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[No.95]
August 20, 2004 |
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International Legal News
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Cases
Source:
Westlawinternational.com
The persecution of a Bangladeshi journalist, in response
to an article she had written criticizing a local government leader, was on
account of her political opinion, for purposes of her asylum claim, even though
she did not espouse a political theory in the article. The article accused the
leader of organizing repressive cadre and misappropriating public money. Thus,
it described an institutionalized level of corruption that went far beyond an
individual, anomalous case. The leader's response to the article demonstrated
that his motives were not purely personal. He publicized the need to punish the
journalist in terms of her identity as a journalist, a member of a women's
organization, and a leader of "anti-Islamic activities."
Hasan v. Ashcroft
An employee did not engage in protected activity upon
which an Age Discrimination in Employment Act (ADEA) retaliation claim could be
based when she hired an attorney to review a proposed agreement under which she
would remain with her employer in exchange for waiving discrimination claims
against the employer. She went to the attorney because she wanted demands added
to the agreement, but she did not hire the attorney to represent her on an age
discrimination claim.
Ambers v. Village Family Service Center, Inc.
Defendant's free speech protections under the Hawai'i
Constitution did not preclude her prosecution for second degree criminal
trespass, after she refused to stop her peaceful protesting activities in front
of a store located in a privately owned shopping center. Despite the shopping
center's size, number of visitors, bus station, post office, and satellite city
hall, it was not akin to a state actor, and Hawai'i's constitutional free speech
provision, which afforded no greater free speech protections than the federal
Constitution, required state action as a precondition to its application.
State v. Viglielmo
Under West Virginia law, a public or quasi-public
hospital may not enter into exclusive contracts with medical service providers
that have the effect of completely excluding other physicians who have staff
privileges at the hospital from the use of the hospital's medical facilities.
However, a public or quasi-public hospital may enter into a preferential
contract which grants to a single medical services provider the primary right to
practice in a specific department, but, unlike an exclusive contract, provides
exceptions in instances where another staff physician is specifically requested
by a patient.
Kessel v. Monongalia County General Hosp. Co.
The substantial-certainty test is the proper method to
determine whether an employee had the "manifest intent" necessary to
trigger coverage under an employee dishonesty provision of an insurance policy.
The standard is satisfied by proof that it was an employee's purpose or desire
to cause the insured to sustain a loss and to obtain a financial benefit for
himself or another at the insured's expense, or by proof that the employee knew
the loss and benefit were substantially certain to result from his or her
conduct.
Auto Lenders Acceptance Corp. v. Gentilini Ford, Inc.
The Secretary of State's discretionary decision as to
whether fugitive will be extradited is within Rule of Non-Inquiry, and is not
subject to judicial review. In so holding, the Ninth Circuit found that a prior
decision in which it had indicated that such decisions are reviewable through
habeas corpus was advisory and thus was non-binding dicta, since neither the
issue of judicial review of the Secretary's determination, nor of the
applicability of the Administrative Procedure Act (APA) to allow review, was
briefed or argued by the parties, and it was not necessary to resolve the issue
presented. The United Nations Convention Against Torture, as implemented by the
Foreign Affairs Reform and Restructuring Act (FARR Act), did not modify the Rule
of Non-Inquiry, which holds that it is the role of the Secretary of State, not
the courts, to determine whether extradition should be denied on humanitarian
grounds or on account of the treatment that the fugitive is likely to receive
upon his return to the requesting state.
Cornejo-Barreto v. Siefert
A state employee was "operating a motor
vehicle" owned by the state when a driver of a tractor trailer attempted to
maneuver around a state dump truck that was parked alongside the road, entered
the lane of oncoming traffic, and struck a motorist's vehicle, and thus, the
state and the state employee were not entitled to sovereign immunity from
liability for the motorist's injuries. The state employee had parked the truck
as an activity incident to moving it from one location to another along his
designated maintenance route while fulfilling his responsibilities to the state.
