|
Legislative and Regulatory Update
|
You
now have the option of customizing
your manupatra round-up .This means that you get updates
on the areas of interest that you select .You may change your
preferences at any time you wish to. If you do not customize
your round up you will continue to get the updates on all
areas
To
customize your round-up now click here.
_____________________________________________________________________ |
|
India Centric
Online Legal & Business Database
Bringing
forth new efficiency and unparalleled results to research
efforts. |
| In This Issue |
|
[No.136]
October 10,
2005 |
|
|
|
|
To keep you informed about the latest Legislative
and Regulatory information manupatra.com
publishes this e-roundup highlighting the recent changes
brought about by the Notifications/Acts/Bills /Ordinances
etc.
About
manupatra.com
../
provides comprehensive and easy to use legal and related
information over the Internet .Our database covers Central
Laws , Judgments of Supreme Court and High Court (full
text of the judgments from 1950 onwards ), Orders of
Tribunals , Bills , Notifications, Circulars and
more
Key features of manupatra are
 |
Content is derived from reliable primary and
secondary sources |
|
Database is updated on a daily
basis |
|
Electronic Ready Reckoner to view the
judgments under a particular section of an Act /
Subject |
|
Powerful search engine with user friendly
interfaces |
|
Search in any one court/year or multiple
courts/year |
|
Hyper-linking of
documents |
|
Updated
modules on WTO, Anti Dumping, Arbitration,
Investment Destinations Abroad, Capital Markets,
Taxation, Environment, Cyber & IT Laws, IPR,
Corporate Laws, Industrial Policies, Foreign
Trade,
Forex & Banking and
more |
For subscription to manupatra.com or for more
details please log onto ../
or call us at 0120 2531811 or send an email to : contact@manupatra.com
If at any stage you wish to stop receiving the
e-roundup please click here to unsubscribe. |
|
| |
|
Supreme
Court |
-
M.M. Malhotra
Vs. Union of India (UOI) and Ors.
Appellant, a Pilot
Officer in the Logistics Branch of Indian Air Force, called in question legality
of the judgment rendered by a Division Bench of the Bombay High Court (Nagpur
Bench) dismissing the writ petition filed by him holding that the order of
compulsory retirement passed by the authorities was in order. On consideration
of materials, it was observed that there was irrefutable evidence of plural
marriage and disgraceful conduct of not only sleeping with another lady in the
presence of his legally wedded wife, but also use of criminal force against his
wife. The order of compulsory retirement was passed.
After going into the
details of the facts of the case it was observed by the Apex Court that under
the Scheme of the Air Force Act, 1950, and the Rules any act of misconduct of an
officer involving moral turpitude and/or amounting to offence could be dealt
with in two ways. It could be by way of disciplinary action i.e. Summary
Disposal of Charges and Court-Martial or administratively under Sections 18 and
19 of the Act. While dealing with the matter under Section 19 of the Act, the
procedure contained in the Rule 16 of the Rules had to be followed. The rule
incorporated principles of natural justice i.e. issuance of show-cause notice,
consideration of reply. Para 667(b) of the Regulations for Air Force, 1964 on
which the appellant relied no doubt stipulated initiation of action on the part
of the Commanding Officer to bring the offender to trial by the Court-Martial.
In a given case, however, considering the nature of the accusations and the type
of evidence a decision could be taken to deal with the case administratively in
terms of Rule 16(4) of the Rules. In the instant case it was concluded that it
would neither be expedient nor practicable to have trial by Court-Martial and
therefore, the action was taken by departmental proceedings. The residual
question whether there was need for remand to the authorities to re-consider the
question of punishment once it is held that plural marriage was not established.
It was opined by the Hon’ able Court that normally, when the foundation for an
order was partially held not in accordance with law, reconsideration of the
quantum of punishment could be directed. But that was not the invariable rule.
If the Court on considering the material before it concluded that the punishment
awarded was not shockingly disproportionate it could maintain the order. In the
instant case the findings of the disciplinary authority showed as to how the
acts of the appellant were clearly unbecoming of a member of disciplined force
and his continuance would be prejudicial to good order and discipline.
Writ petitions were filed
challenging constitutional validity of the Proclamation dated 23rd
May, 2005, whereby Legislative Assembly of the State of Bihar was dissolved with
immediate effect. Mr. Soli J. Sorabjee, Senior Advocate and other advocates
appearing-in-person made elaborate submissions in support of the challenge to
the impugned action of dismissing the assembly. On the other hand, Mr. Milon K.
