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[No.164] |
July
20, 2006 |
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Supreme
Court |
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The respondent in
the present case was a non-resident Indian who had placed a deposit of US$5000
vide FCNR (Foreign Currency Non-Resident) account with the appellant Bank. Upon
maturity of the deposit, the respondent requested the appellant bank to reinvest
the entire amount for another period of 3 years. Upon non receipt of any
information regarding the status of the deposit, the respondent filed a
complaint with the RBI and then to the State Consumer Disputes Redressal
Commission under Consumer Protection Act, 1986. The State Commission ruled in
favor of the respondent. The decree of the State Commission was affirmed by the
National Consumer Disputes Redressal Commission. Aggrieved by the said order,
the appellant filed the present appeal.
The appellant
contended that the respondent had deposited the said amount in FCNR account with
the bank but had prematurely withdrawn the deposit and therefore the deposit
could not be reinvested. The appellant bank placed reliance on the sale/purchase
register. The appellant also denied that the deposit receipt was kept in Safe
Custody and submitted that the demand for recovery of money was barred by
limitation. The appellant also submitted that the respondent was not a consumer
as defined under Section 2(1)(d) of the said 1986 Act. The appellant also
contended that under RBI rules, the bank was not bound to retain records after
eight years and that the burden was on the respondent to prove the alleged facts
regarding reinvestment. The respondent placing reliance on his passport
contended that he did not withdraw the deposit prematurely as he was not in
India at that time. He further alleged that a copy of the original FCNR was put
in the safe deposit vault and relied upon the deposit receipt memo retained by
the bank. The Supreme Court held that the claim of the respondent for money
decree with interest at the rate of 18% p.a. till realization was on the higher
side and inflative. The economic situation of the country has to be kept in mind
while passing a money decree by agencies under the Consumer Protection Act, 1986
as well as the question of appropriate rate of exchange and rate of interest
which the appellant was required to pay should also be looked into, which was
not done in this case. Therefore, the appeal was partly allowed and matter
remitted to the State Commission to pass decree in favour of the respondent
The father of the
respondent - applicant died in harness while working with the Power Development
Department of the appellant in 1987. After the death of his father, the
respondent-applicant applied for getting an appointment on compassionate ground
in 1991. The same was rejected by the Administrative Department of the appellant
in 1996 and the matter was communicated to the respondent.
The respondent filed
a writ petition in 1999 against the said order which came up for hearing before
a Single Judge who dismissed the petition. An appeal by way of Letters Patent
Appeal was filed against the said order and the Division Bench of the High Court
ruled in favour of the respondent-applicant. Aggrieved by the said Division
Bench Order, the appellants filed the present appeal. The appellants contended
that the Division Bench of the High Court committed clear error of law in
setting aside the order of the Single Judge. The appellants submitted that when
the matter regarding the non appointment of the applicant was communicated to
the applicant in1996, he did not challenge the decision at that point of time
and it was only after three years in 1999, the appellant approached the court.
Thus there was gross delay and laches on the part of the applicant in
approaching the court and invoking the writ jurisdiction of the High Court. The
respondent - applicant on the other hand submitted that the discretion was
exercised by the Division Bench of the High Court keeping in view the principles
of justice, equity and good conscience. The Bench was fully justified in
observing that when 'compassion' was sought, the approach of the Court should be
liberal and pragmatic rather than rigid and pedantic. The approach adopted by
the Division Bench in showing sympathy cannot be faulted with and the appeal
deserves to be dismissed. Held, when the Division Bench decided the matter, more
than fifteen years had passed from the date of death of the father of the
respondent-applicant. The said fact was indeed a relevant and material fact
which went to show that the family survived in spite of death of the employee.
The learned Single Judge was right in holding that though the order was passed
in 1996 it was not challenged by the applicant immediately. Hence, the appeal
was allowed.
