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[No.82]
April 10, 2004 |
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International Legal News
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Cases
Source:
Westlawinternational.com
A defendant was liable for the second
degree implied malice murder of an 11 to 13-week-old fetus, even in the absence
of evidence he knew that the woman he killed was pregnant. The pregnancy was not
yet visible. Nevertheless, in battering and shooting the mother, the defendant
acted with knowledge of the danger to life, and a concious disregard for life in
general, which was all that was required for implied malice murder. The
defendant did not need to be specifically aware how many potential victims his
conscious disregard for life endangered.
People v. Taylor
A federal court ordered a number of
federal government departments and agencies, including the Departments of the
Interior and Energy, to reexamine their denials of requests, under the Freedom
of Information Act, for records pertaining to an interagency task force on
national energy policy, because the agencies were not entitled to protect, under
the deliberative process privilege, any documents relating to the task force's
deliberations. The task force was not a federal "agency" for purposes
of the Act, and thus its contacts with the agencies and departments were not
inter-agency communications, which was required for application of the
exemption.
Judicial Watch, Inc. v. U.S. Dept. of
Energy
The trial court was not authorized to
award a prevailing worker attorney fees that she incurred before the Board of
Industrial Insurance Appeals, in addition to those attorney fees that she
incurred in court. The applicable statute authorized attorney fees only for
proceedings before the court, and contained no provision for the recovery of
attorney fees rendered before the Board.
Piper v. Department Of Labor And
Industries
When an employee and an employer
continue an employment relationship after the term of duration contained in a
written employment contract, the original contract is presumed to renew
automatically under the same terms and conditions until either party terminates
the contract. However, the contract's duration does not presumptively renew.
Ringle v. Bruton
The New York Court of Appeals has held
that a mother may recover damages for emotional distress when medical
malpractice causes miscarriage or stillbirth, even in the absence of an
independent injury to the mother. The miscarriage or stillbirth should be
construed as a violation of a duty of care to the expectant mother.
Broadnax v. Gonzalez
The People's failure to obtain a
recommitment order for a sex offender who was found to be a sexually violent
predator under the Sexually Violent Predator Act (SVP Act) within the two-year
period of his initial commitment did not deprive the trial court of jurisdiction
to entertain two subsequent recommitment petitions. The recommitment petitions
were filed before the expiration of the respective underlying terms, and the
statutory scheme did not require that the recommitment order be obtained before
the expiration of the underlying term.
Orozco v. Superior Court
The early retirement provisions in a law
firm partnership agreement, requiring retirees to permanently retire from the
practice of law except for public service activities related to the law,
contained sufficient indicia of a bona fide retirement arrangement, for purposes
of the professional conduct rule generally prohibiting employment agreements
restricting a lawyer's right to practice law after the termination of the
employment relationship but providing an exception for agreements concerning
retirement benefits. The provisions contained minimum age requirements, benefit
calculation formulas, and a defined term for benefit payouts, with benefits
payable over five-year or ten-year periods and increasing as the years of
service to the firm increased. The benefits were funded at least in part from
revenues post-dating a partner's retirement, making it reasonable to prohibit a
retiring partner from competing with the firm.
Borteck v. Riker, Danzig, Scherer,
Hyland & Perretti LLP
In a negligence action in Illinois
against an alleged tortfeasor, a parent of a minor child, who was injured in an
automobile accident caused by the alleged tortfeasor, could recover for the
reasonable value of services rendered to the child by the parent following the
accident. It was reasonably foreseeable that an injury to the child would result
in the parent expending time in caring for the child and that there was
sufficient likelihood of the parent suffering pecuniary injury.
Worley v. Barger
The United States Supreme Court has
refused to grant certiorari in a case in which the Eighth Circuit Court of
Appeals, in affirming a grant of summary judgment in favor of an employer, held
that, although a male supervisor's alleged conduct towards a male employee was
inappropriate and vulgar, the employee did not show that the alleged conduct was
"because of sex," as required for a prima facie case of same-sex
sexual harassment under Title VII. The Court of Appeals stated that there was no
evidence to demonstrate that the supervisor was homosexual and motivated by
sexual desire toward the employee. Nor was there evidence that the supervisor
was motivated by a general hostility to the presence of males in the workplace.
McCown v. St. John's Health System,
Inc.
