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[No.173] |
October
20, 2006 |
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Supreme
Court |
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The State of Andhra Pradesh
represented by Special Public Prosecutor filed a complaint under Section 200
read with Section 199 Cr.P.C. stating that the appellants with a common
intention intending to harm the reputation of the Government, of its
administration, of the Chief Minister, several ministers and several public
servants made a telecast on E TV-2 channel with a commentary knowing fully that
the same would harm reputation of public functionaries. Many expressions and
words used in commentary were per se defamatory. The appellants filed a petition
in terms of Section 482 Cr.P.C. alleging that the said complaint by the
respondents was nothing but gross abuse of process of Court. The
appellants stated there was no intention in any manner to harm the reputation of
the Chief Minister, his ministers or other officers. The respondent opposed the
application stating that on the facts alleged, no interference in terms of
Section 482 Cr.P.C. was called for. The High Court dismissed the application,
holding that a prima facie case existed and, therefore, no interference was
called for. Hence present appeal. Held, public interest would be best served in
directing a new broadcast to be made in the concerned TV channel by the
appellants wherein it is made clear that the content of the voice over
commentary was not intended in any manner to defame or harm the reputation of
the Chief Minister or his entourage of ministers and officials.
Respondent, during the course
of duty as a constable with Central Reserve Police Force, fired a bullet without
orders and without any sufficient reason. A Court of Inquiry was conducted and
it was established that the respondent alone was responsible for the firing in
which he had sustained bullet injury in his abdomen. Accordingly a departmental
inquiry in terms of Rule 27 of the Central Reserve Police Force Rules, 1955 was
ordered alleging misconduct and negligence/remissness in discharge of his duty
in his capacity as a member of the Force. The inquiry was conducted and the
respondent was given opportunity to defend himself. The inquiry officer found
the respondent guilty of charges framed against him and he was dismissed from
services. Against the order of dismissal, respondent preferred an appeal to the
Deputy Inspector General of Police. Pending the said appeal, a writ petition was
also filed. The High Court dismissed the petition, but gave a direction for
disposal of the appeal pending before the DIGP, CRPF who in turn dismissed the
appeal. A revision petition was filed before the Additional Director General who
in turn modified the punishment of dismissal to one of removal considering the
respondent's young age and short length of service. Against the said order of
ADG, a writ petition was filed. The High Court by the impugned judgment held
that the defence of the respondent was not properly considered by any
departmental authority and the punishment awarded was shockingly
disproportionate. Accordingly, the punishment was set aside and direction for
reinstatement with certain other benefits was given. Hence, present appeal.
Held, the High Court has not indicated any reason for coming to the conclusion
that the punishment was shockingly disproportionate. The High Court's order
therefore reflects non application of mind. The impugned order of the High Court
is set aside. Appeal allowed.
The appellant bank granted a
term loan of Rs 30 lakhs to the respondent company. The bank further extended a
cash credit facility to the company. As the company failed to meet its
obligations under the account, the bank issued a notice calling upon the company
to repay the amounts due under the loan transactions and to close its accounts.
On receipt of the said notice, the company filed a suit before the Civil Court.
The respondent company claimed that the bank had failed to fulfill its
obligations while making available the cash credit facility and has not honoured
its commitments in time to release the working capital which was agreed to as
part of a rehabilitation process of the company and because of the delay on the
part of the bank in fulfilling its obligations, the company had suffered losses
leading to the Board of Industrial and Financial Reconstruction, recommending
its winding up. The respondent company further contended that in view of the
fact that the losses were incurred by the company because of the failure of the
bank to fulfill it’s obligations, the company was entitled to recover damages
with interest thereon. Thereupon, the appellant bank approached the Debt
Recovery Tribunal. Meanwhile, in the suit filed by the respondent company before
the civil court, the bank moved an application praying that the said suit be
transferred to the Debt Recovery Tribunal for being tried jointly with the suit
already pending before the Tribunal as both proceedings arose out of the same
cause of action, namely, the grant of a loan and the providing of a cash credit
facility by the bank to the company. The appellant bank urged that the suit by
the company was really in the nature of a counter claim or set off, as against
the claim of the bank for recovery of money on loan amount. The Trial Court took
the view that the suit filed by the company did not come with the purview of
Section 19(9) of the Recovery of Debts Act and it could not be treated as a
counter claim and hence the prayer of the bank was rejected. Upon appeal by the
bank against the said order before the High Court of Patna, the Court held that
there was no bar created by the Recovery of Debts Act or any other law, which
could prevent a person from filing a suit in the civil Court or making any
claim, much less, one for damages which was even otherwise, completely alien to
the claim based on the loan made by the bank before the Tribunal. Since the suit
was not hit by Section 18 of the Recovery of Debts Act, the jurisdiction of the
civil Court was not affected and the Court had full authority to proceed with
the suit for damages which was filed earlier and which was unconnected with the
loan transaction. The revision petition was thus dismissed. Hence, present
appeal. Held, the trial court and the High Court have failed to exercise the
jurisdiction vested in them by law in refusing to transfer the suit to the Debt
Recovery Tribunal, Patna. They have not considered the question whether it will
be fit and proper to order a joint trial of the two actions. Hence, it is not
only fit and proper but also just and necessary to have the two causes tried
together. Appeal allowed.
