International Legal Cases and News

• 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.

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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.

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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.

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Vitthal Sahakari Sakhar v. Assistant Provident Fund Commissioner, Special Recovery Officer, Aurangabad,....

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.

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Bombay High Court- 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.

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Supreme Court- 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.

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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.

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International Legal Cases and News

• Avron J. Arave, Worden v. Maxwell Hoffman
  Maxwell Hoffman, the respondent was convicted of first-degree murder and sentenced to death. He had requested from the federal for habeas relief on the grounds that his counsel had been ineffective during both pre-trial plea-bargaining and the sentencing phase of his trial. So the court on finding the counsel ineffective on his client's trial told State of Idaho to resentence him. Then the convicted during the plea-bargaining requested to withdraw his claim of ineffective assistance of counsel and cancel his appeal so that he may proceed with the resentencing ordered by the District Court. The State therefore agrees that the instant motion to vacate and dismiss with prejudice moots Hoffman's claim of ineffective assistance of counsel during plea negotiations and asks that the motion of respondents be granted because his claim for ineffective assistance of counsel during pre-trial plea-bargaining is moot. The case was remanded to the United States Court of Appeals for the Ninth Circuit with directions that it instructs the United States District Court for the District of Idaho to dismiss the relevant claim with prejudice.
  
• CSX Transport Action, INC .v Georgia State Board of Equalization Et al.
  For tax purposes country board evaluates the commercial and industrial property under Georgia law, but public utilities such as petitioner railroad (CSX) are initially valued by the State. In 2001 the state Georgia used a different method for valuation to determine that the market value of CSX's in-state real property had increased 47 percent, resulting in a significantly higher ad valorem tax levy. CSX filed suit that state was barred to asses rail transportation property at a value that has a higher ratio to the property's true market value. CSX's property was taxed at a ratio of assessed-to-market value considerably more than 5 percent greater than the same ratio for the other in-state property. District Court declared that the Georgia had not discriminated against CSX because the State had used widely accepted valuation methods to arrive at its 2002 estimate of true market value. Held that the state act allows a railroad to attempt to show that state methods for determining the value of railroad property result in a discriminatory determination of true market value.

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RBI's CAB's E-Portal for ICT Based Financial Inclusion Launched

Press Release No : 2007-2008/829 Dated 20.12.2007: Reserve Bank of India has formally launched an e-portal on information and communication technology (ICT) enabled financial inclusion efforts of banks. The e-portal is envisaged to be a platform for sharing of knowledge and experience of banks to harness the power of information and communication technology (ICT) for reaching out to the unbanked population and, therefore, may have the potential to aid in leapfrogging the extension of formal financial services to the hitherto unserved population.

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SEBI- SEBI Proposes Simplification of Primary Issuance Process for Corporate Bonds

PR No.03/2008 dated 03.01.2008: SEBI has proposed simplification of the primary debt market issuance process. The Consultative Paper on "Draft SEBI (Issue and Listing of Debt Securities) Regulations, 2008" proposes to simplify the primary debt market issuance process with a view to developing a vibrant, dynamic and transparent corporate debt market in the country. Process simplified is expected to make primary debt issuance cost effective and less time consuming.
The paper emphasizes that due diligence, proper disclosures and credit rating will be key elements of corporate debt issuances, which will be ensured by SEBI mainly through certifications issued by the merchant bankers. Thus, enhanced responsibilities to merchant bankers for exercising due diligence and issuance of certificates in regard to new issuances and mandatory listing of private placement of debt under Section 67(3) of Companies Act. The Consultative Paper has proposed provisions for e-issuances of corporate debt and for introducing simplified listing requirements of debt for already listed issuer.

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PIB- Salient Features of The Scheduled Tribes and other Traditional Forest Dwellers Act

PIB dated 02.01.2008: Scheduled Tribes and other Traditional Forest Dwellers (recognition of forest rights) Act on 1 st Jan 2008, has finally paved the way to undo the injustice to tribals and other forest dwellers. Act confers right to cultivate forest land to the extent under occupation, the right to own, collect, use and dispose of minor forest produce, rights inside forests which are traditional and customary like grazing upon tribals and other forest dwellers Provided, they have been living in and depending on forests for their livelihood, for three generations prior to 13th December, 2005. It designates Gram Sabhas as competent authority for initiating the process of determining the nature and extent of individual or community forest rights that may be given to the scheduled tribes and other traditional forest dwellers.

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Delhi High Court- Canara Bank v. P. Umesh Pai

The date of birth of Respondent at the time of joining the service was recorded as 26th May 1940 on the basis of Senior School Leaving Certificate. Respondent filed a civil suit in Mangalore wherein Appellant bank was not a party. Decree was passed in the said suit wherein directions were issued to correct the date of birth of the Respondent as 26th October 1942. Respondent made representation to the Appellant bank for correction of his date of birth in service record, which was rejected on 4th April 1978 on the ground that there was no such provision in the rules of Appellant bank. The Respondent thereafter, kept quiet and when he was about to retire he made another representation for correction of his date of birth, which was also rejected by Appellant. Respondent filed Writ Petition which was allowed by learned Single Judge holding that Appellant bank was bound to give effect to the decree passed by Civil Court and also held that Appellant bank was not a necessary party in the said suit as it was a matter concerning School Board and State Government. Hence present appeal. Appellant contended there was delay in approaching the Writ Court and it should have been dismissed at threshold and secondly there was no provision in Rules for correction of date of birth. Held Decision rendered by the Civil Court cannot be said to be binding and effective on the bank for the bank cannot even file an appeal to prove and establish that the aforesaid direction for correction of the date of birth in the service record would not and cannot bind the bank to change the date of birth as entered in the service record of the bank. There is inordinate delay and laches on the part of the Appellant in approaching the writ Court of this Court. The Appellant after rejection of the first representation could and should have immediately approached the writ Court. The Respondent slept over his rights, if any, and accepted the position and only a few days before his date of retirement took up the plea once again by initially filing a representation and on rejection thereof by filing a Writ Petition. Successive representations after rejection of the first representation would not explain the delay. Such a Writ Petition should not have been entertained when filed only a few days prior to the date of retirement. It is apparent that the Writ Petition was filed with a delay of about 22 years and that also just before his retirement. In that view of the matter also the Respondent is not entitled to any relief in the Writ Petition.