Banerjee, Attorney-General for India, Mr. Goolam E. Vahanavati, Solicitor
General and Mr. Gopal Subramaniam, Additional Solicitor General appearing for
Union of India and Mr. P.P. Rao, Senior Advocate appearing for the State of
Bihar also made elaborate submissions supporting the impugned Proclamation dated
23rd May, 2005. Many intricate and important questions of law having far
reaching impact had been addressed from both sides. After the conclusion of the
hearing of oral arguments, learned counsel also filed written submissions. Fresh
elections in State of Bihar had been notified. As per press note dated 3rd
September, 2005 issued by Election Commission of India, the schedule for general
elections to the Legislative Assembly of Bihar had been announced. According to
it, the polling is to take place in four phases commencing from 18th October,
2005 and ending with the fourth phase voting on 19thNovember, 2005. As per the
said press note, the date of Notification for first and second phase of poll was
23rd September and 28th September, 2005, date of poll being 18th October, 2005
and 26th October, 2005 respectively. Notifications for third and fourth phases
of poll are to be issued on 19th and 26th October, 2005 respectively.
The Apex Court
observed that keeping in view the questions involved, the pronouncement of
judgment with detailed reasons would likely take some time and, therefore, at
that stage, pronounced this brief order as the order of the court to be followed
by detailed reasons later. As per majority opinion, the court ruled the
Proclamation dated 23rd May, 2005 dissolving the Legislative Assembly of the
State of Bihar as unconstitutional. The court added that despite
unconstitutionality of the impugned Proclamation, and having regard to the facts
and circumstances of the case, the present was not a case where in exercise of
discretionary jurisdiction the status quo ante deserved to be ordered to
restored the Legislative Assembly as it stood on the date of Proclamation dated
7th March, 2005 whereunder it was kept under suspended animation.
This appeal
challenges the judgment of the High Court maintaining the conviction of the
appellants under section 22 of the Narcotics Drugs and Psychotropic Substances
Act, 1985 for possession of the banned drug Diazepam. The main grounds raised by
the appellants were that there was non-association of independent witnesses and
non-compliance with section 42 of the NDPS Act. The court relying on the
exhibited Panchnama negatived the first contention of the appellants holding
that the recovery of the contraband was acceptable. Regarding the second ground
the court differentiated between search and seizure carried out by officers of
gazetted ranks and those cases where junior officers without authorization carry
out search and seizure. The court held that the requirement of notice under
section 42 has to be confined to cases in the latter category.
Thus the appeal was
dismissed.
|
High Courts and Tribunals |
|
Andhra Pradesh
The issue in the
present case was whether an employer is bound to accept as correct that date of
birth which is declared as correct in a case by the Civil Court .
It was held that
service is based on contract between employer and employee. When the employee at
the time of entering into service declared his age as of a particular age and
the employer selected him on the basis of that age, employee is estopped from
asserting anything else later. The judgment of Civil Court declaring and thus
altering the date of birth is not binding on employer especially when employer
was not made party to suit.
The issue in the
present case was whether a mother, representing the minors, can file petition
under section 7 of
Guardian and Wards Act 1890 seeking permission to sell away the properties
standing in the name of minors?
It was was held that
father is a natural guardian while in this case the petition for permission to
sell away the properties was filed by the mother although with an affidavit
given by the father stating that he had no objection to the grant of relief
sought by the mother. Said affidavit was unfortunately not marked as document
nor the father of minor children was examined as witness to speak about the
contents of affidavit. In such a case the petition/appeal is to be treated as if
filed by incompetent person, hence dismissed.
CESTAT, Mumbai
Service tax
alongwith penalty was levied on the appellants for non-payment of service tax.
The issue that arose was whether the appellants could be made to pay service tax
alongwith penalty for the period prior to the amendment of Service Tax
Rules,1994.
It was held that it
is only through this amendment that the liability to pay Service was fastened
onto a service recipient and the said amendment is prospective, hence the
appellants cannot be made to pay for a period prior to the amendment.
CESTAT, Chennai
In the present case,
the non-duty paid goods were forcibly removed from the factory of the
appellants/ factory owners by outsiders and penalty for removing the goods
without payment of duty was levied on the appellants/factory owners under section 11AC of the
Central Excise Act, 1944. And hence the present appeal.
It was held that
forcible removal of goods from the factory by an outsider does not make the
factory owner liable to penalty. Rather penalty is to be imposed on the person
who forcibly removed the non-duty paid goods and has dealt with them. Hence
appeals were allowed.
Kerala
The applicant
suffered injuries while on job which resulted in amputation of his right hand
thumb, index and middle fingers. He was paid some compensation in full and final
settlement of the claims. Finding the compensation inadequate, applicant moved
the Court.