Allison v. Manetta
An insurer had a duty to protect confidential personal
information provided by a consumer, where a consumer was required and agreed to
supply the insurer with highly sensitive personal information including her full
name, her social security number, and her date of birth, in her application for
life insurance policy, implicit in that agreement was a covenant to safeguard
that information, and the insurer recognized that obligation, and issued a
privacy notice to customers stating that it took great care in safeguarding
their personal information.
Daly v. Metropolitan Life Ins. Co.
The use of telephone testimony by an alien's former
wife, in a hearing on his application for adjustment of status, did not violate
a regulation providing that an evidentiary hearing on the merits could only be
conducted through a telephone conference with the consent of the alien after the
alien had been advised of the right to proceed in person. The "right to
proceed in person" belonged to the alien and referred to his appearance at
a hearing, not to appearances by witnesses. This appeared to be the first case
to address this argument.
Akinwande v. Ashcroft
News
In France, one of the top courts is due
to decide in the coming week whether a Lebanese-based Arabic channel should be
banned in France or not. The move follows a complaint by French Jewish groups
over a programme entitled the Criminal History of Zionism, which they say
incited hatred. And now the country's broadcast watchdog body wants al-Manar TV
removed from satellite transmissions for allegedly airing anti-Semitic views. A
lot of protest and agitation has resulted from Al-Manar and Lebanon's
government.
The Italian food giant Parmalat by
taking CSFB to task over a bond deal back in 2002 has launched a lawsuit against
its former auditors. It is expected to sue the US investment bank for about 250m
euros (£168m; $202m). The dairy group is seeking to recover billions of euros
from former financial backers who, administrators claim, helped drive it towards
insolvency.
A jury which included US talk show host
Oprah Winfrey convicted a man of murder after two hours of deliberation.
Winfrey, 50, was paid $17.20 per day to sit on the Chicago jury which convicted
Dion Coleman, 27, of first-degree murder. He could face a life sentence. She is
now planning to do a show about the trial with her fellow jurors. Winfrey's
presence on the jury meant huge media coverage of the trial, which the presenter
said was a distraction.
Croatia's apex court has ordered a
retrial of eight former military policemen who were acquitted of killing and
torturing Serb prisoners. The eight defendants are accused of random arrests and
the killing and beating of prisoners in the Lora military prison in 1992. At the
time, Croatia was fighting Croatian Serbs opposed to independence. The eight
were charged with killing two ethnic Serb civilians held at the prison in Split
and torturing several others in 1992. This has put Croatia's legal system under
close scrutiny as it strives towards EU membership.
The director general of the
Confederation of British Industry has said that the MPs in charge of checking
European laws are "asleep on the job". He has called for more
attention to be paid to Brussels legislation, as half the laws affecting UK
firms are drawn up by the European Commission. He said government measures to
combat the problem did "not go far enough".
Radical Muslim cleric Abu Hamza al-Masri
is all set to face court in London via a video link in the coming week. Mr
Abu Hamza is being held at the Belmarsh high security prison as he fights
extradition to the US on charges related to terrorism. He is accused of trying
to set up a terrorist training camp and involvement in a kidnapping in which
three Britons were killed. Under current UK rules Mr Abu Hamza cannot be
extradited to face execution overseas and any such sentence, if imposed, would
not be carried out.
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Department of Revenue
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Draft Circular No: /2004
(F.No.500/67/2003-FTD) Dated 09.08.2004: The Department of Revenue vide the
above circular deals with the matter of taxation of IT Enabled Business Process
Outsouring Units in India. It states that a non-resident entity having a
business connection with the resident (Indian) entity would be treated as the
Permanent Establishment of the non-resident entity. The non-resident entity or
the foreign company will be liable to tax in India only if the IT enabled BPO
unit in India constitutes its Permanent Establishment and in determining the
profits attributable to an IT enabled BPO unit constituting a Permanent
Establishment, it will be necessary to determine the price of the services
rendered by the Permanent Establishment to the Head office or by Head office to
the Permanent Establishment on the basis of ‘arm’s length principle’.
