[No.211]

Supreme Court

• Prabir Banerjee v. Union of India (UOI) and Ors

The Writ Petitioner had approached the Tribunal for quashing of the Order of transfer by which he was transferred from Indore to Nagpur. The challenge to the Order of transfer was made on the ground that inter-zonal transfer was prohibited in the Department of Central Excise and Customs and hence the impugned transfer order was void and was liable to be quashed. The Tribunal dismissed the application filed by the Petitioner. On appeal, the High Court held that the Writ Petitioner would only be entitled to make a representation to the Competent Authority regarding the Order of transfer. Hence, the present appeal. Held, while transfer is an incident of service under the Central Service Rules, the Petitioner has no cause to complain in respect of the transfer order by which he was transferred from the Bhopal zone to the Nagpur zone, as the same had been passed by the Chief Commissioner of Central Excise, Bhopal zone, under powers vested in him by the Board by its Circular dated 16.1.2003.

• U.P. Co-op Spg. Mills Federation Limited and Anr. v. Ram Pratap Yadav and Ors

The Respondent was appointed as Secretary/General Manager of the Mau-Aima Sarkari Katai Mills Limited at Mau-Aima in Allahabad by the U.P. Co-operative Spinning Mills Federation Limited, which is the apex body of various Co- operative Spinning Mills in the State of Uttar Pradesh. On the basis of his findings, the Disciplinary Authority removed the Respondent from the service. The Order of removal was challenged by the Respondent before the Appellate Authority after three years and same was dismissed. On appeal, the High Court allowed the Writ Petition and quashed the Order of removal from service. Appellant contended that the High Court had wrongly proceeded on the basis that the services of the Respondent was governed by the U.P. Co-operative Societies Employees Service Regulations, 1975. Respondent contended that Regulation 87 made it incumbent for the concerned co-operative societies to impose major penalty only with prior concurrence of the U.P. Co-operative Institutions Service Board and since the Federation had not obtained the prior concurrence of the Board, dismissal imposed on the Respondent was void and was liable to be quashed. Notification dated 16th October, 1981, issued by the State Government made it clear that co- operative textile mills were to be excluded from the purview of 1975 Regulations. Subsequent resolution adopted by the Federation made the position clear by resolving that till the Federation was able to frame its own service Rules, the Rules prevailing in the U.P. State Textile Corporation were to be adopted as they were. Held, the service of the Respondent was not governed by 1975 Regulations but by the Rules of the U.P. State Textile Limited. Further, spinning mills would also come under the description of textile mills. Therefore, impugned order set aside. Appeal allowed

High Courts

Delhi

• D.T.C. v. Presiding Officer and Anr.

Respondent-workman working as a conductor with Petitioner; Respondent remained absent from duty without intimation for a continuous period of 178 days. Petitioner issued charge sheet stating that absence from duty for 178 days without intimation amounted to misconduct within the meaning of para 19(h) and (m) of the Standing Order. Inquiry was held and report submitted by Inquiry Officer. Pursuant thereto-Disciplinary Authority removed the Respondent-workman from service. On the same day, Petitioner-management moved an approval application under Section 33(2)(b) of Industrial Disputes Act before Industrial Tribunal which was rejected on the ground that no misconduct was committed by workman and hence, Petitioner was not entitled to remove the Respondent-workman from service as the workman submitted leave application which was treated as leave without pay by Petitioner and hence, there was no unauthorized absence from duty and the authorities could not have charge-sheeted the Respondent-workman. Contention of Petitioner/management was that mere submission of leave application was not sufficient unless the same was sanctioned by competent authority. Held, as per decision of Apex Court in Sardar Singh it can no longer be said that once the period of absence treated as period of leave without pay or any other kind of leave, then the unauthorized absence does not remain misconduct. Treating the absence of the Respondent- workman as leave without pay, cannot be equated with sanctioned and/or approved leave so as to exonerate an employee of charges of misconduct. Impugned order is set aside. Petition is allowed.

