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In This Issue

[No.79]                                                                            March 10, 2004

International
SEBI
Department of Company Affairs
CBEC Excise Tariff
CBEC Customs Tariff
Service Tax
RBI
DGFT
Department of Telecommunications
Ministry of Labour
Ministry of Health
Press Information Bureau
Supreme Court

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International Cases and News

Cases

Source: Westlawinternational.com

  • Labour and Employment: Sole shareholder could be ERISA plan "participant"

The Supreme Court has held that the working owner of a business qualifies as a "participant" in an Employee Retirement Income Security Act (ERISA) plan if the plan covers one or more employees other than the business owner and his or her spouse. In so holding, the Supreme Court rejected the Sixth Circuit's conclusion that a business owner could rank only as an "employer" and not also as an "employee" for purposes of ERISA-sheltered plan participation.

Raymond B. Yates, M.D., P.C. Profit Sharing Plan v. Hendon

  • Immigration: Due process required immigration judge to advise alien of opportunity to seek relief from removal.

A district court has held as a matter of first impression that due process required an immigration judge (IJ) to advise an alien facing removal based on a state-court conviction for an aggravated felony of the opportunity to apply for relief from the order for removal under the Immigration and Nationality Act or the Convention Against Torture. The alien had a strong interest in remaining in the United States, since he had lived in the U.S. for more than 20 years, and had a common-law wife and three children who were U.S. citizens. Moreover, the failure to advise the alien increased the risk of erroneous deprivation. Finally, requiring the IJ to do so did not significantly burden the government's interest in administrative efficiency.

Bonhometre v. Ashcroft

  • Insurance: Women's Contraception Equity Act did not violate constitutional right to free exercise of religion.

Even applying the strict scrutiny test to a church-affiliated employer's constitutional challenge to provisions of the Women's Contraception Equity Act (WCEA), which required employers who provided group health care and disability insurance prescription coverage for their employees to include coverage for prescription contraceptives, the Supreme Court held that the WCEA did not offend the right to free exercise of religion as guaranteed by the state and federal free exercise clauses. The Court noted that whether the strict scrutiny or rational basis test is the proper standard of review for challenges to neutral, generally applicable laws under the state constitution's free exercise clause was an open question.

Catholic Charities Of Sacramento, Inc. v. Superior Court

Intellectual Property Rights (IPR) Cases

  • Copyright: No infringement of copyright when a single copy of a reported decision, case summary, statute, regulation or limited selection of text from a treatise is made available.

The appellant Law Society maintained and operated the Great Library at Osgoode Hall in Toronto, a reference and research library with one of the largest collections of legal materials in Canada, providing a request-based photocopy service for Law Society members, the judiciary and other authorized researchers. Under this "custom photocopy service", legal materials are reproduced by Great Library staff and delivered in person, by mail or by facsimile transmission to requesters. The respondent publishers commenced copyright infringement actions against the Law Society, seeking a declaration of subsistence and ownership of copyright in specific works and a declaration that the Law Society had infringed copyright when the Great Library reproduced a copy of each of the works. Held The Law Society does not infringe copyright when a single copy of a reported decision, case summary, statute, regulation or limited selection of text from a treatise is made by the Great Library in accordance with its access policy.

CCH Canadian Ltd. v. Law Society of Upper Canada

  • Trademarks : Defendant's actions undertaken to inform consumers about the practices of landscaping do not amount to acting in bad faith within the meaning of ACPA.

The trial court granted summary judgment in favor of Grosse in the suit alleging that Grosse violated the Anticybersquatting Consumer Protection Act ("ACPA") by registering the domain name "lucasnursery.com" and creating a website which detailed Grosse's complaints against Lucas for the allegedly bad landscaping services.The 6th Circuit affirmed the grant of summary judgment in favor of Grosse concluding that Grosse did not act in bad faith within the meaning of the ACPA given that the site was used for noncommercial purposes and Grosse's actions did not evince an intent to trade on the goodwill of Lucas's mark hence the paradigmatic harm that the ACPA was enacted to eradicate was not present in any of Grosse's actions. Grosse's conduct was found not to be motivated by bad faith or intent to profit. It was noted that Grosse's actions were undertaken in the spirit of informing fellow consumers about the practices of a landscaping company that she believed had performed inferior work on her yard and such actions are inconsistent with the ACPA's purposes.