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Department of Economic Affairs
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Notification No : SO925(E) Dated 13.08.2004:
The Central Government on an application made by the Reserve Bank of India had
made an order of Moratorium in respect of the Global Trust Bank Limited,
Secunderabad, Andhra Pradesh. The RBI and had prepared a Scheme for the amalgamation of
the Global Trust Bank Limited with the Oriental Bank of Commerce. The Central
Govt vide Notification No: SO925(E) Dated 13.08.2004 sanctions the Global Trust
Bank Limited (Amalgamation with Oriental Bank of Commerce) Scheme, 2004.
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RBI
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Circular No :
DNBS(PD)C.C.No.43/05.02/2004-05 Dated 10.08.2004: The Reserve Bank of India vide
the Non Banking Financial Companies Prudential Norms (Reserve Bank) Directions,
1998 had advised every NBFC to prepare its Balance Sheet and profit and loss
account as on March 31 every year but few companies have obtained directly from
Registrar of Companies (ROC) the permission for extension of the financial year
as required under Section 210(3) read with Section 116(1) of the companies Act,
1956. The Rbi in order to obviate the instances of the above nature vide
Circular No : DNBS(PD)C.C.No.43/05.02/2004-05 Dated 10.08.2004 makes it clear
that whenever an NBFC intends to extend the date of its Balance Sheet as per
provisions of the Companies Act, it should take prior approval of the RBI before
approaching the ROC for this purpose and that even in the cases where RBI and
RoC grant extension of time, the company would be required to furnish to RBI a
Proforma Balance Sheet (unaudited ) as on March 31 of the year and the statutory
returns due on the above date.
Circular No: A.P. (DIR Series)
Circular No. 7 Dated 16.08.2004: The Reserve Bank of India vide Circular No: A.P.
(DIR Series) Circular No. 7 Dated 16.08.2004 notifies that the Export-Import
Bank of India (Exim Bank) has concluded an agreement with Hungarian
Export-Import Bank Ltd., Hungary on November 07, 2003 by which the latter is
allowed a Line of Credit (LOC) upto an aggregate sum of USD 10 million (US
Dollar ten million only). The credit agreement which has become effective from
July 22, 2004 will be available for financing export of capital and engineering
goods, technologies, industrial manufactures and related services and any other
goods of Indian origin, which may be agreed upon between Exim Bank and the
borrower.
Circular No:
DBODNo.Dir.BC.32/13.07.05/2004-05 Dated 17.08.2004: The Reserve Bank of India
vide circular DBOD No.Dir.BC.107/13.03.00/2000-01 dated April 19, 2001 had
advised that with effect from October 31, 2001, banks, financial institutions,
primary dealers and satellite dealers should make fresh investments and hold
bonds and debentures, privately placed or otherwise, only in dematerialized form
and that Outstanding investments in scrip forms should also be converted into
dematerialized form by June 30, 2002. It also stated that equity instruments
would be held by the above institutions only in dematerialized form from a date
to be notified by Reserve Bank in consultation with SEBI. The RBI vide Circular
No: DBODNo.Dir.BC.32/13.07.05/2004-05 Dated 17.08.2004 states that after
consultation with SEBI it has been decided that banks/ financial institutions
should convert all their equity holding into dematerialized form by the end of
December 2004 and that banks should convert all their equity holding in scrip
form into dematerialized form by December 31, 2004.
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DGFT
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Public Notice No: 75
(RE-2003)/2002-07 Dated 10.08.2004: The Director General of Foreign Trade vide
the above notice makes amendment in the Handbook of Procedures (Vol.1) by which
the list of items prohibited for export to Libya stands withdrawn. It states
that unless specifically stated the import/export will be valid from/to any
country; however, import/export of arms and related material from/to Iraq shall
be prohibited.