IPR Cases
The United States Supreme Court
has denied a petition for certiorari in a Federal Circuit case affirming the
U.S. Patent and Trademark Office's (PTO's) refusal to conduct an interference
between a "species" claim to a specific cDNA sequence coding for a
particular human protein and a "genus" claim to the class of cDNA
sequences coding for that protein on the ground that, under the agency's
interference rules, the species and genus claims were not directed to "the
same patentable invention." The United States patent laws permit the PTO to
determine whether two patent applications (or a patent application and an issued
patent) are drawn to the "same patentable invention" and, if so, to
conduct an interference proceeding to decide the priority of invention--who was
first to invent the claimed subject matter and is therefore entitled to the
patent.
Eli Lilly & Co. v. Board of
Regents of University of Washington
Denying certiorari, the United States Supreme
Court will not review a determination of the Federal Circuit that questions of
patent definiteness are amenable to resolution by a jury where the issues are
factual in nature and that a jury's definiteness determination should be upheld
if it is supported by substantial evidence. The case involved a claim of patent
infringement brought by the owner of a patent for a method of fracturing
subterranean formations to stimulate oil and gas wells. Among other things, the
competitor defended on the basis that the patent claim was indefinite.
Halliburton Energy Services, Inc. v. BJ
Services Co.
News
Taiwan's main opposition party
has re-submitted a lawsuit to invalidate last month's knife-edge presidential
election, refreshing their push for a new vote amid a deadlock over how a
recount should proceed. President Chen Shui-bian narrowly defeated Nationalist
leader Lien Chan, a day after Chen was slightly wounded in an assassination
attempt. The Nationalists say the shooting led to a swell of sympathy votes and
may have been staged.
The Ukrainian parliament
rejected a package of constitutional amendments denounced by opponents as an
attack on democracy. The amendments needed two-thirds approval, but received
only 294 votes in the 450-seat Verkhovna Rada after a day of heated debate. The
hall resounded with opposition lawmakers' triumphal whistles. The proposed
amendments, which have been at the center of months of roiling political
tensions, can be brought up for a vote again.
A 17-year-old convicted
murderer was released by mistake while attending a Scottish court. James
McCormick was convicted of fatally stabbing and killing another 17-year-old in
July in Glasgow. He had been appearing in court on an unrelated matter when he
was mistakenly released. The Scottish Prison Service said it believed McCormick
might be dangerous and warned the public not to approach him.
The Supreme Court will release
audio tapes immediately after oral arguments in major cases about the U.S.
government's response to terrorism and Vice President Dick Cheney's closed-door
sessions to develop a national energy policy. The first tape will cover the
April 20 arguments about the legal rights of foreign fighters detained at the
U.S. Navy's prison camp at Guantanamo Bay. The Cheney case, to be argued on
April 27, involves attempts by environmental and government watchdog groups to
learn who helped draft an energy policy friendly to industry.
Supreme Court Chief Justice
William H. Rehnquist praised a predecessor, Roger Brooke Taney, as a great
justice whose career was "unfortunately marred" by his opinion that
slaves were property, not citizens. Taney, chief justice from 1836 to 1864, was
the author of the 1857 Dred Scott decision, which inflamed anti-slavery groups
and became a catalyst for the Civil War. Writing for the seven-member majority,
Taney wrote that even freed slaves and their descendants were not citizens and
had no standing to sue in the federal courts. Taney also wrote that Congress
could not forbid slavery in U.S. territories, overturning the Missouri
Compromise of 1820.
A subsidiary of Houston-based
energy company Reliant Resources <RRI.N> and four of its officers were
charged on with manipulating prices during California's energy crisis in 2000
and 2001, reaping millions in illegal profits. The charges were first against a
corporation for engaging in fraudulent, manipulative trading practices during
the crisis, when soaring electricity prices triggered rolling blackouts.
According to the indictment, the defendants devised an illegal scheme to drive
up prices by shutting down four of the unit's five power generation plants in
the state, creating the appearance of a shortage and falsely telling markets
environmental limits and maintenance problems were to blame.
A U.S. military lawyer assigned
to defend Osama bin Laden's former driver, now a Guantanamo detainee, claims in
a lawsuit against the Bush administration that trying terror suspects by
military tribunal violates U.S. and international law and called the tribunal
system an unconstitutional expansion of executive branch powers. The suit, filed
in federal court claims the government has violated the driver’s rights by
holding him without charges wherein he could serve a life sentence without
getting a chance to prove his innocence.
Legislation expected to save
U.S. companies more than $80 billion in pension contributions over two years was
approved by the U.S. Congress and now goes to President Bush for his expected
signature into law. Final action came with approval by the Senate, 78 to 19. The
measure having already been passed, the House of Representatives, and supporters
were anxious to get it to the president's desk in time to give a break to
companies that have to make quarterly pension payments on April 15.