Lucas Nursery & Landscaping v. Grosse

  • Trademarks: Political candidate could not eliminate critic's website.

A political candidate was not likely to prevail on a cybersquatting claim against a critic whose website used the candidate's name as a domain name. Thus, the candidate was not entitled to a temporary restraining order. The anti- cybersquatting statute did not provide coverage for a personal name that was not trademarked, where the website had no commercial use, and, in any event, the suit's implication of the critic's free speech rights was an overriding issue.

Ficker v. Tuohy

  • Patents: Patent term extension applied to all salts of molecule covered by drug patent.

The patent term extension, granted to a pharmaceutical company to compensate for the regulatory review period for a new drug based on the patented molecule, applied to all the salts of the molecule covered by the patent, and not merely to the particular salt of the molecule being used in the approved drug. Thus, a generic drug manufacturer could not avoid infringement during the extension term merely by changing the salt.

Pfizer Inc. v. Dr. Reddy's Laboratories, Ltd.

  • Computers and Electronics: Patent for system for administering separate account life insurance policies was valid.

A reference to "surrender value protected investment credits," in a patent for a computerized system for administering separate account life insurance policies, did not render the patent indefinite. Although the phrase was not expressly defined, it was inferable that it was synonymous with the industry- understood "stable value protected investment credits."

Bancorp Services, L.L.C. v. Hartford Life Ins. Co.

Source: wipo.int

  • Domain Name Disputes : Registration of domain name "yallapepsi.com" - a prime example of opportunistic bad faith 

The dispute in the present case pertains to the domain name “yallapepsi.com” which is registered with IHoldings.com, Inc. d/b/a DotRegistrar.com and its registrant is the respondent Samtech. The Complainant PepsiCo is the owner of the PEPSI COLA and PEPSI trademarks along with numerous other marks incorporating the word PEPSI in various countries, including several registrations in Saudi Arabia, where respondent is located.

Regarding the issue of confusing similarity of disputed name with PEPSI trademarks and rights or legitimate interests in the domain name the panel decided in favor of complainant considering the notoriety of the PEPSI mark, the fact that the mark forms the most distinctive part of the disputed domain name and complainant’s pre existing rights in the PEPSI mark. In addition, respondent’s choice to use a stylized "Pepsi" mark and a logo similar to PepsiCo's logo on the corresponding website suggested that the respondent was not making a legitimate, non-commercial use of the domain name, srather was attempting to benefit from an association with complainant’s mark thus the element of bad faith was also satisfied. For all the foregoing reasons, the Panel ordered transfer of disputed domain name “yallapepsi.com” to the complainant.

PepsiCo, Inc., v. Samtech

News

  • Washington State Facing The Same-Sex Marriage Fight

The Washington State followed California, New York and Massachusetts as new battlegrounds for the question of legalized same-sex marriages when a lawsuit was filed in Seattle on behalf of six same-sex couples who were denied marriage licenses. It has been voiced that as long as gay couples cannot marry, they are not treated equally under the law. The case seeks full marriage for lesbian and gay couples in Washington, nothing more and nothing less. On February 24, President Bush endorsed a constitutional amendment that would restrict marriage to two people of the opposite sex, but left open the possibility that States could allow civil unions in view of the Massachusetts Supreme Judicial Court's recent decision granting marriage rights to same-sex couples, and San Francisco Mayor Gavin Newsom's decision recently to begin giving marriage licenses to gay and lesbian couples.

