[No.218]

Supreme Court

• Mathania Fabrics v. Commissioner of Central Excise, Jaipur

The appellants were engaged in the processing of cotton fabrics falling under Chapter 52. They claimed to be undertaking the processes of bleaching, mercerising, dyeing, printing, washing, drying and finishing before the fabrics were packed and cleared. Held, in any event it was submitted that when the position in law was not clear and the authorities had to issue clarification, Section 11A of Act cannot be invoked. Tribunal after referring to the definition of manufacture under Section 2(f) of the Act held, that the use of power in the operation of stirrer and electric motor for lifting water and caustic soda would amount to manufacture with the aid of power. Therefore, factually the stand that there was no use of power is unsustainable. Coming to the period of limitation the five years period has to be reckoned backward from 8th February 1989 when the show cause notice was issued. The Commissioner shall work out the liability and the penalty amount has to be equivalent to the amount of tax demand.

• State of Himachal Pradesh v. Paras Ram and Ors.

Respondents faced trial for alleged commission of offences punishable under Sections 436, 447, 427, 147 and 506 of the Indian Penal Code, 1860. The High Court found that there was some delay in lodging the FIR and though large number of people were claimed to have gathered at the spot, the witnesses could not have seen the accused persons. The High Court also found that there was some dispute between the parties and, therefore, the prosecution version was suspect. Accordingly, the accused persons were acquitted. The Appellant-State filed an application for grant of leave. High Court disposed of the application vide one line order "Dismissed", without assigning any reason for the same. Hence, the present appeal. Held: The manner in which appeal against acquittal has been dealt with by the High Court leaves much to be desired. Reasons introduce clarity in an Order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge.

High Courts

Bombay

• Shri P.R. Nair and Ors. v. Union of India and Anr.

Petitioners are workers in Medical college mess run by Central government but are appointed by Mess Committee, which comprises of students as its members and there is no prescribed procedure for the appointment. Hence they cannot be said to be government class IV employee. The Petitioners contend that since the college is run by central government and they have served for a very long time they must be extended the benefit of permanency in service. Held: Reference of a previous Judgment has been followed by the Apex Court in which contractual, temporary employees appointed de hors the rules were held not entitled to regularisation in service even after 14 years and despite the interim Order of the High Court. In this case the Petitioners have not been appointed for any sanctioned vacant post by the Government after following the rules of the Armed Forces otherwise applicable to the Central Government employees. The Petitioners, therefore, cannot be granted any relief.

• Vitthal Sahakari Sakhar v. Assistant Provident Fund Commissioner, Special Recovery Officer, Aurangabad, Gangapur Sahakari Sakhar, The Bank of India, Branch at Kurduwadi through Senior Manager

The Petitioners seek quashing of impugned Order of attachment as well as attachment warrant and consequent panchanama issued by Respondent No. 1, on the ground that it is violative of Article 19(1)(g) of the Constitution of India as well as the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 along with other consequential reliefs. Held: The agreement concerned is an agreement of conducting the business of manufacture of sugar on rental basis for a specific period and it clearly shows that no transfer of the establishment of Gangapur Sahakari Sakhar Karkhana to petitioner Sugar factory is contemplated by virtue of the said agreement. What is affected is an agreement for conducting business to manufacture sugar by crushing sugar-cane. The agreement amounts only to a licence to the petitioners to enter on the immovable property for a specific purpose, without creating either any lease, or any other incident of transfer contemplated under Section 17B of the said Act and, therefore, it must be said that the action between the petitioners and Respondent No. 2 under the impugned agreement cannot be considered as "transfer" within the meaning of Section 17B of the said Act and, therefore, no question would arise to invoke the said provision to fasten the liability of Gangapur Sugar Factory -Respondent No. 2 in respect of payment of provident fund dues prior to the date of agreement between the parties on the petitioners. Therefore, on this point also, the impugned action of attachment of the goods belonging to the petitioners, which were already under pledge with Respondent No. 3 was, void ab initio, illegal, arbitrary and violative of Article 19(1)(g) of the Constitution of India. For the reasons stated above, in view of judges the petition succeeds as the action taken by Respondent No. 1 is illegal and against the principles of natural justice.

RBI

• RBI Releases Development Research Group (DRG) Study on "Municipal Finance in India - An Assessment"

Press Release No: 2007-2008/928, dated 14.1.08: - The Reserve Bank of India (RBI) published a Study entitled "Municipal Finance in India - An Assessment". The Study was undertaken under aegis of the Development Research Group (DRG). The Study attempts to analyse the reasons for differential performance of Urban Local Bodies (ULBs) with respect to fiscal parameters and provision of civil amenities under the Constitution (74th Amendment) Act, 1992 .