The agency charged with
protecting federal employees from bias in the workplace revised its policy to
include sexual orientation. Bowing to pressure from the White House, the Office
of the Special Counsel reinstated the long-standing anti-discrimination policy,
which it had put on hold in February pending a "legal analysis" with
an aim to prohibit discrimination in the federal workforce on the basis of
sexual orientation.
The Justice Department acted to
stop promoters from selling a tax shelter that takes advantage of tax laws meant
for churches and church leaders by filing suit in federal courts in Washington,
Oregon and Texas which would stop six individuals from selling the scheme and
make them surrender a list of customers. Customers were allegedly advised to
create a company known as a "corporation sole" and transfer their
assets and income to this corporate soul but actually used by churches,
religious institutions and church leaders.
A white supremacist accused of soliciting the
murder of a federal judge wore prison garb as his trial got under way despite
the warning of the trial judge that it was a bad idea. Matt Hale, 32, insisted
on wearing the bright orange prison jumpsuit as he sat at the defense table in
front of 100 potential jurors who crowded the courtroom for questioning. The
normal practice is that most defendants facing federal trial change into coats
and ties, either their own or what the government buys for them, but Hale
indicated through his attorneys that he preferred the prison garb. U.S. District
Judge James T. Moody told him wearing the jumpsuit was "a bad idea"
and "could be prejudicial," but he left the choice to Hale.
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SEBI
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Secondary
Market Division
Circular No. SEBI/DNPD/Cir-22/04
Dated 01.04.2004 : To resolve the issue of inter-operability between the STP
Service Providers, it has been decided in consultation with the stock exchanges
and the STP Service Providers that a STP Centralised Hub would be setup.
Currently this STP Centralised Hub has been setup and made operational by NSE.
NSE has obtained the necessary approvals from Department of Telecommunications (DoT)
as an Internet Service Provider (ISP). Subsequently this STP Centralised Hub
would be further developed jointly with BSE. In view of these developments, it
has been decided that all the institutional trades executed on the stock
exchanges would be mandatorily processed through the STP System w.e.f July 01,
2004. This circular is being issued to provide adequate notice to the market and
market participants about the mandatory use of STP Service for institutional
trades.
Circular No. MAPIN/Cir-17/2004
Dated 31.03.2004 : Taking into account the extent of work and logistics involved
in obtaining the Unique Identification Number (UIN), it has been decided that
the notified date for the purpose of sub - regulation 1 of regulation 4 of the
Central Database of Market Participants Regulations, 2003 would be June 30, 2004
instead of March 31, 2004.
Circular No. SEBI/MRD/SE/SU/Cir-16/04
Dated 31.03.2004 : Since the notified date for obtaining the new Unique
Identification Number (UIN) by the intermediaries registered with SEBI has been
postponed to June 30, 2004 and some intermediaries have informed SEBI that as at
present, they are not in a position to obtain UIN for all their clients availing
of margin trading facility in a short period of time on account of logistic
difficulties, it has been decided to allow a further period of 3 months, i.e. up
to June 30, 2004, to the clients who want to avail margin trading facility to
obtain an UIN. Till such time the clients obtain the UIN, the broker shall
obtain suitable undertaking from the clients and do due diligence to ensure that
the client is not availing the margin trading facility from more than one broker
at any point of time.
Foreign
Institutional Investor
Circular No. IMD/CUST/16/2004
Dated 02.04.2004 : It has been reiterated that the stock exchanges would
generate Unique Client Codes (UCC) for institutional investors including FIIs
and their sub-accounts. In order to identify the trades through multiple members
of the Stock Exchanges and for the purpose of better risk management, it has
been decided that FIIs/sub-accounts while trading in the Indian securities
market would be required to inform the UCC to the member brokers. The use of UCC
for trading through brokers will be made compulsory from a future date which
will be announced separately.