  • Boy Scouts Discrimination Appeal Refused

The Supreme Court refused to hear an appeal from the Boy Scouts wherein officials dropped the group from a list of charities that receive donations through a state employee payroll deduction plan. The organization claims the action as discriminatory because of its policy against hiring gays. The case revisited the gay rights fight surrounding the high court's ruling four years ago that the Boy Scouts have the right to ban openly homosexual scout leaders. This time, the question was whether states may treat the Scouts differently than other organizations because of that policy.

  • Unabomber Can't Donate Writings

Unabomber Theodore Kaczynski, the former mathematics prodigy turned anti-technology serial bomber has no right to donate his writings to a university for research, a federal judge has ruled. U.S. District Judge Garland E. Burrell Jr. ruled that the government legally possesses the papers on behalf of the victims of Kaczynski's bombs, and may keep the documents indefinitely. As part of a plea agreement, Kaczynski admitted his role in the bombings and was sentenced to life in prison without parole in 1998. He is serving his sentence at a high-security prison in Colorado.

  • Supreme Court Takes Up WW II-Era Dispute

The Supreme Court wrangled over whether to allow a lawsuit by an elderly Los Angeles woman over $150 million worth of paintings stolen by the Nazis from her relatives more than 65 years ago. Justices have been asked to let Maria Altmann pursue her suit. The government of Austria, which has the art, is trying to block the suit in a California court. The question for the court is whether to allow lawsuits over disputes predating a 1952 U.S. government policy that shielded some countries from lawsuits. Austria argues that it rightfully owns the paintings as a member of Altmann's family gave the Klimt paintings to the museum. Altmann's lawyers contend the will was invalid. A victory for the 88-year-old Altmann, critics warn, could lead to lawsuits in American courts against galleries worldwide and would revive old allegations of government misconduct.

  • Iraqis Adopt The Interim Constitution

Iraq's US-appointed Governing Council has signed an interim constitution at a landmark ceremony in Baghdad. Shia Muslim spiritual Ayatollah Ali al-Sistani - a leading critic - says it will hamper plans for a permanent constitution in the future as only an elected body should sign off further legislation in Iraq. But US President George W Bush called the adoption an "historic milestone". The document sets out the framework for how Iraq will be governed after the US-led coalition ends the occupation on 30 June and before a new government is chosen by national elections, supposedly by early 2005.

  • Lords Inflict Supreme Court Blow

The House of Lords has defeated government hopes of pushing through plans to abolish the post of lord chancellor and set up a supreme court. Tory Lords leader Lord Strathclyde said that any suggestion that the views of Commons and Lords on scrutiny should now be bypassed by withdrawing this Bill and laying a new one would be an act of petulance. Tories have urged ministers not to ignore "the voice of Parliament" by using powers to force the bill through as the same would be "the mark of a government unwilling to listen to the voice of Parliament". The Bill seeks to establish a new independent commission to appoint judges and the proposed reforms would leave that job to a new supreme court working completely separately from Parliament.

  • Court Rules on Defendant-Counsel Rights

The Supreme Court ruled that while people pleading guilty to crimes are entitled to an attorney, judges don't have to warn them of the disadvantages of not seeing a lawyer. In its 9-0 ruling, the court reaffirmed that people facing prison time are entitled to attorneys at critical stages of the process, including a plea hearing. But Justice Ruth Bader Ginsburg said from the bench that the court has not "prescribed any formula or script to be read to a defendant who states that he elects to plead guilty without counsel.

  • Passionate Public Kiss in Indonesia Could Mean Jail

Couples caught kissing passionately in public in Indonesia could spend five years in jail or a $29,000 fine. Members of parliament have proposed an anti-pornography bill that includes a ban on kissing on the mouth in public. Anyone caught flashing would face similar penalties. The bill also proposes bans on public nudity, erotic dances and sex parties, with jail terms ranging from three to 10 years. Watching such shows could lead to two years behind bars.

