Legislative and Regulatory Update
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In This Issue
June 20, 2006
Supreme Court High Courts Ministry of Finance RBI TRAI International Cases & News
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Hotel and Restaurant Karamchari Sangh Vs. Gulmarg Hotel and Ors.
On the basis of a complaint received from the appellant, the Assistant Labour Commissioner issued a notice to the respondent stating that it had not paid outstanding wages to the employees/workmen of the establishment amounting to more than Rs. 60,000 and to show cause why recovery under the Payment of Wages Act shall not be made. The Respondent employer submitted a reply stating that some of the employees were absconding and that some of the employees had been paid their wages and the amount due was less than Rs. 50,000/. Therefore, it was submitted that the provisions of the Act cannot be applied. The Assistant Labour Commissioner after considering the plea of the employer rejected the same by holding that merely because a part of the amount claimed had been paid subsequently does not mean that it can affect the jurisdiction of concerned authority to issue a certificate for recovery. The Respondent employer then filed a Writ Petition before the Allahabad High Court questioning the correctness of the order. The High Court relying on the decision in Modi Industries Ltd. v. State of U.P. and Ors held that at the time of adjudication, the amount in default did not exceed Rs. 50,000/- and therefore the proceedings were not maintainable. Hence the present appeal was preferred by the Appellant to the Supreme Court. The Honourable Supreme Court after considering the contentions of both the parties held that it is clear from the provisions of the Payment of Wages Act that the Act is intended to ensure timely payment of wages. Secondly, the Act deals with defaults in payment of the wage-bill of all the workmen in the establishment. It is not meant to provide a remedy for the default in payment of wages of individual workmen. Therefore, the Court allowed the appeal restoring the order passed by the Assistant Labour Commissioner and quashed the impugned order passed by the High Court.
Senthamilselvi Vs. State of Tamil Nadu and Anr.
The present appeal was filed against the judgement of the Madras High Court which quashed the Habeas Corpus Petition filed by the Appellant against the order of detention passed in respect of her son. The contention of the Appellant was that there was delay in disposal of the representation and further that the detenu had not filed any application for bail. Therefore, the detaining authority had committed error in holding that there was imminent possibility of his coming out on bail. Further the detaining authority had relied upon the confessional statement of a co-accused without supplying copy thereof. The High Court did not find any substance in the aforesaid submissions and dismissed the petition and hence the present appeal was preferred before the Supreme Court. The Supreme Court after considering the facts and circumstances came to the conclusion that the factual scenario of the case indicated that the representation was dealt with utmost expedition and if there is no negligence or callous inaction or avoidable red-tapism on the facts of a case, the Court would not interfere. There is also no substance in the plea that the confessional statement of the co-accused was relied upon, but the copy thereof was not supplied. Therefore, the appeal was dismissed.
Union of India (UOI) and Ors. Vs. M. Mathivanan
The Respondent in the present appeal was selected for recruitment to the cadre of Postal Assistant and was appointed as Postal Assistant on daily wages basis. He later got enrolled in Army Postal Services. It was the case of the Respondent that a scheme called Time Bound Promotion Scheme was formulated by the authorities vide a Memorandum dated December 17, 1983 which inter alia provided placing of officers in the 'next higher grade' who had completed sixteen years of service. The Respondent applied for the same but his application was rejected. His appeal against the said order also came to be dismissed by the Superintendent of Post Offices. Being aggrieved by the said orders, the Respondent approached the Central Administrative Tribunal, Madras by filing Original Application which allowed his application holding that his services ought to have been considered for the benefit of Time Bound Promotion Scheme since he had completed sixteen years. A Writ Petition was then filed by the appellant, which was dismissed by the High Court of Madras and hence the present appeal. The contention of the appellant was that the Tribunal as well as the High Court committed an error of law in not considering in its proper perspective, the Time Bound Promotion Scheme and by granting benefit of the said scheme to the respondent. The Honourable Supreme Court after considering the contention of the parties held that the Government, while imposing an eligibility condition of 16 years' service for being entitled to time-bound promotion, is not intending to benefit only one section of employees in the category and deny it to another section of employees in the same category. Since the Respondent had completed sixteen years of service, he would be entitled to the benefit of Time Bound Promotion Scheme and the action of the authorities in not granting the said benefit was illegal and contrary to law. For the foregoing reasons, the appeal was dismissed.