• Essar Steel Limited and Anr. v. UOI

Petitioners engaged in the manufacture and production of steel and steel products. Petitioners made application in April 2002 before the Designated Authority urging that certain countries dumping their products in India and causing injury to the domestic industry thereby seeking imposition of anti-dumping duties in respect of imports from these countries. Designated authority notified embassies of the subject countries about receipt of dumping allegation before proceeding to initiate the investigation. A public notice dated 25th September 2002 was also published in the Gazzette of India Extraordinary initiating the anti dumping investigations. Copies of the public notice were forwarded to exporters and importers for their views. Questionnaire sent to exporters under Rule 6(iv). Embassies requested under Rule 6(ii) to advise exporters to respond to questionnaire within prescribed time. On the basis of investigations conducted by the Designated Authority and the evidence placed before it by Petitioner, the Designated Authority vide impugned Order dated 27th August 2003 decided to terminate the investigation. Hence, the present petition assailing the impugned Order on factual as well as legal grounds. Held, applicable Rules postulate that the enquiry may be terminated unless the countries which individually count for less than three per cent of the imports of the like project, collectively count for more than seven per cent of the import of the like project. Authority is entitled to terminate the investigation if it determines that the injury where applicable is negligible. As per Sub-rule "b" of Rule 14, the Designated Authority may terminate the enquiry in the course of an investigation if there was no sufficient evidence of dumping, or injury to justify continuation of the investigation. Impugned order is not violative of principles of natural justice as Petitioners were given adequate opportunity to place entire material on record by designated authority. Petition is dismissed

Karnataka

• Hutchison Essar South Ltd., Bangalore v. Union Bank of India, Bangalore, rep. by Its Authorised Officer and Anr.

The second Respondent leased property to the Petitioner. First Respondent informed the Petitioner that on the failure of the second Respondent to clear the dues of the first Respondent, they had initiated enforcement measures under the Securitisation Act. Petitioner a third party unconnected with the transactions between the first Respondent and the second Respondent contended that the Petitioner was not amenable to the provisions of the Securitisation Act, further Petitioner was not a trespasser though lease deed was not registered. Hence, the present petition to quash the proceedings. Held, if the secured asset is in possession of the borrower or if he had inducted somebody to defeat the rights of the bankers, possession can be taken by the banks in accordance with the provisions contained in Sections 13 and 14 of Act. But if the secured asset is in the possession of a bonafide lessee or tenant, he cannot be thrown out by invoking Sections 13 and 14 of the Securitisation Act. If the banker or purchaser of the secured asset has to take the actual possession, the same has to be in accordance with the due process of law only. Till that time Bank can take only symbolic possession of said premises. Hence, Respondent No. 1 has to take appropriate legal proceedings to take actual possession of land. Petition is allowed.

RBI

• Reserve Bank Cancels Certificate of Registration of twelve Companies

Press Release No: 2007-2008/612 Dated 02.11.2007: The Reserve Bank of India has cancelled the certificate of registration granted to 12 companies namely M/s. Salechha Pratisthan Ltd, M/s. Golden Management Pvt. Ltd, M/s. J.G.Spinning Mills (P) Ltd, M/s. Sant Kumar Automotives Ltd, M/s. Trishakti Electronics & Industries Ltd, M/s. Saltlec Foods (P) Ltd, M/s. Shaktiman Vinimay Pvt. Ltd, M/s. M/s. Jyoti Builders Pvt. Ltd, M/s. Apex Enterprises (India) Ltd, M/s. Teacher's Welfare, M/s. Alpha Vincom Pvt. Ltd, M/s. Lancaster Trading Ltd as these companies have opted to exit from the business of a Non-Banking Financial Institution. Following cancellation of registration certificate, these companies cannot transact the business of a non-banking financial institution. However, the companies are under an obligation to repay deposits, if any, as per terms and conditions of the contract of deposits. Under powers conferred by Section 45-IA (6) of the Reserve Bank of India Act, 1934, the Reserve Bank can cancel the registration certificate of a non-banking financial company. The business of a non-banking financial institution is defined in clause (a) of Section 45-I of the Reserve Bank of India Act, 1934.