SEBI

Secondary Market Division

  • SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997- Modified Formats of letter of Offer

Circular No. SEBI/MIRSD/MB/Cir-01/2004 Dated 08.03.2004 : In order to strengthen the disclosures as made in the Letter of offer, certain additional disclosure requirements/modifications have been carried out in the existing standard format of the Letter of Offer, which was originally framed and issued on August 10, 1999. The Merchant Bankers have been advised to follow the modified format while submitting draft letter of offers from now onwards.

  • Submission of Audit Reports under Regulation 55A of SEBI (Depositories and Participants) Regulations, 1996

Circular No. SEBI/MRD/Policy/Cir-13/2004 Dated 03.03.2004 : Regulation 55A of SEBI (Depositories and Participants) Regulations,1996 and SEBI Circular No. D&CC/FITTC/Cir-16/2002 dated 31.12.02 stipulates a mandatory condition on all the listed companies to submit audit reports on quarterly basis within 30 days from the end of each quarter, to the stock exchange(s) where the shares of a company are listed. Noticing the non compliance of aforesaid provisions by the listed companies, SEBI has instructed the stock exchange(s) to draw the attention of the listed companies to the aforesaid provisions and the need for effective compliance with the said provisions. Further, stock exchanges have been advised to inform the companies that submission of the audit report is a continuous requirement and accordingly, comply with the same on time. SEBi has also instructed the companies that failure to comply with the aforesaid provisions would be viewed seriously and penal actions including adjudication proceedings would be initiated by SEBI against the companies.

In addition to above the Board has also directed the exchange(s) to submit the status reports on the extent of compliance with the audit requirement by the listed companies, within 45 days from the end of each quarter, as advised earlier by SEBI vide letter dated 31.12.2002.

Mutual Funds Division

  • Mentioning of Bank Account Number and PAN by Investors

Circular No. SEBI/ IMD/CIR No. 6/4213/ 04 Dated 01.03.2004 : With a view to strengthen the process of 'Know your client' by mutual funds, SEBI has advised to ensure that wherever an application by the investors of mutual funds is for a total value of Rs. 50,000 or more, the applicant or in the case of application in joint names, each of the applicants, should mention his/her permanent account number (PAN) allotted under the Income Tax Act, 1961 or where the same has not been allotted, the GIR number and the income-tax Circle/Ward/District should be mentioned. In case where neither the PAN nor the GIR number has been allotted, the fact of non-allotment should be mentioned in the application form. It has been cleared that any application form without these details should not be accepted by the mutual fund.

Department of Company Affairs

  • Companies (Issue of Indian Depository Receipts) Rules, 2004

Notification No. GSR131(E) Dated 23.02.2004 : The Central Government has issued Companies (Issue of Indian Depository Receipts) Rules, 2004 which have been made effective from 23.02.2004. These rules have been made applicable only to those companies incorporated outside India, whether they have or have not established any place of business in India. These rules prescribe the criterion under which and the procedure to be followed by the eligible companies while issuing the IDRs.

CBEC Excise Tariff

  • Changes in Customs/ Excise Duties in Respect of Iron, Steel and Coal

TRU Letter No. F.No. 354/27/2004-TRU Dated 28.02.2004 : The following changes have been made in the rates of customs and central excise duties on iron and steel and coal:

(i) Excise duty on all iron and steel falling under chapter 72 has been reduced from 16% to 8%;

(ii) Customs duty on pig iron has been reduced from 10% to 5%;

(iii) Customs duty on non-coking coal has been reduced from 15% to 5%;

(iv) Customs duty on coking coal of ash content below 12% has been reduced from 5% to Nil.

Notification Nos. 44/2004-Customs and 16/2004-Central Excise, both dated 28th February, 2004, have been issued to give effect to the above changes. These changes have been made effective from 28.2.2004.