The respondent in
the present case is working as a conductor with the appellant Transport
Corporation. The respondent was dismissed from service on grounds of drinking
while on duty, misappropriation of funds, causing financial loss and loss of
reputation to the appellant Corporation. The dismissal was done after a proper
inquiry was conducted by the appellant corporation. Aggrieved by this, the
respondent filed a case with the labour court which ruled in favour of the
respondent and reinstated him back into service even though the charge of
pilferage against the respondent was proved. The appellant corporation filed an
appeal against the said order in the High Court which was again ruled in favour
of the respondent. Hence the present appeal was filed in the Supreme Court by
the appellant corporation. The appellants contended that there is no precision
in the findings of the labour court and the High Court. The charges of pilferage
established against the respondent- workman was grave and has the effect of
disrupting the services of a public transport system. The appellant further
contended that any dereliction of duty in this regard is highly detrimental to
the financial well being of the appellant corporation and against public
interest. Held, that the High Court and the labour court miserably erred in not
considering that the respondent was in a drunken condition when there was no
denial on the part of the workmen to that effect. The order of reinstatement
passed by the labour court and affirmed by the High Court was contrary to law.
When a person is found guilty of misappropriating the Corporation's funds, there
is nothing wrong in the Corporation losing confidence or faith in such a person
and awarding a punishment of dismissal. Therefore, the Court set aside the
orders passed by the labour court and High Court and allowed the appeal.
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High Courts & Tribunal |
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Delhi
The present
petitions were filed by journalists, cameramen, correspondents, editorial
consultants, reporters and others who were allottes of government accommodation
under the Press Pool as they were aggrieved by the newly issued guidelines of
Cabinet Committee on Accommodation regarding allotment of accommodation to
accredited journalists and press-cameramen. They also assailed the notices
requiring them to vacate the premises allotted to them within six months. The
notices were served as the period of allotment has already expired and a
Screening Committee constituted to consider cases of allotment of government
accommodation to journalists from the Press Pool on vacation by the existing
allottees has recommended 16 cases of journalists and 8 press cameramen for
allotment of government accommodation.
The High Court
opined that the availability of accommodation in the press pool does not confer
a right to retain the accommodation in perpetuity contrary to the guidelines.
With regard to the contention that the guidelines could be revised or reviewed
only by the full Cabinet and not the Accommodation Committee of the Cabinet was
also not acceptable as it was the Cabinet Committee of Accommodation which has
been taking decisions with regard to changes regarding increase or decrease in
the Press Pool or to lay down the criteria of eligible and accredited
journalists or criteria with regard to entitlement of accommodation. The
committee does not suffer from any infirmity or lack of jurisdiction as the
guidelines issued by them is under the powers delegated under the Government of
India (Transaction of Business) Rules, 1961 by the Prime Minister. The petitions
were dismissed with direction to accept the guidelines and vacate the premises
as per the undertaking given by them.
Madras
The petitioner
training center had been declared as Christian religious minority institutions
by an order of Division bench and was therefore entitled for the protection of
Article 30 ( 1) of the constitution. The Government has sanctioned and approved
several aided posts and aid to the extent of 75% of the salary fixed for the
said posts. The petitioner had appointed P.Savarimuthu and S. Flora Mary as
Store Keeper cum Office Assistants in the approved and aided posts. But the
respondent withheld the salary, service and pensionary benefits on the ground
that same could be granted only after obtaining an order of declaration from the
government that the institution is a minority institution. Aggrieved by this
Order the present appeal was preferred.
The High Court
observed that once minority status has been declared by an order of the Court,
the authorities concerned cannot insist upon a further declaration of minority
status by the Government for granting of benefits. Hence, that part of the order
which insisted that the petitioner Industrial Training Centre should get a
Government Order declaring it as a minority institution was set aside. Further
directions were issued to respondents to consider the request of the petitioner
Industrial Training Institute for grant of salary, emoluments, service,
educational and other benefits for the appointments made in the sanctioned and
approved posts.
National Consumer
Disputes Redressal Commission
The respondent filed
a complaint on the ground that there was deficiency in service provided by the
petitioner as his request to shift the mobile connection was not allowed by the
petitioner-company. The petitioner also filed fake affidavit stating that the
connection was shifted as per the request. The District Forum passed the order
against the petitioner. The present appeal was preferred against the order of
State Commission, which affirmed the order of District Forum in which direction
was given to the petitioner to shift the mobile telephone of the complainant
from Chandigarh to Kurukshetra region and to pay a sum of Rs. 10,000/- as
compensation for deficiency in service.
