[No.207]

Supreme Court

• Valsala Kumari Devi M. Vs. Director, Higher Secondary Education and Ors.

Appellant was working as a High School Assistant with respondent school. It is the grievance of the appellant that the 4th respondent-Manager, overlooking the seniority and eligibility of the appellant, appointed 5th respondent as HSST (Humanities). Challenging the same, the appellant filed a writ petition which was disposed of. Appellant then filed an appeal against same and Division Bench after finding that the selection shall be made based on seniority and suitability upheld the decision of the Selection Committee selecting the 5th respondent confirmed the order of the learned single Judge and dismissed the writ appeal filed by the appellant. Questioning these orders, the present appeal has been preferred before this Court. Hence, present appeal. Appellant challenged the judgement on ground that the Selection Committee had wrongly taken into account proficiency in Kannada a criteria for appointment by promotion when such a stipulation was absent in the government order governing promotions when the medium of instruction in Higher Secondary Schools is English. Held, it was improper on the part of the Selection Committee to make selection taking into account the qualifications which are not prescribed in the G.Os and by giving weightage to such qualifications. The Selection Committee has also taken note of the suggestion of the Parents Teachers Association that persons having proficiency in Kannada should be preferred when there is no such condition in the Government Order. In other words, preference is to be given for proficiency in Kannada which is not a requisite qualification. Therefore, ignoring the appellant who has been working as HSA in the very same school and selecting the 5th respondent by giving weightage for proficiency in Kannada which is not a condition prescribed in the relevant Govt. orders by the Selection Committee cannot be sustained. It is based on extraneous/irrelevant considerations. Appeal allowed.

• U.P. Power Corporation Ltd. and Ors. Vs. Bonds and Beyonds (India) (P) Ltd.

The State Government of Uttar Pradesh issued the amended U.P. Electricity (Regulation of Supply, Distribution, Consumption and Use) (1st Amendment) Order, 1984 which was initially applied from 1-5-1984 to 21-5-1984. The State Government again issued another order known as the U.P. Electricity (Regulation of Supply, Distribution, Consumption and Use) (Second Amendment) Order, 1984 on 21-5-1984 and it was made applicable with effect from 1-5-1984. By this, Clause III of the First Amendment Order was substituted and the same was made applicable with effect from 1-5-1984 and was to remain in force until withdrawn. It is alleged that the said Order was not withdrawn by the State Government and is still in force. The Respondent Corporation in order to check the malpractice by the consumers installed electronic meters which are computerised and can be downloaded for 35 days which will show the details of consumption including any violation of peak hours restriction in the last 35 days. Thereafter, the Board issued a circular on 15-10-1998 to the effect that penalty for peak hours restrictions will be imposed as per the meter reading inspection report. However, it was pointed out by the communication dated 7-4-1999 that for violation of restriction of peak hours on the basis of meter reading inspection report for the first time, one penalty for one month may be imposed on the bill. However, for the second bill and thereafter, the procedure for penalty will remain the same as mentioned in the circular dated 15-10-1998. In this factual matrix, the Division Bench of the Allahabad High Court after reading these two circulars dated 15-10-1998 and 7-4-1999 took the view that in view of the order dated 7-4-1999, the consumer cannot be levied with penalty for each alleged contravention but once only on the basis of alleged meter reading report, meaning thereby that each such report will be treated as one contravention. One meter reading inspection report which stores data for 35 days, shall be treated as one contravention irrespective of the fact that in the report a number of contraventions might have been made of peak hour restriction but one meter reading inspection report shall be construed as one contravention. Aggrieved against this order, the appeal has been filed. Held, reading of the two circulars makes it very clear that for violation of restrictions of peak hours on the basis of MRI report for the first time, one penalty for one month was to be imposed in the bill. Therefore, by the circular dated 7-4-1999 one-time concession was given to the consumers but it was not meant to be for all times to come. Both these circulars clearly contemplate that for each contravention penalty will be levied and not simply because the violations have been recorded in one MRI report, therefore, the same will be considered to be as one violation. Hence, the view taken by the Division Bench of the Allahabad High Court is clearly, unsuitable, and cannot be sustained. Appeal allowed.