Amity School of Engineering and Technology Vs. All India Council of Technical Education and Ors.
The petitioner has sought interim relief against the orders of respondent by which the petitioner institution was placed in the category of “No Admission'` for the academic year 2006-07. The petitioners also sought for issuance of direction to respondents to permit petitioners to take admissions in the academic year 2006-2007 and to direct the respondent to remove remarks of “No Admission” for the academic year 2006-07 from its website shown against the name of the petitioner.
The High Court on appreciation of facts and circumstances of cases held that the plaintiff has made prima facie case. It was observed that it was not the case for grant of approval and as the petitioner was granted approval from time to time and was only asked to rectify three deficiencies, it would cause irreparable injury if petitioner were not granted interim relief. In order to determine irreparable loss what needed to be considered was whether the deficiencies sought to be rectified are relax able or not. One of the main deficiencies pointed out by respondents was inadequacy of faculty. It was a relaxable norm by giving a warning notice as to have proper cadre strength in proportion to faculty available. Hence, balance of convenience was held to be in favour of petitioner and was held that he would suffer irreparable injury in case if directions prayed for were not granted.
Bata India Ltd. Vs. V Addl. Sessions Judge and 2 Ors.
The landlady initiated release proceedings against petitioner on the ground of bonafide requirement of suit premises under Section 21 of U.P. Rent Control Act, 1972. The landlady contented that since she had glass business she was in need for a show room in main market. Her claim being rejected by the prescribed authority, an appeal was preferred in rent Control Court. The Rent control court setting aside the judgment and order of the prescribed authority , ordered release of suit premises in favour of landlady. Hence, the present appeal was preferred.
The High Court observed that the need of a manufacturer for a show room in the main market could never be said to be not bonafide. The appellate Authority has rightly ordered for release of shop in favour of landlady. But the court modified the order of the Appellate Authority and held that as the frontage of the shop is about 27 feet, shop in dispute can reasonably be divided in two portions. Hence, the release application of the landlady was allowed in respect of half portion of the shop in dispute. The rent was also raised to Rs 2000/- per month.
Amrendra Verma, Dharmendra Verma, Ranjan Verma and Anita Verma Vs. The State of Bihar
The present criminal case was directed against the order passed by the Additional Sessions Judge, whereby the bail bonds of the accused persons who were charged under Sections 147, 148, 149, 302, 307 and 120B of the Indian Penal Code, were cancelled and were directed for issuance of bailable and non-bailable warrants of arrest against them. Earlier in this case they were granted bail even before the case was committed to the Court of Session. While committing the case to the Court of Session, the Magistrate did not indicate any date of appearance of the petitioners. The issue determinable was that whether there is any legal impediment in the way of the Committing Courts in fixing the date of appearance of the accused before the Session Court, while committing the case.
The High Court relying on the Section 209 of Cr. P.C. held that the order for commitment of the case to Court of Session, can be passed only when the accused appears or is brought before the learned Magistrate. The concept that the inferior court could not fix the date of appearance of an accused before the superior court was not acceptable. Hence, it was stated that at the time of commitment of the case to the Court of Session, accused persons are obliged to appear before the learned Magistrate and only in their presence, the case could be committed to the Court of Session.