The National
Commission held that for filing false and incorrect affidavit before the
Consumer Forum, appropriate action was required to be taken against the
petitioner. For false affidavits or misleading statements in a pending
proceedings deponents are required to be dealt appropriately by imposing
punitive damages so that in future they or others may not indulge in such
practice. Further held that as serious negligence and deficiency in service was
evident punitive damages was required to be enhanced so that in future neither
the officers of the petitioner nor officers of other such big companies indulge
in such practices. The petitioner was directed to pay Rs. 1,50,000 as punitive
damages.
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| Ministry
of Home Affairs |
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Notification No.
SO1042(E) Dated 11.07.2006: The Ministry of Home Affairs vide the above
notification lists offences affecting the socio-economic condition of the
country for the purposes of sub-section (1) of Section 265A of the Code of
Criminal Procedure, 1973. The offences listed are offences coming under the
following Acts namely (i) Dowry Prohibition Act, 1961 (ii) The Commission of
Sati Prevention Act, 1987 (iii) The Indecent Representation of Women
(Prohibition) Act, 1986 (iv) The Immoral Traffic (Prevention) Act, 1956 (v)
Protection of Women from Domestic Violence Act, 2005 (vi) The Infant Milk
Substitutes, Feeding Bottles and infant foods (Regulation of Production, Supply
and Distribution) Act, 1992 (vii) Provisions of Fruit Products Order 1955
(issued under the Essential Services Commodities Act, 1955) (viii) Provisions of
Meat Food Products Orders 1973 (issued under the Essential Commodities Act,
1955) (ix) Offences with respect to animals that find place in Schedule I and
Part II of the Scheduled II as well as offences related to altering of
boundaries of protected areas under Wildlife (Protection) Act, 1972 (x) The
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (xi)
Offences mentioned in the Protection of Civil Rights Act, 1955 (xii) Offences
listed in Sections 23 to 28 of the Juvenile Justice (Care and Protection of
Children) Act, 2000 (xiii) The Army Act, 1950 (xiv) The Air Force Act, 1950 (xv)
The Navy Act, 1957 (xvi) Offences specified in Sections 59 to 81 and 83 of the
Delhi Metro Railway (Operation and Maintenance) Act, 2002 (xvii) The Explosives
Act, 1884 (xviii) Offences specified in Sections 11 to 18 of the Cable
Television Networks (Regulation) Act, 1995 and (xix) Cinematograph Act, 1952.
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Press
Information Bureau |
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Press Release Dated
05.07.2006: The Central Government vide the above press release notifies the
introduction of a new Chapter (Chapter XXI A) on Plea Bargaining into the
Criminal Procedure Code, 1973. The new provisions shall be effective from 5th
July, 2006. Plea Bargaining was introduced through the Criminal Law (Amendment)
Act, 2005 which was passed by Parliament in the winter session of 2005. This
provision is applicable only in respect of offences for which punishment of
imprisonment is up to a period of 7 years and is not applicable in case of
offences affecting the socio- economic condition of the country or offences
committed against a woman or a child below the age of 14 years. The provision is
intended for speedy disposal of cases.
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RBI |
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APDIR(Series)
Circular No. A. P.
(DIR Series) Circular No. 02 Dated 17.07.2006: The Reserve Bank of India vide
the above circular notifies the issue of directions regarding encashment
certificates. According to provisions of para 3 D.4 of the ECM Volume I
(Exchange Control Manual), Authorised Dealers and their exchange bureaux are
required to issue Encashment Certificates (EC) in form ECF in all cases of
purchase of foreign exchange from the public, irrespective of whether the
Currency Declaration Form (CDF) has been submitted or not by the tenderer of
foreign exchange and whether the tenderer requests for the certificate or not.
The certificate is required to be issued on security paper, if the amount of
foreign currency encashed exceeds Rs.15,000/- in value and in other cases, on
the letter-head of the authorised dealer/exchange bureaux. RBI through the above
circular notifies that it has been decided to dispense with the requirement of
issue of Encashment Certificate on security paper. Accordingly, when requested
by the customer, Encashment Certificate in form ECF, duly signed by authorised
officials, should be issued by Authorised Dealers Category I on their
letter-head (with their logo printed on it), irrespective of the amount. A
proper record of all Encashment Certificates issued has to be maintained. In
cases where Encashment Certificate is not issued, attention of the customer
should be drawn to the fact that in the absence of encashment certificate,
unspent local currency held by non-resident visitors will not be allowed to be
converted into foreign currency.