High Courts

Bombay

• Yezdi Hirji Malegam, Darius Cawasji Shroff, Pesi Shavak Patel and Cyrus Shavak Patel, Mumbai v. The Commissioner of Income-tax, Bombay

Assessee held several equity shares of limited companies from which dividend income was received and was given credit of tax deducted at source (TDS) from the dividend income. However, for the assessment years in question, the Income Tax Officer declined to give credit of TDS from dividend income to the assessee on the ground that the shares belonged to the firm and therefore the firm and not assessee is entitled to the credit of the TDS amount. The assessee filed appeals before CIT (A) against order of I.T.O. However, the CIT (A) rejected the contention of the assessee and upheld the order of the I.T.O. On further appeal by the assessee, the Income Tax Appellate Tribunal upheld the order of CIT (A). Hence, present reference. Held, the first proviso to Section 199 of the Act read with Rule 30A of the Income Tax Rules, inter alia, provide for giving credit of tax deducted at source to the firm where the dividend income is to be taxed in the hands of the firm and not the shareholder. In the present case, the dividend income is admittedly taxed in the hands of the assessee/shareholder. Once the dividend income is assessed in the hands of the assessee/share-holder, the proviso to Section 199 of the Act would have no application and consequently denying the credit of TDS to the assessee/shareholder does not arise at all. Therefore, the assessee could not be denied credit of TDS by invoking the first proviso to Section 199 of the Act read with Rule 30A of the Income Tax Rules. Reference answered in favour of assessee.

• Syed Babali s/o Sayed Lal, Begum w/o Sayed Babaali, Umadabee w/o Syed Lal and Shabana w/o Gaffar v. The State of Maharashtra, through P.P., High Court Bench at Aurangabad

Appellants were prosecuted by sessions Judge for offence of murder in furtherance of common intention. Sessions Judge placed implicit reliance on the dying declaration of deceased as there was no direct evidence and convicted appellants. Hence, present appeal. Whether conviction of appellants based upon dying declaration of deceased is valid? Held, the dying declaration is only a piece of untested evidence and must like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the Court is satisfied that it is true and free from tutoring, prompting or animosity and is coherent and consistent, there can be no legal impediment in accepting the dying declaration. However, if the circumstances indicate existence of a possibility of false implication, the benefit must go to the accused. In view of the infirmities found in the present case, possibility of false implication can not be ruled out. The fact that no independent witness is examined by the prosecution though the house of the deceased is in thickly populated locality and the incident took place at 9.00 o'clock in the morning when all the neighbours would normally be at their house, raises doubt about the credibility of the investigation. Therefore, conviction of appellants is set aside. Appeal allowed.

INTELLECTUAL PROPERTY APPELLATE BOARD

Chennai

• Computer Sciences Corporation V. Mr. R. Thangaraj CSC Computer Education

Applicant-company, registered proprietor of the trademark CSC in India and worldwide, filed application for cancellation of respondent-company's trademark "'CSC Computer Education" on the ground that the respondent's trademark was deceptively similar to the trademark of applicant and both the companies were engaged in providing computer services to the public. Hence, present application. Held, the word 'CSC' could only have acquired distinctive character as a result of use made of it or if it was already a well known mark. With regard to the date of user of the mark by the respondent it had stated in its application for registration as 'proposed to be used'. Therefore, the question of the mark acquiring distinctiveness by use by the date of application does not arise. It should have, therefore, been refused registration under the absolute grounds for refusal under Section 9(1) (a) of the Act. Application allowed.

Press Information Bureau

• Satellite TV Channel 'Janmat' Banned For One Month

PIB Dated 20.09.2007: The Information & Broadcasting Ministry has prohibited the transmission/re-transmission of satellite channel 'Janmat' (assumed name Live India) on all platforms throughout the country. The ban effective from 20.09.2007 will be up to 20.10.2007. The prohibition has been imposed in terms of the Sub-Section (2) of Section 20 of the Cable Television Networks Regulation Act, 1995. Apparently, the channel had telecast a doctored sting operation on a teacher of Sarvodaya Kanya Vidyalaya in Darya Ganj in Delhi. The telecast of said sting operation was defamatory, deliberate, false and contained suggestive innuendos and half-truths; incited violence and contained content against maintenance of law and order. Therefore, the Central Government thought it necessary to prohibit transmission or re-transmission of the said channel throughout the country.

• Government to Refund Service Tax Paid By Exporters on Transport Services

PIB Dated 17.09.2007: The Government has decided to refund service tax paid by exporters on four taxable services, which are not in the nature of "input services" but could be linked to export goods. A Notification No. 40/2007-ST issued by Central Board of Excise and Customs, Ministry of Finance covers under this, four services namely (i) Port Services provided for export. (Section 65[105][zn] of the Finance Act, 1994); (ii) Other port Services provide for export. (Section 65[105][zzl]); (iii) Services of transport of goods by road from ICD to port of export provided by Goods Transport Agency. (Section 65[105][zzp]) and (iv) Services of transport of export goods in containers by rail from ICD to port of export. (Section 65[105][zzzp])

Service tax paid by exporters on input services used for export goods is refunded under the existing schemes.