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Ministry of Chemicals and Fertilizers
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Order No : SO922(E) Dated
13.08.2004: The National Pharmaceutical Pricing Authority under the Ministry of
Chemicals and Fertilizers vide the above order fixes the price of
Dextropropoxyphene Hcl at 3997.00/KG and Dextropropoxyphene Napsylate at
5357.00/KG exclusive of excise duty and local taxes in exercise of its powers
conferred by Drugs (Prices Control) Order, 1995 . The price/revised price shall
be made effective within 15 days from the date of this order.
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Telecom Regulatory
Authority of India (TRAI)
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Press Release No: 52/2004 Dated
10.08.2004: The Telecom Regulatory Authority of India vide the above press
release notifies its recommendation for an Office of Ombudsman in the
Telecommunication Sector. This is with the intention of giving the consumers the
benefit of quick redressal of complaints without taking away the option of
approaching Consumer Courts which would take a longer time for redressal of the
complaint. The Authority recommends to the Government that such an institution
needs to be established, especially because the prevailing structure needed
supplementing to deal with the consumer complaints in the telecom sector.
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Press Information Bureau
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Press Release Dated 16.08.2004: The
Central Govt introduced the Senior Citizens Savings Scheme, 2004 effective from
2nd August, 2004. By the above press release,
the Govt clarifies that the interest on accumulations in the Deposit Scheme for
Retiring Government Employees, 1989 and the Deposit Scheme for Retiring
Employees of Public Sector Companies, 1991 will be dealt with in the following
manner:-
i. Deposits in accounts
which have matured on or before the 13th day of September, 2004, shall cease
to earn any interest after the 13th day of September, 2004; and
ii. Deposits in accounts
maturing after the 13th day of September, 2004 shall also not earn any
interest for the period after the date of their maturity.
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Supreme Court |
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The State of Andhra Pradesh
questioned the correctness of the judgment rendered by a learned single
judge accepting the prayer made under Section 482 of the Code of
Criminal Procedure, 1973 and quashing proceedings initiated against the
respondents.
The main contention of the
respondents was that the maximum punishment provided for an offence
punishable under Section 7(1)(a)(ii) of the Essential Commodities Act,
1955 was one year and since the charge-sheet was filed after two years,
it was clearly barred by limitation. The contention of the appellant was
that the High Court had fallen into grave error by holding that the
maximum punishment for an offence relatable to Section 7(1)(a)(ii) was 1
year while it was in fact, 7 years. Therefore, on that score alone the
High Court's order was liable to set aside.
The Hon’ble Supreme Court
while setting aside the order of the High Court and allowing the appeal
held that, it could not be disputed and was not disputed by learned
counsel for the respondent that the maximum sentence for an offence
relatable to Section 7(1)(b)(ii) was not one year.
The appellant
questioned the legality of the judgment by a Division Bench of the
Rajasthan High Court, holding that the respondent was entitled to be
appointed on compassionate grounds.
The Hon’ble Supreme Court
while allowing the appeal, on humanitarian considerations held that,
unless some source of livelihood was provided, the family could not be
able to make both ends meet. Therefore provisions were made for giving
appointment to one of the dependants of the deceased who might be
eligible for appointment. However, the Court further said that such a
provision on grounds of compassionate employment was in the nature of an
exception to the general provisions, and did not unduly interfere with
the right of those other persons who were eligible for appointment.
The accused had
been charged of an offence punishable under Sections
302/120B of the Indian Penal Code, 1860. And was granted bail at a later
stage. The appellant questioned this grant of bail by the learned Single
Judge to the accused.
The appellants main contention
was that, without discussing the facts of the case, the High Court had
granted bail. The contention of the accused was that at the time of
hearing of the bail application, he was not named in the FIR and his
name was disclosed subsequently, after 3days, to be recorded under Section 161 of the
Code of Criminal Procedure, 1973.