The major findings of the Study are summarised below :-

• The Study highlights mismatch between functions and finances of ULBs, which primarily explains the vertical imbalance.

• It is highlighted by the study that Out of 18 functions to be performed by the municipal bodies in India, less than half have a corresponding financing source.

• According to the Study Own taxes and user charges of the ULBs in India are grossly inadequate to meet the expenditure needs of ULBs.

• The Study highlights that backlog, current and growth needs of infrastructure in cities and towns far exceed the resources at the disposal of the ULBs.

• It is highlighted by the study that a national consensus needs to evolve on a 'municipal finance schedule' for assignment to the ULBs to match the list of functions included in the 12th Schedule of the Constitution.

• It is emphasised by the study the function-finance mapping to ensure that each function to be performed by the ULBs is backed by a corresponding financing source.

TRAI

• Short Consultation on Amendment to the Telecom Unsolicited Commercial Communications (UCC) Regulations, 2007

Press Release No : 8/2008, Dated : 16.01.2008:- Telecom Regulatory Authority of India (TRAI) with the objective of increasing the effectiveness of these regulations has issued short consultation on the proposed amendment to the Telecom Unsolicited Commercial Communications Regulations, 2007 issued on 5th June, 2007. The objective of regulation is to increase the effectiveness by providing some financial sanctions to non-compliant Telecom Service Providers and thereby reducing the nuisance and inconvenience to the subscribers of telephone/mobile services from the unsolicited tele-marketing calls/messages.

National Do Not Call (NDNC) Registry was set up by the Authority, which is operational since October 2007. Authority had advertised in the leading National dailies the procedure for registering in NDNC. It has been provided by this Amendment that if any telecom service provider does not comply with the provisions of the Telecom UCC Regulations, 2007 (4 of 2007), it shall be liable to pay an amount not exceeding Rupees five thousand for the first non-compliance and in case of second or any subsequent non-compliance, an amount not exceeding Rupees twenty thousand for each non-compliance. Also it is proposed to revise the tariff to be levied from the registered telemarketer to Rupees five hundred for the first unsolicited call and Rupees one thousand for second or any subsequent unsolicited call.

Cases

• Boudin, CJ, Craig Goulet, Vs. New Penn Motor Express, INC., and Teamsters Local 25

Craig Goulet appeals from the verdict in favor of defendant New Penn Motor Express, by the United States District Court. He alleged for reinstatement of his employment and for breach of a labor agreement by New Penn. Held, The jury was aware of the requirements for reinstatement set out by the NEJAGC's resolution of Goulet's grievance. Further, evidence at trial strongly suggested that Goulet remained severely disabled, and the jury was free to draw further inferences from this as to the likelihood of his having been reinstated. It would have been reasonable for the jury to conclude that Goulet had never satisfied the conditions of the award provisionally allowing his reinstatement, that he was not physically capable of work during the period the call list was in effect, and that the unexplained appearance of his name on the November 2001 list was an aberration rather than reflective of his actual reinstatement. The question of Goulet's ability to work affected whether his grievance was meritorious reinstatement. Thus the jury affirms the judgment of the District court.

• Lynch, CJ, John D. Require Vs. American Airlines, INC

A suit alleging that the removal of the plaintiff from a flight and subsequent denial of re-booking violated his rights to be free of race discrimination in contracting under 42 U.S.C. section 1981, a jury verdict for plaintiff is vacated and the case remanded with instructions to enter judgment for the defendant where:

1) the district court failed to instruct the jury on the statutory permission given to air carriers to remove passengers under 49 U.S.C. section 44902(b);

2) the court otherwise erroneously instructed the jury; and

3) no properly instructed jury could return a verdict against the air carrier, and therefore the district court should have granted defendant's motion for judgment notwithstanding the verdict.

News

• The British PM wants to upgrade Britain's Relation with India

Prime Minister Gordon Brown will embark on a two-day visit to India from Sunday with an avowed objective to upgrade Britain's relations with the emerging Asian giant to bring them on par with its ties with the US.

Brown, who will attend the fourth India-UK Summit, would discuss with Prime Minister Manmohan Singh ways to "come even closer" and step up trade and investment between the two countries, Paul, who is also British ambassador for overseas business, said.

Climate change, education, technology transfer were among other issues that would figure prominently during their parleys, Paul said, adding that Brown was "very excited" about the visit.

• New UN forum to bridge divide between civilizations

The first Alliance of Civilizations Forum will be hosted by Jose Luis Rodriguez Zapatero, Spanish prime minister who proposed it at the UN in September 2004 in an initiative inspired by the Madrid train bombings that killed 191 people six months earlier.