CBEC Customs Tariff

  • Delay in Release of Consignments due to Classification Disputes, Seizure and Provisional Release

Circular No. 22/2004 Dated 03.03.2004 : In the matter of withholding of items involving classification disputes, the Board has mentioned that option may be given for provisional clearance/assessment provided in such cases if the inquiries are going to take time. The Board has also desired that a disputed or offending consignment should also not be held up unless its import/clearance is totally prohibited or banned under any law for the time being in force [E.g. PFA,CITES, Weight & Measures Act,etc.] or where prosecution is contemplated. At most, samples should be drawn & consignment should be allowed to be cleared on provisional basis as a matter of right.

  • Fixing of Single Day for Release of Public Notices by Field Formations

Circular No. 21/2004 Dated 27.02.2004 : Having regard to the matter of fixing a single day for release of "Public Notices" by the Customs Houses to enable the trade to know when to expect any change in any procedures, the Board has cleared that certain Public Notices cannot be kept pending till any appointed day because the delay may result in loss of revenue or delay in clearance of imported/export goods. Accordingly, it has been decided to fix 1st and 3rd Mondays of the month for issuance of Public Notices by field formations, except in cases where the Public Notice is based on Board's Circular or instructions or any notification , where it should be issued immediately. In case 1st or 3rd Monday happens to be a holiday , the Public Notice should be issued on the next working day.

Service Tax
  • Clarification Sought by PHD Chamber of Commerce and Industry on Various Difficulties Being Faced by Service Tax Assessees

Circular No. 76/6/2004 Dated 03.03.2004 : On the matter of general difficulties being faced by Service Tax assessees, clarifications have been provided by the Board. In the matter of penalty for each service for delay in taking single registration for more than one taxable service and for delay in filing of return by assessee providing more than one taxable service it has been clarified that as per statutory provisions only one penalty as prescribed can be imposed. Also in the matter of Issue of Show Cause Notice for petty amounts, it has been decided that for an amount of rupees One Thousand and below towards short payment/non-payment of service tax, the jurisdictional officer should give an opportunity and allow the assessee to deposit the amount of service tax not paid alongwith interest, if any.

RBI

  • Priority Sector Lending - Prime Minister's Rozgar Yojana (PMRY)

Notification No. RPCD. No.PLNFS.BC.69/09.04.01/2003-2004 Dated 05.03.2004 : RBI has been issuing instructions or directions from time to time with regard to operationalisation of the PMRY scheme. To enable the banks to have compilation of current instructions at one place a master circular in this regard containing all the existing guidelines /instructions /directives on the scheme has been prepared. the master circular is updated by consolidating all the previous instructions issued by RBI upto 29 February, 2004.

  • Grant of Advances Against the Security of Relief Bonds

Notification No. UBD.No.BPD.PCB.Cir.36/13.08.00/2003-2004 Dated 27.02.2004 : it has been clarified that the bonds issued in different series would be eligible securities for sanction of loans subject to the terms as detailed in circular UBD.No.PCB.82/DC.(13.08.00)/92-93 dated June 2, 1993 viz.,

i) The banks should satisfy themselves as to the acceptability of the purpose, genuiness of the credit need of the borrower and end-use of funds lent, and should not be guided solely by availability of Relief Bonds as security:

ii) The rate of interest should be in accordance with the directives on interest rates issued by the Reserve Bank of India from time to time;

iii) Adequate margin should be kept to cover defaults, if any, in repayment of the principal and interest at the appropriate rate.

  • Auditors for Public Sector Banks : Revised Empanelment/ Categorisation Norms to be Effective 2004-05

Press Release No. 2003-2004/1043 Dated 01.03.2004 : The Reserve Bank of India had decided to put into effect revised empanelment/categorisation norms for audit firms to be considered as statutory central/branch auditors of 27 public sector banks with effect from the year 2004-2005. On representation from the Institute of Chartered Accountants of India, New Delhi it has now been decided to defer the implementation of the revised norms for a period of one year. Accordingly, the new norms will now come into force with effect from 2005-2006 instead of 2004-2005.