Circular No. IMD/CUST/15/2004
Dated 02.04.2004 : The FIIs who do not have any outstanding off-shore
derivatives were required to submit a statement of 'Nil' report once in a
quarter. Now it has been decided to dispense with "Nil" reporting by
those FIIs / Sub-accounts. Therefore, FIIs who have not traded and have no
outstanding investments in Indian securities during a particular month
(reporting period) will henceforth not be required to submit " Nil"
Reports for the month. Additionally, the reporting format, where the reporting
is required, has been modified by inserting a new column B1 titled "Name
and jurisdiction of the regulator by whom the offshore derivatives holder is
regulated" . The modification is consequential to insertion of Regulation
15 A in the Securities and Exchange Board of India (FII) Regulations, 1995.
Regulations
Notification No. SO398(E) Dated
10.03.2004 : SEBI has made & issued Securities and Exchange Board of India
(Criteria for Fit and Proper Person) Regulations, 2004. The regulations have
been brought into force from 26.03.2004. These regulations aim at the
determination by the SEBI for the grant or renewal of the certificate to act as
an intermediary under one or more regulations as specified in the schedule to
the above captioned regulations. In the precise words a criterion has been
designed to determine "fit and proper person" to act as intermediary.
There are around 15 different regulations has been specified in the schedule in
this behalf.
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Department of Company Affairs
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Notification No. GSR212(E)
Dated 24.03.2004 : Amendments have been made in the Companies (Particulars of
Employees) Rules, 1975 according to which an exception has been inserted while
providing the particulars of the employees in the Board's report. The exception
is related to the employees working in the Information Technology sector. As per
the inserted provisio :
"Provided that particulars
of employees of companies engaged in "Information Technology" sector,
posted and working in a country outside India, not being directors or their
relatives, drawing more than rupees twenty four lakh per financial year or
rupees two lakh per month, as the case may be, shall not be included in such
statement of the Board's report but such particulars shall be furnished to the
Registrar of Companies:
Provided further that such
particulars shall be made available to any shareholder on a specific request
made by him during the course of annual general meeting in which the same is
considered."
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CBDT
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Notification No. 128/2004 Dated
31.03.2004 : The CBDT has amended the Income-tax Rules, 1962 by making an
insertion of a new rule 16F. As per the new inserted rule a form has been
introduced, Form No. 56H. The form is a report for claiming deduction u/s Sec
10BA of the Income Tax Act, 1961 which pertains to deduction in respect of
profits arising out of exports of certain eligible articles.
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CBEC Customs Tariff
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Circular No 28/2004 Dated
06.04.2004 : It has been clarified that where a claim of benefit under
Notification No. 51/96-Cus.,dated 23.7.1996, in which it has been allowed levy
of concessional rate of duty @5% on the import of scientific instruments,
apparatus, equipment and spare parts when imported by public funded research
institutions and non-commercial research institutions that are registered with
the Department of Scientific and Industrial Research (DSIR), Ministry of Science
& Technology, is made by a privately funded College or educational
institution, that is not a public funded research institution or non-commercial
research institution, the benefit of notification can be considered on the basis
of essentiality certificate issued by the University to which the said college
or educational institution is affiliated, on case to case basis, provided that
the said University falls under the eligible category of importers under the
said Notification
Circular No. 26/2004 Dated
31.03.2004 : The matter of leviability of CVD on lacs, gums, resins etc. has
been brought to the notice of the Board. The issue was related classification of
lacs, gums, resins etc as if these items are manufactured with the aid of power,
the these are classifiable under 1301.10 of CETH and attract 16% CE duty. In
case these items are manufactured without the aid of power, the classification
would be under 1301.90 of CETH and attract 'nil' CE duty.
The matter has been examined
keeping in the view the CEGAT decision in case of M/s Sudharsan Pine Products
[1999(111) ELT (TRIB)] where the benefit of exemption has been allowed in
respect of such goods on the basis of a simple declaration by the supplier.
Board clarified that It has been noted that no appeal has been filed against the
decision in the case of Sudharsan Pine Products. It would therefore not be
appropriate to ignore it. However, the Deptt. would be within its rights to
verify through our missions abroad, or otherwise, the claim of the supplier or
the importer (about non-use of power) and till then the assessments could be
kept provisional. However, a certificate from the Chamber of Commerce or a Govt.
agency of the supplying country to the effect that the product has been
produced/extracted without the use of power, can be accepted.
Circular No. 25/2004 Dated
31.03.2004 : The matter of date of imposition of final anti dumping duty on the
Lead Acid batteries from Bangladesh has been examined by the Board and an
explanation to this effect has been provided. According to the explanation final
anti-dumping duty can be levied with retrospective effect from the date of
imposition of the provisional anti-dumping duty only if a provisional duty was
levied and the designated authority had recorded a final finding of injury. In
the present case, even though the designated authority had recorded a final
finding of injury, since there was no provisional duty on imports of lead acid
batteries from Bangladesh, no anti-dumping duty can be levied on such imports
from Bangladesh during the period 9.4.2001 to 1.1.2002. Therefore, it has been
clarified that final anti-dumping duty on such goods from Bangladesh is
effective only from 2.1.2002 and not from the date of imposition of the
provisional anti-dumping duty.