• Parliament Passes Competition Bill

PIB Dated 10.09.2007: The Parliament has passed the Competition (Amendment) Bill-2007. The Bill was introduced on 29th August, 2007. After the Presidential Assent is received, the Govt will notify the Rules under the Act and other steps will be taken for operationalization of the Competition Commission of India (CCI).

Major Highlights of the Amendments are that the Commission would now act as an expert body which would function as a market regulator for preventing and regulating anti-competitive practices in accordance with the Act and would also play an advisory and advocacy role. Prior intimation to the Commission, of any combination amongst companies, groups or persons, has been made mandatory. However, such a combination has to be intimated only if it is above a particular size.

SEBI

Press Release

• SEBI Initiates Adjudication Proceedings Against 20 Companies for Non-Compliance of Clause 49 Norms

Press Release No. PR No.257/2007 Dated 11.09.2007: SEBI receives quarterly reports from Stock Exchanges regarding compliance with Clause 49 of the listing agreement. Clause 49 deals with corporate governance by companies listed on the exchanges. Based on these reports, SEBI has initiated adjudication proceedings against a total of 20 companies from the private sector and the public sector. Of the 20 Companies, five companies are public sector companies against whom proceedings have been launched for non-compliance with provisions relating to Board composition. The remaining 15 companies are in the private sector. Out of these 15 private sector companies, proceedings have been initiated against three companies for non-compliance with almost all the major provisions of Clause 49, against two companies for non-compliance with provisions like Board/Audit committee composition and CEO/CFO certification, while for the balance 10 companies, proceedings have been initiated for non-submission of compliance reports on Clause 49 to the Stock Exchanges.

Cases

• Douglas v Hello! Ltd

The Claimant couple sold exclusive rights of their wedding to OK! for £1m with a view to retaining control over the media and their privacy. Outwitting the strict security measures in force on the day, a photographer snatched some photographs of the happy couple, which then appeared splashed across the pages of defendant Hello! magazine, spoiling the exclusive story promised to OK!. The Claimants filed a claim against defendant based on breach of confidence, breach of privacy and breach of the Data Protection Act. Trial court ruled that the Defendants had breached the confidence of the Claimants and hence ordered defendant to pay OK! over £1m in compensation. The claimant couple were entitled to damages for breach of confidence because the wedding was essentially a private affair, whereas OK! was awarded damages on the basis that the breach of confidence was in the form of a trade secret. On appeal , Court of Appeal ruled that where an individual ('the owner') has at his disposal information which he has created or which is private or personal and to which he can properly deny access to third parties, and he reasonably intends to profit commercially by using or publishing that information, then a third party who is, or ought to be, aware of these matters and who has knowingly obtained information without authority, will be in breach of duty if he uses or publishes the information to the detriment of the owner". Applying the above principle to the facts, the Court dismissed the appeal against the judgment in favour of the claimant couple based on commercial confidence. Court held that Defendant Hello! had deliberately obtained photographs, knowing that such photographs were unauthorised and published them to the detriment of the claimant couple, causing them commercial loss. As a result, Defendant Hello! was liable to the claimant couple for breach of commercial confidence. With respect to third claimant OK magazine, the Court considered that the contract of the claimant couple with OK! did not transfer any proprietary rights in the photographic information regarding the wedding, but merely granted to OK! a licence to exploit the approved photographs commercially for a nine month period. It did not grant any rights to OK in respect of any other photographs of the wedding. OK!'s complaint was not that Defendant Hello! had published the approved photographs for which OK! had been granted the exclusive licence to publish but that Hello! had published other images, which could not be published by anyone who knew that such images were confidential. These unapproved photographs were confidential only to the claimant and not OK! and therefore, OK! did not have any right to protect the confidentiality of the photographs.