It was held that for
accepting the settlement also, the Commissioner has to consider whether due
compensation has been paid and if not paid, Commissioner must compel the
employer to pay balance amount even without an application by the party.
Compensation has to be calculated on the basis of the statutory provisions as
laid down by the Explanation II of the S. 4(1) of the Workmen’s Compensation
Act, 1923.
|
| PIB
|
|
Dated 06.10.2005:
Prime Minister, Dr. Manmohan Singh has inaugurated the Five-year Project for
Information and Communication Technology Enablement of Indian Judiciary. Dr.
Singh emphasized the need to increase the speed of disposal of cases and reduce
pendency and devise ways to ensure that justice becomes easier, faster and
cheaper. The project, which is worth Rs.854 crores, is based on the National
Policy and Action Plan prepared by the E-Committee for appropriate
implementation of ICT in courts across the country and their web-based
interlinking. The project will be implemented within a period of five years in
three phases – first two phases being of two years each and the third phase of
one year. While delivering the key note address, Shri Justice Lahoti said this
comprehensive Action Plan provides for diverse initiatives like provision of
computers with broadband internet access in all 2500 court complexes across the
country, laptops for approximately 15,000 District and subordinate court judges,
extensive ICT training to judges and court staff, extension of computer
facilities from filing counters to judges’ chambers and residential offices,
gradual extension of these facilities to all branches and sections of court
Registry, facilities for video conferencing between under-trials and the courts,
digital archiving, use of advanced ICT tools including biometric facilities,
information gateway interface between the court and the governmental agencies,
and providing the Wi-Fi system at Supreme Court and High Courts.
|
RBI |
|
UBD
Circular No.
UBD.PCB.CIR.No.14/13.05.000/05-06 Dated 06.10.2005: The Reserve Bank of India
vide the above circular has decided to exclude the following categories of
director related loans from the purview of the instructions issued vide their
circulars UBD.PCB.CIR.50/13.05.00/2002-03 and UBD.BPD.Cir.No. 54/13.05.00/02-03
dated April 29, 2003 and June 24, 2003 respectively:
i.regular
employee-related loans to staff directors on the Board of UCBs;
ii.normal loans as
applicable to members to the directors on the Boards of salary earners’
co-operative banks and
iii.normal
employee-related loans to Managing Directors of Multi-State co-operative banks.
RPCD
Circular No.
RPCD.PLFS.BC.No.43/05.04.02/ 2005-06 Dated 09.10.2005: The Reserve Bank of India
has advised the convenor bank of the State Level Bankers’ Committee (SLBC) of
the State of Jammu & Kashmir to assess the situation and take immediate
measures to provide appropriate relief to the people affected by Earthquake in
terms of their standing guidelines, videtheir Master Circular RPCD.No.PS.BC.6
/05.04.02-2005-06 dated July 1, 2005.In terms of the Master Circular
RPCD.No.PS.BC.6 /05.04.02-2005-06 dated July 1, 2005 banks may extend general
consumption loans up to Rs.1000 to eligible persons in the areas affected by
natural calamity in the states where the state governments have constituted risk
funds for such lending by commercial banks. However banks may consider
increasing the limit of consumption loan to be provided to the affected persons
in the state up to Rs. 5,000 without any collateral.
|
Ministry of
Personnel, Public Grievances and Pensions |
|
Personnel and
Training
Notification No.
GSR617 (E) Dated 30.09.2005: The Central Government, after consultation with the
Government of the States concerned, vide this notification, has brought forward
the All India Services (Death-Cum-Retirement Benefits) Amendment Rules, 2005
amending the All India Services (Death-Cum-Retirement Benefits) Rules,
1958.These rules shall come into force on the date of their publication in the
Official Gazette. The amendment was made in Sub-rule (1A) of Rule 16 of the All
India Services (Death-Cum-Retirement Benefits) Rules, 1958.
|
| Ministry of Finance |
|
CBEC Customs
Circular No. 38/2005
Dated 28.09.2005: Vide the above circular, CBEC has decided to adopt the ratio
of Hon’ble Supreme Court’s judgment in the case of M/s Pratibha Processors
Vs. U.O.I (1996 (88) E.L.T. 12 (SC), wherein the Apex Court has held that the
interest on warehoused goods is merely an accessory of the principal and, if the
principal is not recovered/payable, so is the interest on it. The interest under
Section 61 (2) of the Customs Act, 1962 has, thus, no independent or separate
existence. The Board has further decided to delete para 2 (xii) of the Board’s
guidelines dated 27.12.1993 (i.e. goods warehoused and subsequently re-exported
under Section 69 of the Customs Act, 1962) from the eligible cases for waiver of
interest.
