[No.219]

Supreme Court

• Bhagwan Dass and Anr. v. Punjab State Electricity Board

Appellant No. 1 was working with Respondent-Board. While in service he became totally blind. He remained absent from duty without any sanctioned leave for more than three years. A chargesheet was issued against Appellant initiating disciplinary proceedings against him for gross misconduct under Regulation 8 of the Punjab State Electricity Board Employees Punishment & Appeal Regulation 1971. Meanwhile, Appellant requested the Board to retire him from service and also requested that his wife be employed in his place. The chargesheet issued against the Appellant was withdrawn and Appellant was relieved from service. Aggrieved by this, Appellant filed an appeal before the High Court, which was dismissed. Hence, present appeal. Held, that in the letter for retirement, Appellant requested to be retired but at the same time requested that his wife should be given a suitable job. The letter was not a voluntary offer for retirement. Therefore, it was the duty of the superior officers to explain to him the correct legal position and to tell him about his legal rights. Since they failed to do so the action of the concerned officers was depreciable. Denial of a disabled persons rights would not only be unjust and unfair to them and their families but would create larger and graver problems for the society at large therefore termination was bad and illegal. Appellant entitled to all service benefits.

• Venture Global Engineering v. Satyam Computer Services Ltd. and Anr.

Appellant-Company and Respondent No.1- entered into a Joint Venture Agreement. Disputes arose between the parties and a Sole arbitrator was appointed by the London Court of International Arbitration. Arbitrator passed an award directing the Appellant to transfer the shares to Respondent No.1. Thereafter, Appellant filed a suit before the First Additional Chief Judge seeking declaration to set aside the award and permanent injunction on the transfer of shares under the award. District Court passed an ad-interim ex parte Order of injunction. Respondent No.1 filed an appeal before the High Court, which was dismissed. Hence, present appeal. Held, that provisions of Part I of the Arbitration and Conciliation Act, 1996 would apply to all arbitrations including international commercial arbitrations and to all proceedings relating thereto unless the parties by agreement, express or implied, exclude all or any of its provisions. Further, Judgment-debtor cannot be deprived of his right under Section 34 of the Arbitration and Conciliation Act, 1996 to invoke the public policy of India, to set aside the award. In present case, Award had an intimate and close nexus to India as company was situated in India and transfer of "ownership interests" shall be made in India under the laws of India. Therefore, if Respondent No. 1 was not prepared to enforce the award in spite of this intimate and close nexus to India, the Appellant would certainly not be deprived of the right to challenge the award in Indian Courts.

High Courts

Delhi

• Hawkins cookers limited v. M/s Murugan Enterprises

The Plaintiff is manufacture of pressure cookers and parts thereof under the trademark "HAWKINS" for the last 30 years. The Plaintiff came to know that the Defendant was using the trademark HAWKINS/Hawkins in respect of parts of pressure cooker and therefore, served a Cease and Desist Notice on the Defendant. However, as the Defendant did not pay any heed to the same, the Plaintiff instituted suit for permanent injunction restraining infringement of trademark, passing off, delivery up and rendition of accounts etc. against the sole Defendant. Defendant refuted the allegation on the ground that they only state on their product/gasket that the same is suitable for Hawkins Pressure Cookers. Held, Defendant has its own well-established trademark MAYUR. No reasonable person or purchaser can ever assume a trade connection between MAYUR brand of gaskets and Hawkins. Use of the expression 'Suitable for Hawkins Pressure Cookers' in front of the Defendants product would clearly fall within the exception carved out under Section 30. Condition of 'Honest use' is satisfied, since one cannot decipher a commercial connection between the plaintiff and the Defendant by use of the word HAWKINS by the defendant. It is not a case where there is dilution of the value of the trademark of the Plaintiff by unfair advantage being taken of its distinctive character or repute by the Defendant. Prominent display of the own trade mark of the Defendant along with prominent display of the address of its manufacturers as against the same indicates suitability of the gaskets for Hawkins pressure cookers and not one of passing off. Petition dismissed.

Bombay

• Ravi Shinde, Nagpur and Ors. v.Medical Council of India, Dwarka, New Delhi and Anr.