• US v. Brogdon

Defendant-Appellant appeals the sentence and sex-offense-related conditions of supervised release imposed by the district court. The defendant had pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Following his guilty plea, the United States Probation Office "USPO" prepared a pre-sentence report dated January 31, 2006, indicating a total offense level of 3, a criminal history category of I, and a recommended sentencing range of 12 to 18 months. Neither party filed objections to this report. Thereafter, the USPO prepared a second report indicating a total offense level of 23 and a criminal history category of VI, resulting in a recommended guideline range of 92 to 115 months. Defendant objected to these calculations. However, district court sentenced him based on second report. Hence, appeal. Defendant claims that the sentence imposed by the district court was both procedurally and substantively unreasonable. In particular, he asserts that the district court erred in calculating his criminal history points under U.S.S.G. § 4A1.2(e)(2), gave improper weight to the recommended guideline range, failed to adequately consider the pertinent § 3553(a) factors, and imposed a sentence that was greater than necessary. Held, a sentence will be upheld on appeal as long as it is procedurally and substantively reasonable. A sentence may be substantively unreasonable if the district court selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors, or gives an unreasonable amount of weight to any pertinent factor. In the present case, the defendant failed to establish that his sentence was either procedurally or substantively unreasonable. First, it is clear that the district court properly determined the applicable guideline range based on defendant's criminal history and base offense level. Although defendant contends that his convictions prior to 1989 should not be considered in his criminal history, this argument is contrary to the Sentencing Guidelines and this Court's unpublished decision in UnitedStates v. Susewitt. Because the sentence is procedurally and substantively reasonable and because the conditions of supervised release are reasonably related to the rehabilitation of the defendant and the protection of the public, the decision of lower court is affirmed.

News

• Myanmar, Somalia ranked most corrupt countries in annual survey

Somalia and Myanmar rank as the world's most corrupt nations in 2007 according to the latest annual Transparency International Corruption Perceptions Index. The index ranked 180 countries based on observations by businesspeople and analysts, giving each a score between 1 and 10. Myanmar and Somalia tied for the lowest score of 1.4 out of 10. Transparency International chairman Huguette Labelle said that impoverished countries or countries torn apart by conflict are at the highest risk for persistent corruption, as unscrupulous officials may take advantage of desperation to line their own pockets. The report did find significant improvement in many African and South East Asian countries from last year's report: Scores are significantly higher in several African countries in the 2007 CPI. These include Namibia, Seychelles, South Africa and Swaziland. These results reflect the positive progress of anti-corruption efforts in Africa and show that genuine political will and reform can lower perceived levels of corruption.

• Federal judge rules Patriot Act search, surveillance provisions unconstitutional

An US district judge ruled that two provisions of the USA Patriot Act that deal with physical search and electronic eavesdropping are unconstitutional. Brandon Mayfield an Oregon attorney arrested and detained for two weeks in May 2004 after the FBI mistakenly concluded that his fingerprints matched those found on a bag containing detonators used in the 2004 Madrid train bombings challenged the USA Patriot Act provisions which amended the Foreign Intelligence Surveillance Act and allowed investigators to search his home and office. The judge held that the search had violated Mayfield's Fourth Amendment rights against unreasonable search and seizure.

• US federal prisons return religious materials to prison libraries

The US federal Bureau of Prisons (BOP) said that it will reshelve all religious material taken from prison chapel libraries originally determined to fall outside of the agency's approved list of materials. The BOP made the decision to temporarily end the Standardized Chapel Library Project in light of growing criticism from a wide spectrum of religious and secular leaders. The BOP says it produced the list of limited material based on a 2004 report by the US Department of Justice Office of the Inspector General, which provided recommendations for curbing violence and derogation related to Muslim extremism in the wake of the Sept. 11 terrorist attacks. The BOP will begin to return all religious material to chapel libraries, except anything deemed to incite violence or encourage radicalism. Earlier, several inmates in a federal penitentiary in New York filed a lawsuit against the BOP claiming that the removal of religious texts violated the First Amendment and the Religious Freedom Restoration Act.

• Myanmar police raid monasteries, arrest monks as violence continues

Myanmar police arrested dozens of Buddhist monks during dawn raids on two monasteries, one day after police opened fire on anti-government protesters killing at least eight and arresting over 300. The monks are leading the protests against the government, which they accuse of human rights abuses, including the detention of demonstrators who peacefully protested a sharp rise in fuel prices in August. Tens of thousands of citizens have joined the marching monks in what has become the largest demonstration in the country since a pro-democracy uprising in 1988. The government tolerated the anti-government protesters for a month, but the military government banned public gatherings of more than five people and imposed a curfew in response to the anti-government protests.

• ICTY convicts leader in Vukovar massacre

The International Criminal Tribunal for the former Yugoslavia (ICTY) handed down judgments on war crimes suspects Mile Mrksic, Miroslav Radic and Veselin Sljivancanin who were accused of killing some 200 Croatian POWs at a pig farm near Vukovar. The court found Mrksic guilty on three counts of war crimes and sentenced him to 20 years in prison for his part in the massacre.