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High Courts |
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Mumbai
The petitioners were working on
daily wages as Field workers for respondent. They were selected and appointed as
Field Workers in class IV category by respondents vide an appointment letter
which contained a clause that the appointment was on a temporary basis and
liable to terminated without any notice. Meanwhile, similarly placed employees
like petitioners in present suit filed an application before Maharastra
Administrative Tribunal alleging discrimination. Tribunal directed the
authorities to set the anomaly right within a specified time period. Upon expiry
of said period prescribed by Tribunal, Contempt Petition was filed before the
Tribunal alleging non-compliance of orders of Tribunal by authorities. In the
said contempt applications, the Tribunal issued a notice before admission of
same. However, respondents issued cause notice and terminated services of all
said employees including petitioners. Hence, present petition by petitioners
challenging the termination order by the respondents. Held, interest of justice
requires that petitioners should, at least, be heard, where in either party
could put its case, and then final order could be passed. Impugned termination
order is set aside.
Chennai
M.Ramkumar
Vs. The Deputy
Inspector General, Central Industrial Security Force, Southern Zone, Chennai-600
090 & Ors
Petitioner while working with
Central Industrial Security Force (CISF), erroneously granted a railway warrant
to a co-worker who had already availed railway warrant for the year and was not
eligible for the same. This was done by the petitioner on the basis of
information provided by his assistant. The petitioner was held up in some other
urgent work and could not verify the matter himself. An entry to this effect was
made in the service records and petitioner suppressed the matter without
revealing it to his superiors. Later, when the matter came to light, the
petitioner was issued with a charge memo by the third respondent. An enquiry was
conducted into the matter by the fourth respondent and he passed an order
holding that the petitioner should pay fine equivalent to seven days pay.
Aggrieved by the order, petitioner preferred an appeal to the second respondent
who directed the third respondent to issue a fresh final order for the charge
sheet memorandum. Pursuant to the same, the third respondent without conducting
a proper and fresh enquiry confirmed the original order passed by the fourth
respondent, but reduced the punishment by directing the petitioner to pay the
fine equivalent to three days. Against the said order, the petitioner preferred
a revision to the first respondent who confirmed the order of the third
respondent. Hence, present writ petition. Held, punishment imposed on petitioner
by disciplinary authority and modified by appellate authority is not warranted
and we are satisfied that ends of justice would be met by mere warning. Writ
petition is allowed.
The appellant company, a public
sector undertaking under Department of Atomic Energy, acquired land for it’s
mining activities. The land was acquired after the land owners were paid
adequate compensation and land acquisition proceedings were completed by passing
an Award. 10 years later, respondent land owners/displaced persons approached
High Court by way of writ petitions. The writ petitions were filed seeking a
directive from the High Court to the effect that the appellant company fulfill
its promise of providing suitable employment to one member of each family who
were dispossessed of their lands by way of the acquisition proceedings in
question. Apparently, the Manager of the appellant company had promised before
the Special Tahsildar, Land Acquisition that one member from each family of the
individuals, whose lands were acquired, would be given employment in the
appellant company. Therefore, in view of such promise, the appellant Company is
estopped from denying such benefit. Also, Government of Tamil Nadu had issued
notification G.O.Ms.No.324, Revenue Department, directing all public sector
undertakings to recruit without reference to employment exchange at least one
member of each family, who were displaced on account of acquisition of lands for
any project. The writ petitions were allowed with a direction to provide
appointment to one member of each of the displaced families. Hence, present writ
appeal. Held, mere promise by Manager was not binding on appellant company and
consequently, such promise given by Manager of company cannot be considered to
be one of estoppel that could be pleaded against appellant Company. Appeal is
dismissed.