The Petitioners after passing their 12th standard examination, were selected for MBBS course in the year 2005 in their respective colleges and all of them, thereafter, pursued the first MBBS course. They appeared for the examination conducted in or about 3rd July, 2006. All the Petitioners failed in the said regular examination. Thereafter, they took the next supplementary examination conducted in or about November, 2006 and passed the said examination. The grievance of the Petitioners was that Respondent 2-University ought to have allowed the Petitioners, after passing their first supplementary MBBS examination to join the regular batch or the main batch of the second MBBS course. According to the Petitioners, they should have been allowed to take the second MBBS professional examination along with the students of the regular batch who had passed their first MBBS professional examination. They filed Writ Petition under Regulation 7(7) of Regulations of Medical Council of India against the said refusal of university. Held, Respondent No. 1 Medical Council of India entrusted to ensure quality in medical education and also empowered to make regulations for the said purpose. As per Regulation of 1997 a student must undergo training for 18 months before taking second year medical examination. If student fails in Phase 1 examination he must sit for supplementary exam. By the time failed students cleared their supplementary examination, training of other students had already started. Thus, such students cannot insist on being allowed to take second examination with regular students. University has the liberty to hold supplementary exam any time within six months. Passing the supplementary examination would not relate back to the annual examination. By the time, a student passes the supplementary examination, Phase II training for second MBBS professional examination would have already begun. Such a student, therefore, cannot complete 18 months of mandatory training to be eligible to take second MBBS professional examination, which is held during 5th semester. He cannot join the main batch and take second MBBS professional examination with them. Lowering of eligibility norms would adversely affect Medical Education. As per 1997 Regulation requirement of passing 18 months training cannot be done away with. 1997 Regulations held to be mandatory. Petition dismissed.

RBI

• RBI Places on Its Website Revised Regulatory Framework for Mortgage Guarantee Companies

Reserve Bank of India today placed on its website modified guidelines for mortgage Guarantee Companies (MGCs) for study by a wider audience. Modifications proposed are.

A minimum net owned fund of Rs.100 crore is fixed for the mortgage guarantee company at the time of commencement of its business. It would be earliest requirement for the mortgage guarantee company to have

have a minimum net owned fund of Rs.100 crore at the time of commencement of business. Which would be increased to Rs.300 crore within three years from the date of commencement of business.

Capital adequacy prescription has been aligned with that prescribed for NBFC-ND-SI and CRAR has been stipulated at 10 per cent with Tier I stipulation reduced to 6 per cent. Prior to this, a mortgage guarantee company was to maintain 12 per cent of its aggregate risk weighted assets as the minimum capital adequacy ratio and at least 8 per cent of its aggregate risk weighted assets as Tier 1 capital.

In view of the extent to which institutions were to be effectively covered by the product from the risk, NPA related trigger point provisions were formulated. Considering special status of the banking institutions in the country, the criticality of banks for the economy and the recent global experiences of interaction between banks and non-banking financial institutions even in advanced countries, it was considered appropriate to retain this provision

TRAI

• TRAI Provides Its Recommendations on Issues Relating to Mobile Television Service

Press Release No. 13/2008 Dated 23.01.2008.The Telecom Regulatory Authority of India provides its recommendations on issues relating to mobile television service to the Ministry of Information & Broadcasting. Mobile television services are provided by two routes viz, one using the telecom network with spectrum already allotted to UASL/ CMTS licensees, and the other using broadcasting method using separate spectrum. According to Authority telecom operators having CMTS or UASL license will not require any further license or permission for offering mobile television services on their own network-using spectrum already allotted to them. Separate license will be required For providing mobile TV services through broadcasting.

TRAI's recommendations now provide for policy guidelines for mobile television operators using broadcast method. The recommended policy guidelines for such mobile television services cover technology, spectrum and licensing issues. The major recommendations are

Technology

The choice of broadcasting technology should be left to the service provider with the condition that the technology to be deployed for providing mobile television should follow a approved standard. In case the handset is provided by the licensee, it should be ensured that if the subscribers desire to migrate to any other licensee using the same technology and standards, they should be able to do so without changing the handsets.

Allocation of Spectrum

Specify slot assigned to Doordarshan and other private mobile TV operators and provide for the sharing of terrestrial transmission infrastructure of Doordarshan on mutual agreement basis in a non-discriminatory manner, for better utilization of spectrum. Closed Tender System is recommended for grant of licenses for mobile television services and A mobile TV license may be made mandatory for any telecom licensees including UASL/ CMTS licensees.