Ministry of Finance
Amalgamation of Ranchi, Singhbhum, Hazaribagh, Giridih Kshetriya Gramin Bank into Jharkhand Gramin Bank
Notification No SO878(E) Dated 12.06.2006: The Department of Economic Affairs vide the above notification notifies that in view of public interest and development of the area, the regional rural banks in Jharkand (Kshetriya Gramin Bank, Singhbhum Kshetriya Gramin Bank, Hazaribagh Kshetriya. Gramin Bank and Giridih Kshetriya Gramin Bank) are amalgamated into a single regional Rural Bank called Jharkhand Gramin Bank with its headquarters in Ranchi. From the effective date of amalgamation, the undertakings of the transferor Regional Rural Banks shall be transferred to and shall vest in the amalgamated transferee Regional Rural Bank.
Annual Policy Statement for the year 2006-07 – Liberalisation and Simplification of the Branch Licensing Policy for Regional Rural Banks (RRBs) and Conduct of Foreign Exchange Business by them as Limited Authorised Dealers
Circular No. RPCD.CO.RRB.No.BL.BC.90/03.05.90-A/2005-06 Dated 13.06.2006: As per Master Circular RPCD,CO.RRB.No.BL.BC.19/03.05.90-A/ 2005-06 dated July 15, 2005, RBI had directed that regional rural banks (RRBs) are required to submit their applications for opening, shifting or merger of branches to the Reserve Bank through the National Bank for Agriculture and Rural Development (NABARD) after following the prescribed procedure. As per the present circular, the RBI notifies that with a view to liberalise and simplify the procedure, the Empowered Committees (EC) for RRBs, constituted by the Reserve Bank at its Regional Offices would deliberate and make recommendation on such applications. The Reserve Bank would dispose of applications taking into account the EC's recommendation. Accordingly, RRBs should henceforth submit such applications to the respective Regional Offices of NABARD, with advance copies to the concerned Regional Office of the Reserve Bank. No separate approval of the sponsor bank is required to be taken. Further, approval of the sub-group of DCC will also not be required for opening of branches. However, in case of shifting / merger of branches, approval of the sub-group of DCC will be required. Also, requests from RRBs for conduct of foreign exchange business, as limited authorised dealers for current account transactions, would be considered by the Reserve Bank only after clearance by the Empowered Committee.
Foreign Exchange Dealers – Appointment/posting
Circular No. DBOD.PSBD. BC.88 /16.13.100/2005-06 Dated 14.06.2006: Vide the present circular, the Reserve Bank of India notifies that postings/appointments to the posts of Head of Treasury /International Division /Chief Dealer/Dealer can be done without any prior reference to the RBI provided that the Board of Banks are fully satisfied with the credentials of the appointee and banks had exercised due care and diligence in the matter of such appointment. As per prior circular DO.No.EC.AD&EM.883/02.03.71/95-96 dated May 27, 1996, the Exchange Control Department of RBI had advised banks to obtain prior concurrence of Reserve Bank on the matter of appointment to the above mentioned posts.
Telecom Regulatory Authority of India (TRAI)
Consultation Paper on Tariff Order for CAS areas
Press Release No. 56/2006 Dated 14.06.2006: The Telecom Regulatory Authority of India vide the above press release notifies the release of a consultation paper on amendments to the tariff order for CAS areas. On a petition filed by a group of Multi System Operators, the High Court of Delhi had directed that CAS be implemented in the three Metros of Mumbai, Kolkata and Delhi, subsequent to which it was suggested for fixation of ceilings for individual channels. Accordingly, the consultation paper deals with issues like fixation of maximum retail price for each individual channel and the methodology and principles to be adopted for the same.
International Legal Cases and News Cases
Brierton v. Department of Motor Vehicles
The California Appellate District Court in the present appeal upheld the denial of petition by the trial court for a writ of mandate by the plaintiff. The writ sought to prevent the Department of Motor Vehicles from enforcing an order of suspension against the plaintiff. The same was affirmed over claim that the suspension of plaintiff's driver's license under Vehicle Code1 section 13352(a)(3) violates the separation of powers doctrine as it requires a two-year suspension of driving privileges for anyone suffering two alcohol-related driving offense convictions within 10 years.