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Press
Information Bureau |
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Department / Board: PIB Dated
12.10.2006: Vide the present press release, it is notified that the government
has issued modified guidelines for grant of visa to Chinese nationals and
extension of their stay in India. The objective is to further streamline the
visa procedures for obviating the delay in processing of applications for
granting or extending Indian visas to Chinese nationals. The modified guidelines
are also aimed at enhancing the relatively short validity, particularly of
Business and Employment visas and their subsequent extensions within the
contours of the Memorandum of Understanding (MoU), signed between the Government
of Republic of India and the Government of People’s Republic of China on 23rd
June 2003. The modified guidelines are aimed to ensure easier movement of
genuine Chinese businesspersons, professionals, students and their dependents in
India.
Department / Board: PIB Dated
16.10.2006: The Union Cabinet gave its approval for the proposed amendments to
the Information Technology Act, 2000. The Information Technology Act was
originally enacted in the year 2000 and was primarily aimed to boost e-commerce
in the country and also to create an enabling environment for e-Governance in
the country. It provided a legal framework for transactions carried out using
computers and the internet technologies. The Act was enacted keeping in view the
technology directions and scenario existing at that time. As the technology is
an ever-evolving process for providing efficient and cost effective options, it
was felt that certain amendments would have to be incorporated into the
technology driven law keeping abreast with the technological developments. As
concerns regarding adequacy of data protection and privacy laws in the country
have been raised by customers both within the country as well as abroad, a need
to further strengthen the legislation pertaining to data protection and privacy
was felt. Hence, present amendments to the IT Act. The Amended Act would
prescribe security practices and procedures to be followed by body corporates
and organizations regarding personal information of customers.
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RBI |
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DBOD
Circular No. DBOD.No.Dir.BC.
35/13.07.10/2006-2007 Dated 11.10.2006: Vide RBI Master Circular
DBOD.No.Dir.17/13.03.00/2006 dated July 1, 2006 relating to guarantees and
co-acceptances, banks were advised that it is binding on the part of the
beneficiary of the guarantee to seek confirmation of the controlling office/head
office as well, for which a specific stipulation be incorporated in the
guarantee itself, but the beneficiaries of guarantees issued by banks were
reluctant to accept the guarantees issued with the above stipulation, resulting
in loss of business to banks. Hence, Reserve Bank of India notifies the deletion
of above clause i.e. paragraph 2.5 of the said Master Circular with immediate
effect through the present circular.
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SEBI |
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Primary Market Department
Circular No: SEBI/CFD/DIL/DIP/23/2006/16/10
Dated 16.10.2006: SEBI, vide the above circular notifies the adoption of policy
of Lock-in on pre-IPO shares before Initial Public Offering (IPO) held by
Venture Capital Funds and Foreign Venture Capital Investors. As per the existing
SEBI (DIP) Guidelines, 2000 pre-issue shares of an unlisted company making an
Initial Public Offering (IPO) are not required to be locked in, if the same are
held by Venture Capital Funds (VCFs) or Foreign Venture Capital Investors (FVCIs)
registered with SEBI. As per the new policy which modifies the existing SEBI
(DIP) Guidelines, 2000, the benefit of this exemption is restricted only to
shares held by VCFs or FVCIs registered with SEBI, for a period of at least one
year as on the date of filing draft prospectus with SEBI and shares issued to
SEBI registered VCFs/ FVCIs upon conversion of convertible instruments during
the period of one year prior to the date of filing draft prospectus with SEBI,
provided that the period of holding such convertible instruments as fully paid
up, together with the period of holding shares resulting from conversion, by the
VCFs and FVCIs, is at least one year as on the date of filing the draft
prospectus with SEBI. Further, the amendment regarding lock-in made available
vide the above circular shall be applicable to all offer documents, which are
yet to be registered with the Registrar of Companies.
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| International Legal
Cases and News |
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Cases
The Defendant-Appellant in the
present case appeals the district court’s denial of his motion to suppress
evidence seized after his vehicle was stopped, based on the police’s belief
that he was involved in a reported burglary. The police had received information
about the occurrence of a certain burglary in the neighborhood and was
conducting searches on vehicles. During the course, the defendant was stopped
midway while on his vehicle and a search was carried out on him as the
description of his vehicle matched with that of the vehicle that the police had
information on relating to the burglary. The search revealed some drugs and a
pistol and subsequent interrogation revealed that the defendant was coming from
the scene of burglary. He was therefore charged with one count of being a
convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g),
four counts of possession with intent to distribute controlled substances in
violation of 21 U.S.C. § 841(a)(1) and one count of carrying a firearm in
relation to drug trafficking crimes in violation of 18 U.S.C. § 924(c).