Licensing Issues

A new class of service providers for provision of mobile television services using broadcasting technologies.Should be created and state should be the license area for a mobile television terrestrial service license tenure for which should be of 10 years. The general disqualifications which have been adopted for Private FM Radio may be used for mobile television service also. Licensee should not either directly or indirectly assign or transfer its rights under the license in any manner to any other party except with prior approval of the Ministry of Information & Broadcasting. The composite foreign investment limit including FDI of 74% for mobile television service has been recommended by the Authority

• TRAI Mandates Provision of Hard Copy of the Summary Bill Free of Cost to Post Paid Subscribers

Telecom Regulatory Authority of India has directed telecom access service providers to provide Hard Copy of the Bill Free of Cost to their Post Paid Subscribers vide Tariff Amendment. The Telecommunication Tariff Order (46th Amendment) dated 24.1.2008 directs telecom access service providers to provide Hard copy of the bill / printed copy of the bill to be supplied free of cost which would enable the customers to understand and satisfy themselves about the genuineness of the bill, facilitate making payments, verify the charges incurred by the consumer and monitor usage or expenditure by consumer which would not be possible if the bill is sent through SMS / e-mail. This order is applicable across all types of tariff plans of Mobile (GSM and CDMA) and fixed line services in respect of post paid subscribers. The Authority is inter-alia guided by the fact that Service providers of other sectors such as Electricity Corporation, Water Utility Services, Financial Institutions are not charging any amount for providing the hard copy of the bill. At the same time Itemized bills for long distance calls will continue to be supplied free of cost by the access service providers.

Cases

• Stoneridge Investment partners, LLC V. Scientific-Atlanta, Inc. et al.

The case was initiated when a cable television company Charter Communications paid inflated prices to two suppliers so that those companies could boost their advertising payments to Charter. The scheme accounted for a $17 million infusion of "revenue" to Charter and allowed the company to hit its expected financial targets for 2000. Investors eventually brought a class action suit against Charter and, in a bid to maximize their damages, added as defendant's suppliers Motorola and Scientific American. The case was affirmed by the Eighth Circuit Court of Appeals and dismissed by the district court in St. Louis. Stoneridge argued that the law permits it to sue actors who participate in a fraudulent scheme, not as aiders or abettors, but as "primary violators" who are ultimately tied to market movements. Where the defendants argued that the law reaches only those who make deceptive communications to shareholders or engage in fraudulent trading on the market. So the Supreme Court determined that investors who were deceived by public companies cannot sue other actors who participated in the fraudulent schemes.

• Watson, Micheal V. U.S.

The issue was regarding that if a defendant receives a gun in exchange for drugs, has he used the gun under the terms of the federal drug law. In this case Micheal Watson, a 55-year-old man who is legally blind, furnished an undercover government agent with 24 doses of OxyContin, and received an unloaded pistol in exchange. He was immediately arrested and ultimately charged with several drug counts, including use of a firearm during and in relation to a drug trafficking offense. Where Watson pleaded guilty, he argued on the allegation of using the gun. The Fifth Circuit held that it did, falling in line with the First, Third, Fourth, Fifth, Eighth and Ninth Circuits. Had Watson traded his OxyContin for a gun in the Sixth, Seventh, Eleventh or D.C. Circuit, he would have been exonerated of the gun charge. The US Supreme Court held that using the gun could not be stretched to include receipt of a gun, so Watson wont be charged for using the gun.

News

• Obama Routs Hillary in South Carolina

WASHINGTON: Barack Obama, bidding to become the first black President of the US, scored a landslide win over his Democratic rival Hillary Clinton in the racially- charged South Carolina primary, blunting the momentum the former first lady enjoyed after her consecutive triumphs in New Hampshire and Nevada caucuses.

Riding on a massive African-American support, Obama last night routed New York Senator Clinton by 55 to 27 per cent in the state where more than 50 per cent of the voters were black and four out of five supported him. Among white voters, Obama took only about a quarter of the vote, with Clinton and former Sen John Edwards splitting the remainder.

• Japanese Woman Reaches South Pole on Skis

Tokyo: A 40-year-old Japanese alpinist today became the first woman to reach the South Pole on skis, sources said.

Sumiyo Tsuzuki from Tokyo reached the South Pole on skis today morning at 7:45 am local time.

Sumiyo left Japan for Chile in mid-November and arrived at a location in the Antarctica called the Hercules Inlet on November 28, from where she started trekking.

She planned to cover roughly 1,100 km distance on skis in about 60 days.