  • RBI Reconstitutes Technical Advisory Committee (TAC) on Money, Foreign Exchange and Government Securities Markets

Press Release No. 2003-2004/1042 Dated 01.03.2004 : The RBI has decided to reconstitute the TAC on Money and Government Securities Markets for a further term of two years from the day of its first meeting. The scope of the Committee has been widened to include foreign exchange market keeping in view of its interlinkages with money and government securities markets and its implications for monetary policy implications. The Committee would advise the RBI, on an ongoing basis, on the development of healthy and vibrant money, foreign exchange and government securities markets.

  • 844 Bank Branches to Accept Income Tax Dues

Press Release No. 2003-2004/1039 Dated 01.03.2004 : The Reserve Bank of India has advised income-tax assessees in the cities of Mumbai and Navi Mumbai to take advantage of paying their income tax dues at any of the designated bank branches. The income-tax department has authorised 844 computerised branches of public sector banks and private sector banks in Mumbai and Navi Mumbai to accept payment of income-tax dues.

DGFT

  • Issuance of IECs with Dummy PAN

Trade Notice No. 11/ 2003-2004 Dated 26.02.2004 : Earlier IECs number had been issued with dummy PAN, as the exporters were facing problems in PAN issued to them by Income Tax Department, but subject to condition that the IEC holders, whom IEC was issued with dummy PAN will revert back to this office with original IECs to get the original PAN (which is subsequently issued to them by Income Tax Department/UTI) incorporated. However, it has been noticed that the said IEC holders are not coming forward to get PAN numbers incorporated into their IECs. Now, all the IEC holders with dummy PAN have been requested to submit their IECs within a period of 15 days for incorporating actual PAN allotted to them failing which, their IECs will be blocked.

Department of Telecommunications
  • The Reporting System on Accounting Separation Regulation, 2004

Notification No. 414/7/99-FA Dated 23.02.2004 : The Telecom Regulatory Authority of India has made the The Reporting System on Accounting Separation Regulation, 2004 to be effective from 23.02.2004.

Ministry of Labour
  • Emigration (Amendment) Rules, 2004

Notification No. GSR143(E) Dated 26.02.2004 : Amedments have been brought into the Emigration Rules, 1983 through this notification. The amendments have been made in:

(i) rule 7, wherein fees for making application for registration of a recruiting agent has been increased from Rs. 2000/- to Rs. 5000/-

(ii) rule 9, wherein the validity certificate issued under the above said rules has been made valid initially for a period of five years and shall be renewed for a period upto twenty-five years. Before amendment the validity period was three years

(iii) rule 9A, wherein renewal of certificate fees has been enhanced from Rs.2000/- to Rs. 25000/-.

These amendments shall come into force with effect from 15th March. 2004

Ministry of Health
  • Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2004

Notification No. GSR137 Dated 25.02.2004 : The Central Government has issued Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2004. These rules shall come into force on the 1st day of May, 2004. These rules have been framed to prohibit smoking in a public place and to prohibit the advertisement of cigarette and other tobacco products. In addition the rules are also aiming at prohibition of sale of cigarettes and other tobacco products to minors.

Press Information Bureau
  • Revision/Fixation of Prices of Bulk Drugs

Dated 08.03.2004 : National Pharmaceutical Pricing Authority (NPPA) has revised the prices of following bulk drugs and derivatives due to reduction in the Customs Duty and abolition of Special Additional Duty. This exercise has been carried out in order to pass on the benefit of reduction of duties to the consumers. The price of Vitamin E Acetate has also been revised from Rs. 1224/Kg to Rs.942/Kg based on the detailed cost price study of M/s Merck Ltd. India. The revised notified prices shall become effective within 15 days from the date of notification in the Official Gazette. The notifications in this behalf have been issued in official gazette through Order No. SO282(E) Dated 03.03.2004 and Order No. SO281(E) Dated 03.03.2004.