The Hon’ble Court while
allowing the appeal held that, though detailed examination of the
evidence and elaborate documentation of the merits of the case was to be
avoided by the Court while passing orders on bail applications, yet a
Court while dealing with bail applications should be satisfied, whether
a prima facie case is made out or not. In such cases, exhaustive
exploration of the merits of the case was not necessary. The Court was
required to exercise its discretion in a judicious manner and not as a
matter of course. |
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High Courts |
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Goa
The complainant
had a confirmed ticket issued in his favour on 2.6.1996 from Goa to
Mumbai by Flight No. 9W 472. The complainant passed through the
security check and all the other formalities were completed on time.
But when the complainant was about to enter the aircraft, he was
informed that there wasn’t any available seat on the said flight.
This act of the opposite parities, forced the complainant to hire a
taxi from Goa to Mumbai, since he had to resume his duties on 3.6.1996.
Later the complainant issued a legal notice through his Advocate,
demanding compensation for the said act.
The Goa State Consumer Disputes
Redressal Commission while holding the opposite parties, jointly and
severally liable, held that this was clearly a case falling under the
term “deficiency in service” by the opposite parties, since they
had denied entry to the complainant, who had a confirmed ticket. As
regards the amount of compensation, the Commission held that the
complainant was entitled to refund of the ticket fare of Rs 2,500/- and
taxi charges from Goa to Mumbai of Rs 6, 000/-, as against the
complainants claim for an amount of Rs.1 lakh.
Delhi
The appellant no.
1 along with 3 others, died in a train accident on 18.12.1995 at the
Azadpur Railway Station alleging the negligence of the respondents,
Northern Railways. On the said day, there was a total failure of
electricity and all the passengers standing on the platform were to
cross the track for the incoming train. As soon as the passengers began
boarding the train, an Inspection Electric Locomotive and SLKR coach
came from the opposite side, without any lights and whistling. A number
of passengers were hit by the said train and 4 of them died on spot.
The appellants approached the Railway Claims Tribunal, Delhi but their
claim was dismissed on grounds that the Tribunal had no jurisdiction to
entertain such a claim. Therefore, the present appeal.
The Delhi High Court, while
examining the appeal held that it was the duty of Railways to take
adequate steps to warn the public of the approaching train, so that the
accident could be avoided. As regards the amount of compensation
payable, the Court ordered payment of Rs. 4, 75, 200/-. In addition,
they held that the appellants were also entitled to interest at the
rate of 6% per annum from the date of death till the payment is made.
Karnataka
The main issue
that arose for consideration was whether the petitioner was entitled to
custody of the minor child. The Karnataka High Court while deciding the
issue held that while entrusting the custody of a minor child to one of
the parents, all relevant circumstances including social and religious
environment of the family, the quality of immediate neighbourhood,
locality in which a particular parent resides, financial position of
the parties, education facilities for the minor concerned and all other
circumstances and factors must be taken into consideration.
This case involved the
repudiation of an insurance contract by the LIC on the ground that the
insured had suppressed awareness of being HIV positive. The Court while
disposing the petition held that the onus of proving any allegation of
fraud is on the person pleading fraud, for which cogent evidence must
be produced. And since the materials produced before the Court were not
enough to establish the alleged fraud, the Court directed LIC to
deposit the amount payable under the policy in a nationalized bank for
3 years.
The main issue was
regarding the amount of compensation payable incase of serious injuries
to a female minor child aged 4 years. The Court while deciding the
issue held that in cases of serious injuries, the injured, unless
unconscious will be entitled to higher compensation in comparison to
the compensation, which would go to the deceased. They further held
that no amount of money can renew the physical frame that had been
shattered, and with which the appellant would have to survive the rest
of her life. Therefore the Court directed to award Rs 1 lakh towards
loss of amenities. In addition, the Court while taking into
consideration, the length of the treatment, surgeries involved etc,
awarded a sum of Rs 25, 000/- towards medical expenses and Rs. 15,
000/- toward attendant charges including boards and lodging charges.
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