Defendant filed an amended motion to suppress evidence, alleging that the
firearm and drugs were seized in violation of his Fourth Amendment rights.
Specifically, the defendant alleged that the police officer in question lacked
probable cause to justify an investigatory stop and subsequent arrest. After an
evidentiary hearing, the Magistrate denied the defendant motion to suppress
evidence. The court held that the officer in question had a reasonable suspicion
and was legally right in stopping the defendant based on the information that he
had as the description of the defendant and his vehicle matched with that of the
alleged burglar and his vehicle. On appeal, the district court affirmed the
decision of the Magistrate. Hence, present appeal. Held, defendant’s
confirmation that he was coming from the scene of burglary and description of
his vehicle provided sufficient probable cause for officer in question to arrest
defendant. Decision of lower courts is therefore affirmed.
Respondent McDonald, a black
man, is the sole shareholder and President of JWM Investments, Inc. JMV and
Domino’s entered into several contracts under which JWM agreed to construct
four restaurants in Las Vegas area and lease it to petitioners Domino’s.
Thereafter, respondent sued petitioners under 42 U. S. C. §1981, alleging that
petitioners Domino's had broken those contracts because of racial animus towards
the respondent and that the breach had harmed the respondent personally by
causing him to suffer monetary damages and emotional injuries. The District
Court dismissed the petition and held that respondent McDonald could not bring a
§1981 claim against petitioners Domino's as respondent McDonald was not a party
to contract with petitioners. The respondent made and enforced contracts for JMV
as its agent and not in his personal capacity. On appeal, the Ninth Circuit
reversed the judgement of the trial court and held that not only an injury
suffered by the corporation would permit a shareholder to bring a §1981 action,
but concluded that when there are injuries distinct from those of the
corporation, a nonparty like respondent McDonald can sue under §1981. Hence,
present petition. Held, a plaintiff cannot state a claim under §1981 unless he
has rights under the existing contract that he wishes "to make and enforce
contract." §1981 clause cannot be said to give McDonald a cause of action
as he "made and enforced contracts" for JWM as its agent. Hence,
judgement of Ninth Circuit Court was reversed.
Petitioners were
superintendents at a poultry plant owned and operated by respondent Tyson Foods,
Inc. The petitioners, who are African-American, sought promotions to fill two
open shift manager positions, but two white males were selected instead. The
petitioners alleged that the respondent had discriminated against them on
account of their race and so sued the respondent under Rev. Stat. §1977, 42 U.
S. C. §1981, Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as
amended, and 42 U. S. C. §2000 in the United States District Court for the
Northern District of Alabama. The petitioners alleged that the plant manager of
the respondent who made the disputed hiring decisions had on some occasions
referred to them as “boys”. The petitioners argued that this term was
evidence of discriminatory animus. The jury awarded punitive damages to the
petitioners and the District Court ordered a new trial under Rule 50(c). On
appeal, the United States Court of Appeals for the Eleventh Circuit affirmed the
judgement of the District Court in part and reversed in part. The court affirmed
the District Court's decision of alternative remedy of a new trial under Rule
50(c), but held that trial evidence is insufficient to show unlawful
discrimination and to support the decision to grant punitive damages or
compensatory award. Hence, present petition. Held, in so far as the Court of
Appeals held that qualifications are necessary in all instances to render the
disputed term as probative of bias, the court's decision is erroneous.
Therefore, judgement of the Court of Appeals is vacated and case remanded for
further consideration.
The plaintiff was working with
the Municipal Housing Department of the City of Mayaguez. His position was a
"transitory" one and his employment contract was renewed from time to
time. As time passed on, the intervals of renewal of his contract became smaller
and smaller and ultimately he was terminated from his service. The plaintiff
attributes the same to the fact that he supported a rival candidate, an opponent
of the Mayor in the primary elections. The plaintiff filed a suit alleging
violation of his First Amendment rights under 42 U.S.C. § 1983. Specifically,
he alleged that he had been harassed in the workplace and that his employment
had been terminated because of his political allegiance to the Mayor’s
opponent in the primary elections. The jury gave a verdict in favour of the
plaintiff-appellant and awarded compensatory damages for non-renewal of the
employment contract and for harassment. The District Court Judge held that that
there was sufficient evidence of political persecution and harassment and of
deliberate indifference to plaintiff's constitutional rights. However, he
reduced the harassment compensatory damages award and punitive damages award
awarded to the plaintiff. Hence, present appeal by plaintiff-appellant arguing
that reduction of damages violated his Seventh Amendment Rights. Held, an order
entering "judgment for a lesser amount than that determined by the jury
without allowing petitioner the option of a new trial, cannot be squared with
the Seventh Amendment. Since the plaintiff-appellant may opt for a new trial, it
would be premature to approve a punitive damages award based on the compensatory
award from the first trial. Therefore, matter remanded to District Court to
decide whether to order a remittitur offering plaintiff-appellant the choice
between a new trial and a reduced damages award.