  • Filing of Trade Returns Extended Upto 31st March 2004

Dated 01.03.2004 : On demand from exporting community the date for filing the trade returns has been extended upto 31st of March 2004. it has been cleared that there shall not be any further extensions, hence, IEC holders are requested to file the information by this date. It has been further cleared that if an IEC holder does not file return by 31st of March 2004, he may risk de-activating of his IEC number.

Supreme Court
  • Sheo Shyam and Ors. Vs. State of U.P. and Ors.

The question for consideration before Hon’ble Supreme Court was regarding the date from which the period of validity of the waiting list for posts of Assistant Prosecuting Officer, is to be reckoned. According to the Union Public Service Commission it is from the first date on which the Commission made the recommendation. The appellants took the stand that the recommendations were done piece-meal, and therefore, it has to be from the date on which the last recommendation was made.

Apex Court held that in view of the peculiar nature of the fact situation, it would be inequitable and unjust to compute the one-year period from the date when the first recommendation was made by the Commission. The Bench further clarified that if the Commission's stand is that the validity period of the waiting list is one year, it should have sought for clarification from State Government as to why unfilled posts were included in the requisition, when its specific stand was being contrary to office memorandum. Further the Court directed to both the State Government and the Commission to remain more vigilant and constructive in their approach and their stands have to be consistent while dealing with the careers of large number of candidates.

  • U.P. State Bridge Corporation Ltd. and Ors. vs. U.P. Rajya Setu Nigam S. Karamchari Sangh

The appeal raised before Hon’ble Supreme Court was directed to validate whether termination of services of respondent workmen due to unauthorized absence from duty by appellant company under standing orders was justified. It was pleaded by appellant that High Court ought not to have entertained writ petition at all since disputed questions of fact were involved and matter ought to have been left for decision under Industrial Dispute Act.

Apex Court allowing the appeal held that where the statute gives a specific remedy, the person who insists upon such remedy could avail of the process as provided in that statute and in no other manner. Since dispute being an industrial dispute both within meaning of Industrial Disputes Act, 1947 as well as UPIDA, 1947, High Court erred in entertaining writ petition of respondent Union. The Bench further clarified that Certified Standing Orders do not constitute Statutory Provisions in the sense that dismissal or removal of an employee in contravention of the Certified Standing Orders would be a contravention of statutory provisions enabling the workman to file a writ petition for their enforcement.

The issue of alternative remedy should be raised and decided at the earliest opportunity so that a litigant is not prejudiced by the action of the Court since the objection is one in the nature of a demurer. Nevertheless even when there has been such a delay where the issue raised requires the resolution of factual controversies, the High Court should not, even when there is a delay, short-circuit the process for effectively determining the facts. Further the Hon’ble Supreme Court held that when it was drawn to the attention of the High Court that a previous writ petition raising the same issue had been dismissed on the ground of the existence of an adequate alternative remedy, the High Court should not have continued to dispose of the matter itself under Article 226 and in effect set aside the decision in the previous writ petition.

  • Pensioners' Assc., Ex-Assam Oil Officers and Ors. Vs. Union of India (UOI) and Ors.

Petition was filed before the Hon'ble Supreme Court under Article 32 of the Constitution of India by the pensioners who had been serving the Assam Oil Company Limited, having retired on or before October 13, 1981 to claim the benefits of the revised pension scheme as made admissible to the retirees of Indian Oil Corporation without any distinction or cut-off date of retirement.

Apex Court held that if a person is already getting pensionary benefits and an amendment is effected for upward increase in pension, such a retiree would be entitled for the enhanced benefit and the same could not be denied for the reason that he had already retired before the change came into effect and certainly those who were not entitled for pension at all, could not be included in the fold of the pensioners to whom enhancement of pensionary benefit would be applicable.

Further, Apex Court held that the pensioners were the members of the existing pension fund at the time of taking over of the undertaking by the central government. Pension fund also stood transferred and vested in the central government / successor company as would be evident from the averments made in the scheme framed in the year 1983 and in such circumstances the petitioners would be entitled for the benefit of the new formula introduced in 1995. - Appeal was allowed.