged that a liver condition resulting from hepatitis C required a treatment program that officials had commenced but then wrongfully terminated, with life-threatening consequences. Deeming these allegations to be "conclusory," the Court of Appeals for the Tenth Circuit affirmed the District Court's dismissal of petitioner's complaint. Court of Appeals held that petitioner was not able to show that as a result of the discontinuance of the treatment itself shortly after it began or the interruption of treatment for approximately eighteen months he suffered any harm, let alone substantial harm, other than what he already faced from the Hepatitis C itself. Hence, present appeal. Held, the Court of Appeals holding departs in so stark a manner from the pleading standard mandated by the Federal Rules of Civil Procedure. Therefore, review is granted. Judgement of lower court is vacated and case is remanded for further consideration.

News

• Pakistan police file complaint against journalists protesting media controls

Pakistani police issued a "preliminary complaint" against approximately 200 journalists, opposition party members and pro-democracy activists who demonstrated outside the Pakistan parliament building protesting an emergency media ordinance in defiance of a government ban on unauthorized rallies issued late last week by Pakistani President Pervez Musharraf . The ordinance gave the Pakistan Electronic Media Regulatory Authority (PMRA) authority to suspend broadcasting licenses of radio and television stations found to violate the law and allowed authorities to physically seal the stations' facilities and increases the fines for violations from $16,665 to $166,650. 

Also, opposition members and police officials confirmed the detention of more than 60 activists so as to prevent alleged "law-and-order problems." Media outlets have complained of growing government pressure not to provide live coverage of rallies in support of suspended Chief Justice Iftikhar Muhammad Chaudhry. Many Pakistani lawyers and opposition leaders believe Chaudhry's suspension to be an assault on the independence of the country's judiciary and an indirect bid by Musharraf to continue his eight-year rule in an election year.

• Thailand interim government ends ban on political activities

Thailand's interim-government lifted a ban on political activities that had been in place since the 2006 bloodless coup, which will allow the dissolved political party Thai Rak Thai (TRT) to reform. The ban, which was lifted by Prime Minister and his cabinet, will have to be backed by legislation passed in the National Assembly of Thailand that will resume the registration of new political parties. Thailand's Council of State, which considers and prepares draft legislation, is expected to present a proposal to the cabinet and national assembly next week.

• Judge extends block on Dallas suburb immigrant rental ordinance

A US federal judge extended a temporary restraining order blocking the Texas town of Farmers Branch, a suburb of Dallas, from enforcing a law that would bar landlords from renting apartments to most illegal immigrants. The restraining order will be in effect until June 19, when Judge plans to rule on whether the ordinance can be enforced while legal challenges are underway. The city ordinance requires apartment renters to show proof of US residency and penalizes landlords who rent to illegal immigrants. Landlords who do not comply with the law will face fines up to $500. The ordinance does not require minors and tenants who are 62 years of age and older to prove their immigration status, and allows lease renewals if the renters are currently tenants, the head of household or spouse is in the US legally, and the family includes only the spouse, their minor children or parents. The ordinance was approved by voters, but the judge first issued a temporary restraining order the day before the law was set to take effect.

• Germany court upholds teacher headscarf ban

A German state court upheld a ban on religious headscarves in public schools and affirmed the right of a school not to employ a teacher who said she would be unable to follow that law. The teacher argued the law was discriminatory and violated religious freedom. In upholding the law and finding the headscarf to be a sign of religious belief, the North Rhine-Westphalia court said that the ban ensured state neutrality toward the religions of students and parents.

Numerous German states, as well as various countries around Europe, have considered headscarf bans over the last several years. Last July, a court in the German state of Baden-Wuerttember threw out a 2004 ban, ruling it was being applied in a discriminatory manner to Muslim women but not Catholic nuns. In January, the Constitutional Court of the German state of Bavaria upheld a headscarf ban there.

• Nine charged in US for plot to overthrow Laos government

Nine suspects were arrested and charged in the US Eastern District of California for allegedly plotting the violent overthrow of the Laotian government. The criminal complaint alleges that the defendants sought to acquire "hundreds of AK-47 automatic rifles, Stinger missiles, AT-4 anti-tank missiles" and other munitions to support a "Hmong insurgency." All nine defendants face a maximum of life in imprisonment plus 38 years. Six defendants face an additional minimum sentence of 25 years to life and a maximum sentence of life imprisonment for conspiring to "receive and possess the Stinger missiles."