Company Affairs
Notification
No.GSR610 (E) Dated 23.09.2005: The Central Government makes amendments in the
Companies Regulations, 1956, to bring fore the Companies (Amendment)
Regulations, 2005. The amendments relate to Regulation 2.These regulations shall
come into force on the date of their publication in the Official Gazette.
|
| Ministry of Social
Justice and Empowerment |
|
Notification No.
SO1376 (E) Dated 14.09.2005: The Central Government vide the above notification
notified the Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) (Amendment) Rules, 2005. The rules shall come
into force on the date of their publication in the Official Gazette. Amendments
were made in Rule 13 and 24 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Rules, 1996.
|
| SEBI |
|
Mutual Fund
Circular No.
SEBI/IMD/CIR No.3/50241/05Dated 26.09.2005: Vide the above circular, it has been
decided that in mutual fund schemes, where disclosure pertaining to investment
in ADRs/GDRs/foreign securities has not been made in the offer document, then in
such cases prior to investment in ADRs/GDRs /foreign securities for the first
time, the AMC shall ensure that a written communication about the proposed
investment is sent to each unit holder and an advertisement is given in one
English daily newspaper having nationwide circulation as well as in a newspaper
published in the language of the region where the Head Office of the mutual fund
is situated.
|
| International Legal
Cases and News |
|
Cases
Property Law
The California 2nd
Appellate Court in the above case reversed the judgment in favor of
defendant-tenant. The trial Court in the case had ordered abatement of rent but
the Appellate Court ruled that the trial court exceeded its authority in
ordering abatement of rent
Tort Law
In the above suit
involving allegation of negligent medical care, the apportionment of damages
between the defendants was reversed by the California 2nd Appellate District
Court on the ground that the trial court improperly used a general verdict form
which did not distinguish between medical negligence and informed consent.
Constitutional Law
In the above suit
for defamation action, an order for disclosure of plaintiff's identity was
reversed by the Delaware Appellate Court where the trial judge incorrectly
applied a good faith standard which did not sufficiently protect plaintiff's
First Amendment right to speak anonymously.
In the above case,
the plaintiff's petition for habeas corpus was denied by the Appellate Court on
the ground that the plaintiff adduced no evidence to show that his
constitutional rights were violated at either the guilt or penalty phase of his
trial.
Criminal Law &
Procedure
In the above
criminal suit involving a drug conviction the defendant’s sentence is reversed
by the Appeal Court on the ground that victim-impact testimony was improperly
admitted by the trial court and the same substantially affected the jury's
verdict.
News
The bill, which bans
the sale or rental of violent video games to minors under the age of seventeen,
has been signed by the California Governor Arnold Schwarzenegger. The bill
requires the retailers to label violent games as such and provides for several
factors to be used to determine whether a video game is violent including
"infliction of gratuitous violence upon the victim beyond that necessary to
commit the killing, needless mutilation of the victim’s body, and the
helplessness of the victim”. This bill may be challenged by the video game
industry in court.
The US court of
appeal has rejected the Bush administration’s interpretation of Environmental
Protection Agency’s (EPA) requirements that weakened the EPA’s ability to
monitor air pollution from industrial sources. Following the lawsuit brought by
several environmental protection organizations, the court held that the
regulations as interpreted by the settlement violate the notice-and-comment
requirements of the Administrative Procedure Act by limiting public discussion
of monitoring requirements before they are implemented by the EPA and state
authorities.
As one of the
country’s most progressive states, Oregon is all set to defend its landmark
assisted suicide law before the Supreme Court thereby challenging the staunchly
conservative Bush administration in a legal battle over America's first such
law. As per the Bush administration, the Oregon law violates federal drug laws
because assisted suicide is not a legitimate use of controlled substances,
whereas the state contends that it is up to the state and not the federal
government, to regulate medical practices, including assisted suicide.
|
|
|
|
Disclaimer |
|
(1) While
all reasonable care has been taken to ensure that the
information provided in the "round up" and on the website is
fair and accurate the company and its promoters and employees
shall not in any way be responsible for the consequences of any
action taken on the basis of reliance upon the contents of this
"round up". |
|
(2) This is not a Spam
mail. You have received this mail because you have either
requested for it or someone must have suggested your name under
our various referral programs. Since India has no anti-spamming
law, we refer to the US directive, which states that a mail
cannot be considered Spam if it contains the sender's contact
information, which this mail does. In case this mail doesn't
concern you, please unsubscribe from mailing list.
Feedback
| |