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Telecom
Regulatory Authority of India (TRAI)
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Press Release No.
68/2006 Dated 17.07.2006: Vide the above press release, Telecom Regulatory
Authority of India issues direction to Cellular Mobile Service providers and
Unified access service providers who are not complying with Nation Numbering
Plan in respect of use of some prohibited levels for short codes for SMS. As per
the National Numbering Plan and Department of Telecommunication’s (DoT’s)
communication dated 29th November 2004, Unified Access / Basic / Cellular Mobile
service providers are allowed to use the levels except ‘0’,’1’,‘7’,’8’
& ‘9’ for allocation of short codes to their content providers including
SMS based services within their network. The Authority directs the service
providers to immediately stop the use of prohibited levels and report compliance
to the Authority within 15 days of issue of this direction.
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| International Legal
Cases and News |
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Cases
Employment
In the present case,
the plaintiff-appellant worked as provisional teacher for the New York
Department of Education, the defendant-respondent. The respondent launched an
investigation into an allegation that the plaintiff-appellant was using corporal
punishments in the classroom which was banned. After an inquiry, the plaintiff
was terminated from employment as the allegations against her were found to be
true. The plaintiff filed a charge against the respondents with the New York
State Department of Human Rights alleging termination on account of race,
national origin and age. While the charge was still pending, the plaintiff
lawyer broached the issue of settlement and expressed willingness to negotiate
on the understanding that as part of any settlement, the plaintiff would drop
the pending legal claims and release future claims against the
defendant-respondents. However, no settlement was materialized and hence the
plaintiff-appellant filed the complaint again which was dismissed by the agency
as time-barred. Hence a suit was filed before the District Court which also
ruled in favour of the defendant-respondents dismissing the plaintiff-appellants
claims as untimely and meritless. Hence the present appeal was preferred. After
considering the contentions of both the parties the Court held that the reasons
for firing the plaintiff from employment are non-discriminatory and responsive
to legitimate institutional concerns. The plaintiff also failed that these
reasons are illegitimate or they were pretexts for dismissing her from
employment. Hence the decision of the trial court was upheld.
Constitution
The plaintiffs in
the present case are registered sex offenders living in the State of Arkansas.
The present petition was filed challenging the provisions of the Arkansas Sex
Offender Registration Act that require sex offenders to register with the State
as well as a criminal statute that prohibits certain registered sex offenders
from living within two thousand feet of a school or daycare center. The trial
court ruled in favour of the defendants and hence the present appeal was
preferred. The plaintiffs contend that both the Registration Act and the
residency restriction statutes violate the doctrines of substantive and
procedural due process. They also asserted that the Registration Act and
Guidelines are unconstitutionally vague, that the residency restriction violates
their equal protection rights by treating property owners and Level 1 and 2 sex
offenders differently than non-property owning Level 3 and 4 offenders, and that
the residency restriction violates their substantive due process rights to
reside with family members and to unrestricted interstate and intrastate travel.
They further alleged that the residency restriction is an unconstitutional ex
post facto law that retroactively punishes sex offenders who committed their
crimes before July 16, 2003. Held, the State has a strong interest in protecting
children from dangerous offenders through a process that is efficient and
practical. The Arkansas statute and guidelines provide notice to sex offenders
of the risk assessment process and give them a meaningful opportunity to be
heard. The program adequately balances the substantial interests of the State in
protecting children and the interests of the offenders in avoiding an erroneous
risk assessment, while providing reasonable procedures designed to ensure an
accurate classification. Therefore, the statutes and guidelines are consistent
with the Due Process Clause. The judgment of the district court was affirmed.
Election
The present appeal
is filed by the appellant, Secretary of the State of California against the
judgement of a lower county court requiring the Secretary to refrain from
enforcing the portion of Elections Code Section 3103.5 which requires a special
absentee voter to sign an oath “that by returning my voted ballot by facsimile
[(fax)] transmission I have waived my right to have my ballot kept secret.”