Telecom Regulatory Authority of India (TRAI)

• TRAI Issues Direction to M/s Idea Cellular Ltd. on Refund of the Charges for Value Added Service Provided through Tele-calling

Press Release No : 93/2007 Dated 30.10.2007: The Telecom Regulatory Authority of India (TRAI) directed M/s Idea Cellular Ltd. to refund to all consumers, within fifteen days, the charges levied for value added services marketed through tele-calling, where the consumers denied or disputed having given their consent for activation of value added services. The Authority had received a number of complaints from the subscribers of M/s Idea Cellular Ltd. regarding provision of value added services without consent. The service provider failed to submit any evidence as to what was the offer to the complainant based on which the complainants had consented to the service and also any evidence to show that the subscribers had given their explicit consent as most of the offers were reportedly made through tele-calling. The Authority is of the view that in the absence of satisfactory evidence of the offer made to the consumer through tele-calling and the consent obtained from the consumer, it cannot be concluded that the value added service was provided with the explicit consent of the consumers, particularly when the consumers have denied having given any such explicit consent.

SEBI

Mutual Fund

• Parking of Funds in Short Term Deposits of Scheduled Commercial Banks by Mutual Funds - Pending deployment

Circular No. SEBI/IMD/CIR No.8/107311/07 Dated 26.10.2007: SEBI vide circular no. SEBI/IMD/CIR No. 1/91171/07 dated April 16, 2007 had issued guidelines for Parking of Funds in Short Term Deposits of Scheduled Commercial Banks - Pending deployment. With regard to clause 1 of the aforesaid circular it is clarified, through the present circular, that the tenure of the term deposits placed as margin for trading in derivatives shall not exceed 182 days. This circular is issued in exercise of powers conferred under Section 11 (1) of the Securities and Exchange Board of India Act, 1992, read with the provisions of Regulation 77 of SEBI (Mutual Funds) Regulations, 1996, to protect the interests of investors in securities and to promote the development of, and to regulate the securities market.

SMD

Proof of Identity (POI) and Proof of Address (POA) for Opening a Beneficiary Owner (BO) Account for Non-body Corporates.

Circular No. : MRD/DoP/Dep/Cir-12/2007 Dated 07.09.2007: SEBI vide circular No. MRD/DoP/Cir-08/2007 dated June 25, 2007 has discontinued with the requirement of Unique Identification Number (UIN) under the SEBI (Central Database of market Participants Regulations), 2005 (MAPIN Regulations)/circulars. Therefore, in the light of the above, the Depositories are advised to discontinue with the practice of accepting 'MAPIN card' as one of the documents for the purpose of 'Proof of Identity'(PoI) while opening a Beneficial Owner (BO) account. Accordingly, the Depositories are advised to make amendments to the relevant bye-laws, rules and regulations for the implementation of the above decision immediately as may be applicable/necessary; bring the provisions of this circular to the notice of the Depository Participants of the Depository and to disseminate the same on their website as well as monitor compliance by DPs and to communicate to SEBI the status of the implementation of the provisions of this circular.

Cases

• Stewart v. State of Texas

In the present case, appellant a police officer returned a "bud" of marijuana that was confiscated during a search to an individual who agreed to be a confidential police informant on the matter but did not end up being one. The appellant police officer was then convicted for this conduct on ground that appellant knowingly tampered with physical evidence in the case. Hence, present suit. Held, it is not enough that appellant knew that his action would impair the availability of the marihuana as evidence. He must have intended to impair its availability. That is, impairing the marihuana's availability as evidence must have been appellant's conscious objective or desire. The court of appeals erred in analyzing the sufficiency of the evidence for the culpable mental state of knowledge when the statute proscribes the higher culpable mental state of intent. Moreover, the evidence appears to be legally insufficient to show that appellant had the conscious objective or desire to impair the availability of the marihuana as evidence. The missing marihuana bud would not have changed the category of the offense, and the remaining marihuana was certainly enough to convict the "would be informant", if the State was interested in pursuing a prosecution. Therefore, judgement of lower court is reversed and a judgment of acquittal is rendered on the basis of legally insufficient evidence.

• Shaw v. State of Texas

The appellant was charged with intentionally, knowingly, or recklessly causing injury to a child. The jury convicted her of causing the injury recklessly. On appeal she complained that the trial court erred in failing to instruct the jury on the so-called "Good Samaritan" defense. The court of appeals held that the trial court did not err in refusing to submit the instruction. Hence, present appeal. Held, the court of appeals applied the correct legal standard in determining whether the evidence "raised" the "Good Samaritan" defense in this case. In order to obtain an instruction on the "Good Samaritan" defense embodied in Section 22.04(k) of the Penal Code, (1) the appellant must show that the record contains evidence sufficient to support a rational finding, not that she lacked the requisite mental state necessary to commit the offense, but that she in fact harbored the requisite mental state, but nevertheless engaged in the conduct under emergency circumstances, in good faith, and with reasonable care. Because the record contains insufficient evidence to establish the defense as so construed, judgment of the court of appeals is affirmed.