Brumit v. State of Texas
A sentence for aggravated sexual assault by the trial court was affirmed by the Texas Criminal Court of Appeals in the present criminal appeal suit. The same was affirmed over the defendant's contention that the trial court violated his due process rights under the Fourteenth Amendment and committed fundamental error by failing to function as an impartial tribunal for sentencing purposes.
World Wide Ass'n of Specialty Programs v. Pure, Inc.
In the present suit filed by the Association of Residential Treatment Programs for Troubled and At Risk Teenagers, the ruling of the trial court denying the plaintiff’s motion for new trial was affirmed by the Appellate Court. The suit was brought by the Association seeking damages, injunction for defamation per se and related claims. The ruling of the trial court was affirmed by the appellate court on the ground that the plaintiff’s claims of error were insufficient to justify a new trial. Also summary judgment to defendant on civil conspiracy claim is affirmed as plaintiff failed to produce sufficient evidence of a conspiracy.
Ugine & Alz Belgium v. US
The US Court of Appeals for the Federal Circuit in the present suit reversed a decision of the Court of International Trade denying a request of stainless steel importers for a preliminary injunction to prevent U.S. Customs from liquidating certain entries. The ground on which the ruling of the trial court was reversed was that the trial court erred in its analysis of the issue of irreparable harm.
Cap on Roaming Fees for Mobile phones by European Union
The European Union’s move to bring a legislation to end charges for incoming international calls on mobile phones on terms of unjustified high costs charged by mobile phone companies was termed as regulatory straitjacket” by the mobile phone companies. They claimed that the move could force them to offer services at a loss. The draft law by EU intends to stop firms from making exorbitant charges on customers for incoming calls when abroad and also intends to set an EU-wide price cap for making calls outside their home country.
Insider Trading Conviction of Soros upheld by French High Court
France's Court of Cassation, the highest court in the country upheld the conviction of American financier George Soros on insider trading charges. The Appeal Court had already convicted the financier on the said charges. The conviction was based on the fact that the Americal Financier in 1988 purchased French bank “Societe Generale’s” stock with the knowledge that the bank might be the object of a takeover bid and this according to the court broke the insider trading laws. The contention of Soros’s lawyers was that the France Regulatory Commission determined that the transaction did not violate French stock trading law or ethical rules.
2nd Countersuit for patent infringement filed by Apple Computer Inc against Creative Technology Ltd.
Apple Computer Inc., the iPod maker filed a second countersuit against Singapore-based Creative Technology Ltd seeking damages and a court order to halt patent infringement,. Earlier Creative Technology that deals in small media players had sued Apple for patent infringement and filed a complaint with a U.S. trade agency seeking to halt iPod sales. Apple's latest lawsuit allege that Creative was infringing on three of its patents involving the display of computer data, the editing of mobile data on a PC and the use of computer icons.
Arkansas ban on gay foster parents intended to protect interests of children
In a suit filed by four Arkansans citizens against the policy of the State of Arkansas banning gay marriages, they contended that the policy is unconstitutional. The bone of contention was that homosexuals who otherwise qualify as foster parents had been discriminated against by the policy. They argued that the ban violates right to privacy and equal protection enshrined within the state and U.S. constitutions. The State of Arkansas has banned gay marriages and its Child Welfare Agency bars unmarried couples living together from becoming foster parents. The contention of the state was that the policy is intended to protect the interests of children.
Prison terms for assassins of ex-president upheld by Serbian Court
The Serbian Supreme Court upheld 40-year prison sentences for four former members of a special police unit for the assassination of ex-Serbian President Ivan Stambolic in August 2000. The accused apparently took orders from then-Yugoslavian President Slobodan Milosevic for the assassination. Belgrade's special court convicted eight men of the assassination last year sentencing them each to 4 to 40 years in prison.
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