The trial court in petition for writ of mandate filed by the plaintiffs held
that the oath violated the State of California’s constitutional provision
Article II, section 7 as the oath could not be severed from the statute. The
trial court ruled that ballots cast by fax under section 3103.5 cannot be
counted. The appellate court after hearing the contentions of both the parties
held that the constitutional guarantee of secret ballot must be balanced against
the constitutional right of voters to cast a vote, but at the same time the
Legislature’s determination that fax voting is necessary to allow some voters
overseas to vote in California must be respected. Therefore, it is
constitutional. Further, the voters alleged improprieties in the fax voting
system but they failed to adduce substantial evidence in support of their
allegations and hence the judgement of the trial court was reversed on appeal.
Environment
The issue in the
present case is the costs incurred by the United States Government in its
environmental cleanup efforts at the Vertac Chemical Plant site in Jacksonville,
Arkansas. The Jacksonville site was originally developed by the federal
government in the 1930s as a munitions factory. In the late 1940s, the site was
sold to Reasor-Hill Corporation, a now-defunct company manufacturing various
pesticides. Unknown quantity of pesticides and other untreated chemical wastes
from the production processes flowed through cooling ponds of the plant into a
nearby stream causing environmental hazards. In 1961, another company, Hercules
bought the site and continued to manufacture herbicides. They also continued
with their predecessor’s practice of discharging untreated waste water
directly into the nearby stream. The site was later leased to respondent Vertac
Chem. Corp which also manufactured pesticides. The site was later abandoned and
it went into receivership. After Vertac abandoned the plant, the government
agency on environment took over the site, closed down all operations, and
assumed cleanup responsibilities costing over $110 million. The suit was filed
by the government holding that the respondents were jointly and severally liable
under (CERCLA) Comprehensive Environmental Response, Compensation and Liability
Act, Sections 107(a)(2) and (3) for the cleanup costs incurred by the United
States with regard to the Jacksonville site. The respondents raised
constitutional claims and argued that the district court erred in assigning and
apportioning liability for environmental cleanup costs pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA),
42 U.S.C. §§ 9601-0675, as amended by the Superfund Amendments and
Reauthorization Act of 1986. The appellate court relying on the judgement in
United States v. Dico, held that retroactive application of CERLA is
constitutional and affirmed the judgment of the lower court.
News
The Government of UK
is considering enacting rules that would dismiss company directors and seize
assets of firms employing illegal immigrants. As per the new rules, employers
would be punished even if contractors or sub-contractors were found employing
illegal immigrants. The new law will also include "two strikes and you're
out" policy, which would allow dismissal of board directors if their
company violates the law two or more times. Earlier, the UK government rejected
a potential amnesty program for illegal immigrants presently in the country. The
current proposal is designed to help limit the number of illegal immigrants in
the UK.
The UN Security
Council voted unanimously to adopt a compromise resolution against North Korea
on its recent missile tests. The Resolution calls for stopping of launches by
North Korea and requests member states to impose weapons-related sanctions on
North Korea. The resolution however, did not invoke Chapter 7 of the UN Charter
as proposed by Japan, which would have made its action binding and left open the
possibility of military enforcement. US UN Ambassador stated that if North Korea
did not comply with the resolution, the matter would come back to the Council
for further action. North Korean UN representative rejected the resolution on
behalf of his government, saying that "that the Security Council was not
justified in taking up his country’s missile launch exercise, both in view of
the competence of the Council and of international law".
Former NatWest
bankers and accused in Enron Case, pleaded not guilty to counts of wire fraud
for an alleged involvement in fraudulent sale of Enron stock. The bankers were
extradited to the US following a three year court battle to prevent the
extradition. The extradition prompted protests from British MPs who argued that
the US-UK Extradition Treaty is "lopsided." They were released into
the custody of their attorney after hearing of their pleas and accepting fine as
security by a US judge. During their release, the defendants are supposed to
wear electronic monitoring devices and follow a curfew. The trial is scheduled
to begin September 11.
The Chinese Ministry
of Health has approved new regulations governing the use and international
transport of corpses in an attempt to crackdown on the illegal trade of organs.
China has been criticized for harvesting and selling the organs of executed
prisoners without the consent of the prisoners or their families, but Chinese
officials said that the use of organs without consent was illegal and rarely
occurred. The new regulation bans the use bodies for any purpose other than
medical research and requires government approval before bodies may be
transported in or out of the country for burial. The regulation will take effect
from 1st August 2006. Separate regulations banning the sale of human organs
requiring written consent from organ donors and limiting the number of hospitals
at which transplants are performed also took effect on July 1st.
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