News

• Attempted airlift from Chad of alleged orphans violated international law: UNICEF

A top official with the United Nations Children's Fund (UNICEF) said that an unsuccessful bid by a French charity to fly 103 children out of Chad late last month violated international law. UNICEF Executive Director was quoted by Reuters as saying that it was "simply unacceptable to see children taken out of their home countries without complying with national and international laws" and that the airlift was "not consistent with international norms or practices or laws." Chadian authorities foiled an attempt by French group Zoe's Ark to fly the children - alleged to be orphans from Sudan's Darfur region - from Chad to Europe for anticipated placement with French families and arrested 17 people allegedly associated with the effort. Six French nationals have been charged with kidnapping and face five to 20 years in prison if convicted. Three members of a Barcelona-based flight crew, along with a Belgian pilot, were charged with complicity in the alleged kidnapping.

• Egypt court sentences 2 police officers for detainee torture

An Egyptian court sentenced two police officers to three years in prison for torturing a bus driver after video clips of the incident circulated on video-sharing website YouTube. Islam Nabih, a police captain, and Reda Fathi, a non-commissioned officer, sodomized and beat Emad el-Kabir in 2006 while videoing the incident on a cell phone. Egyptian bloggers posted the video on the Internet later that year before it appeared on YouTube. Police said el-Kabir had been detained for trying to stop an argument between a family member and police. He was released and later jailed for resisting arrest. El-Kabir's case marks the first in Egypt that involved a video clip on the Internet. Other videos of torture incidents have appeared on Egyptian blogs, and human rights activists hope the conviction of Habih and Fathi will set a precedent for future cases. In May, an Egyptian court sentenced a television reporter with Al Jazeera to six months in prison for producing a film that depicted police torture. Egyptian authorities said the footage was a reenactment of actual scenes of torture by actors. Human rights groups maintain that torture is commonplace in Egyptian police stations, but Egyptian authorities have denied the allegations.

• More Pakistan bar leaders arrested under emergency but Chaudhry defiant

Pakistani security services pressed ahead with arrests of leading lawyers across Pakistan as the government sought to suppress dissent against declaration of emergency rule by President Pervez Musharraf. In addition to hundreds arrested after riot police clashed with lawyers at the Lahore High Court, at least 25 lawyers in Karachi - including the president of the Karachi Bar Association - were arrested after an anti-emergency demonstration there. Some 41 lawyers were arrested in Rawalpindi, again including the head of the local bar association. More lawyers were arrested in demonstrations and house raids in other cities. Dismissed Pakistan Chief Justice Iftikhar Chaudhry told in his first public statement since being put under effective house arrest that despite the wave of detentions he was confident that the rule of law in Pakistan would be restored. He called Musharraf's Provisional Constitution Order purporting to suspend the country's constitution "illegal" and against the direction of the Supreme Court, which under his leadership had issued an order blocking the emergency measures while its building was blockaded by troops and police.

• Alian opposition calls for expulsion of Romanians suspected of violent crimes

Italian opposition leader urged Italy to ban Romanian workers from entering Italy, while conservative ally suggested that Italy should expel 20,000 Romanian workers in response to a wave of violent crimes blamed on foreigners. Romanian workers have been detained in several recent crimes, and statisticians say foreigners commit a disproportionate number of violent crimes in Italy. Romanians entered Italy en mass looking for jobs following Romania's entrance into the European Union earlier this year. Last week, the Italian Cabinet gave authorities the power to expel EU citizens with criminal records or people deemed dangerous to public safety, and Italian authorities have already begun deporting Romanians. Parliament still must approve the measure, and moderate Prime Minister Romano Prodi has a narrow majority to defeat the measure. Romania's government has already warned Italy that their actions could lead to widespread xenophobia in Italy, but the European Union has said the plan does not violate EU law.