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Delhi High Court- Naveen Sharma v. Medical Council of India and Anr. & Dr.Sunita Kumari v. Union of India and Ors

Appellant after completing his 10+2 underwent six years medical education in a medical university in Bulgaria, recognized by MCI, and was awarded degree in medicine in 2004. He applied for provisional registration under section 13(3) of Indian Medical Council Act, which was refused without assigning any reason. He filed Writ Petition for issuing directions to Respondents to grant provisional registration under Medical Council Act. Writ Petition was dismissed on the grounds that he did not obtain 50% marks in aggregate in Physics, Chemistry and Biology in +2 examination and was not 17 years of age when he joined medical university in Bulgaria. Hence, the present appeal. Respondent contended that Appellant was not covered by the relaxation granted by the Supreme as the Appellant has two disabilities and hence guidelines issued by Supreme Court granting exemption to students who do not meet minimum admission norms were not applicable to the Appellant. It was held that all students who had taken admission abroad prior to 15th March 2002 are allowed to appear in the screening test, if they can be granted exemption. Supreme Court has not stated in the said directions that students who do not meet one minimum eligibility norm prescribed by the Medical Council of India, will be granted exemption and students who do not meet more than one eligibility norm, will not be granted exemption.

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Supreme Court- Sarabjit Rick Singh v. Union of India (UOI)

The Appellant, an Indian citizen, holding an Indian Passport, is also a resident of United States of America. The Government of the United States of America made a formal request to the Government of India stating that the Appellant was wanted to stand trial in the U.S. District Court for drug trafficking and money laundering. Pursuant to the request made by the Government of the United States of America, he was arrested. The Government of India made a request to the Additional Chief Metropolitan Magistrate, New Delhi, to make an enquiry in respect of the alleged offences. On the premise that the formal request did not satisfy the requirements of Article 9 of the Extradition Treaty as well as Section 7 of the Act, he filed an application for supply of deficient documents and requested supply of copies thereof to lead his defence, which request was declined by the Magistrate. Extradition enquiry was directed to proceed only on the documents filed by the Respondent in the Trial Court subject to all legal consequences. The Additional Chief Metropolitan Magistrate recommended the extradition of the Appellant. A Writ Petition filed questioning the legality and validity of the Order was dismissed by a Division Bench of the Delhi High Court. Hence, the present appeal. The Apex Court held that article recovered was a psychotropic substance under the Narcotic Drugs and Psychotropic Substances Act, 1985, possession whereof by itself contributes an offence. Quantity recovered answers the description of commercial quantity. Whereas in a trial, the Court for the purpose of appreciation of evidence may have to shift the burden from stage to stage, such a procedure is not required to be adopted in an enquiry. For the purpose of Section 10, it is necessary to supply the copies of the documents to the fugitive criminal. The word "information" occurring in Section 7 could not mean an evidence which has been brought on record upon strict application of the provisions of the Evidence Act. Use of the terminology "evidence" in Section 7 of the Act must be read in the context of Section 10 and not de'hors the same. An information need not be a documentary evidence or an oral evidence as is understood under the Indian Evidence Act. Section 10 contemplates the copies of exhibits and depositions and official certificates of facts and judicial documents stating facts would, if duly authenticated, be received as evidence. The impugned order was accordingly upheld and appeal was dismissed.

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Supreme Court- Everest Wools Pvt. Ltd. and Ors. v. U.P. Financial Corporation and Ors.

The Appellant-company applied for re-scheduling of loan and the same was granted. However, the entire loan was recalled not only because the Appellants were defaulters but also on the allegation that they had purchased second hand plant and machinery from another financial institution in breach of the contract. On enquiry, the allegations against the Appellant-company were found to be incorrect; where after a request was made by the Appellant-company to the Financial Corporation for handing over the possession of the unit to it as also for waiver of interest etc. The Corporation, however, invoked the guarantees executed by the Directors of the Appellant-company. During this period, there were reported cases of theft of machinery. On appeal, a Division Bench of the High Court, on a finding that the Appellants had been trying to evade payment of the amounts under the personal guarantee bonds, which had been invoked by the Corporation, the recovery proceedings initiated by it cannot be stopped, dismissed the Writ Petition. Hence, the present appeal. The Apex Court held that when the Corporation takes over possession of the plant and machinery in exercise of its statutory power, apart from its obligation as a "bailee", it also acts as a "trustee" - for taking recourse to sale of the unit, where the possession of the plant and machinery had been taken of an on-going concern, an extra care on the part of the authorities of the Financial Corporation is expected. The impugned judgment was accordingly set aside. Matters were remitted back to the High Court for fresh consideration.

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