News
An independent United Nations
commission released a report calling for criminal investigations into the former
prime minister of East Timor, Mari Alkatiri, and four other former government
officials in relation to armed confrontations between the government and
military that left 37 dead earlier this year. The report claims to have found no
support for allegations that Alkari armed local militia groups to kill his
political opponents, but it recommended he be investigated for weapons offenses
and for illegally using armed forces to control protests. Alkatiri resigned
after his dismissal of hundreds of striking members of the armed forces led to
rioting and continued violence. The UN commission released its report to the
Timorese Parliament in Dili.
The Supreme Court of Missouri
affirmed a trial court decision striking down a State of Missouri law requiring
voters to show State of Missouri-issued photo identification cards at the polls.
A 6-1 majority opinion of the court held that requiring voters to present ID
cards violates equal protection and voting-rights clauses of the Missouri
Constitution. The court ruled that requiring Missourians to obtain IDs imposes
more than a minimal burden on their voting rights and noted that it requires
"time, funds and advance planning." The court also held that the
provision was not narrowly tailored to the compelling state interest of
preventing voter fraud as there was only one specific instance of possible fraud
that had occurred since 2002. Similar voter ID laws have been upheld in the
State of Indiana but have been blocked in the States of Arizona, Georgia and
Pennsylvania. Meanwhile, the US House of Representatives has already approved a
bill that would require voter ID cards for federal elections starting in 2008.
The European Union has formally
signed an interim agreement with the United States giving the United States
access to passenger name record data from European airlines conducting
transatlantic flights. The US is expected to formally sign the deal later while
the EU will still needs to submit the deal for all 25 EU member states to ratify
the same at the national level. The interim deal, which was agreed upon on
October 6, 2006 faced problems after EU and US officials failed to reach
agreement by a court-imposed October 1, 2006 deadline on how to share passenger
information without violating EU privacy laws. Since the Sept. 11 attacks, the
US has requested airlines landing in the country to supply the name, address,
telephone number and credit card details of every passenger. In May, however,
the European Court of Justice struck down the agreement as illegal under EU law,
forcing the US and the EU to begin negotiating a new deal. The new passenger
name record agreement also requires the US Department of Homeland Security to
ask for passenger data, rather than receiving the data automatically upon
departure. The interim agreement is slated to expire in July 2007.
The Israeli police have
recommended that the Israeli Attorney General indict the Israeli President,
President Moshe Katsav on charges of rape, sexual harassment, indecent acts
using force and without consent. The recommendation comes in the wake of a
three-month long investigation by the Israeli Police on complaints brought
against the President’s former employees. At least four or five of the cases
are said to be strong enough to support an indictment. There also exists
evidence to bring charges of grand larceny, fraud and breach of trust, and
illegal wiretapping against the President. The Attorney General is to decide
whether to bring an indictment or not against the President after a team of
prosecutors reviews the evidence against him. The President may also face
impeachment by Knesset, the Israeli Parliament.
A military court in the
Democratic Republic of Congo has recommended that three ex-employees of Anvil
Mining, an Australian company, be tried for complicity in war crimes committed
by Congolese government soldiers in 2004. The crimes are alleged to have been
facilitated by the said ex-employees, a Canadian and two South Africans include
summary executions, rape, torture, and looting carried out by soldiers in 2004
after the bombardment of the town of Kilwa during a small rebellion in Congo's
Katanga province. A court document states that the men "voluntarily failed
to withdraw the vehicles placed at the disposal of the 62nd Brigade in the
context of the counter offensive on October 2004 to recapture the town of Kilwa"
and "knowingly facilitated the commission of war crimes." In June
2005, an Australian law firm acting on behalf of Rights and Accountability in
Development (RAID) and Congolese NGOs asked the Australian Federal Police to
determine if there was sufficient evidence of Anvil's involvement in crimes
against humanity or war crimes under Chapter 8 of the Australian Criminal Code
Act of 1995 which reflects the law of the International Criminal Court.
Meanwhile, Anvil has insisted that any allegations that it assisted in or had
knowledge of any wrongdoing are totally unfounded.
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