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Service Tax
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Notification No. 4/2004 Dated
31.03.2004 : The Central Government has exempted taxable service to a developer
of Special Economic Zone or a unit (including a unit under construction) of
Special Economic Zone by any service provider for consumption of the services
within such Special Economic Zone, from the whole of service tax leviable
thereon, subject to the following conditions, namely:-
(i) the developer has been
approved by the Board of Approvals to develop, operate and maintain the Special
Economic Zone;
(ii) the unit of the Special
Economic Zone has been approved by the Development Commissioner or Board of
Approvals, as the case may be, to establish the unit in the Special Economic
Zone;
(iii) the developer or unit of
a Special Economic Zone shall maintain proper account of receipt and utilisation
of the said taxable services.
Circular No. 78/8/2004 Dated
23.03.2004 : The matter of levy of service tax on the activities undertaken by
the television serial producers, who either sell TV serial episodes to the TV
channels or allow such episodes to be telecast by the channels in the lieu of
procurement of Free Commercial Time (FCT), which is sold by them to advertising
agencies for showing advertisements has been examined. Acordingly, the taxable
service i.e. "videotape production service" is on the process of recording
of any programme, event or function on magnetic tapes (including editing
thereof). The tax is therefore limited to the technical function of recording or
editing what is recorded and not on the entire gamut of production of serials.
In case the producer hires a video-grapher or an editor, the payment made for
services would be taxable at the hands of such service providers. However, no
tax is leviable on the producers for selling the serial to channel. Similarly,
in case of FCT, selling the time allotted to a producer does not fall within the
purview of "advertisement service" since this activity is not connected to
making, preparation, display or exhibition of advertisement. This is akin to
providing space in a newspaper or magazine for publishing an advertisement and
has nothing to do with actual presentation of the advertisement.
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RBI
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Circular No. A.P.(DIR Series)
Circular No. 82 Dated 01.04.2004 : The RBI on the basis of the queries received
on revised ECB guidelines has provided the following clarifications :-
1.End Use : Prior to February
1, 2004, eligible borrowers were permitted to raise ECB under the Automatic
Route equivalent to USD 50 million per financial year for general corporate
purpose. Under the revised ECB guidelines, however, end-uses of ECB for working
capital, general corporate purpose and repayment of existing Rupee loans are not
permitted
2. Amount of ECB under the
Automatic Route - It has been clarified that the maximum amount of ECB which can
be raised by an eligible borrower under the Automatic Route is USD 500 million
or equivalent during a financial year.
3. Borrowers availing ECB since
February 1, 2004 are required to submit ECB -2 Return on a monthly basis
certified by the designated Authorised Dealer. It has been clarified that all
existing borrowers are also required to submit ECB -2 Return on a monthly basis
from January 2004 onwards.
4. At present, borrowers, who
had availed ECB under erstwhile USD 5 Million Scheme with specific approval of
Reserve Bank, approach the Reserve Bank for elongation of repayment period. It
has been decided to delegate general permission to the designated AD to approve
such elongation provided there is a consent letter from the overseas lender for
such reschedulement without any additional cost. Such approval with existing and
revised repayment schedule along with the Loan Key/Loan Registration Number
should be initially communicated to the Chief General Manager, Foreign Exchange
Department, Reserve Bank of India, Central Office, ECB Division, Mumbai within
seven days of approval and subsequently in ECB - 2.
Notification No. DBOD.IBS.BC/
72 /23.13.004/2003-04 Dated 01.04.2004 : OBUs are permitted to raise foreign
currency funds only frm external sources and that funds can also be raised from
those resident sources to the extent such residents are permitted under the
existing exchange control regulations to invest/maintain foreign currency
accounts abroad. The matter as to whether under the "Liberalised Remittance
Scheme US $ 25,000 for Resident Individuals", notified in terms of A.P (Dir
Series) Circular No 64 dated February 4,2004, the OBUs set up in India can be
allowed to open and maintain foreign currency accounts of resident individuals
has been reviewed and it has been decided that the OBUs in SEZs will not be
allowed to open foreign currency accounts of residents.
Notification No. GSR209(E)
Dated 06.03.2004 : The amendment has been made in the Foreign Exchange
Management (Foreign Currency Accounts by a Person Resident in India)
Regulations, 2000 in sub-para (iv) of para 3 of the Schedule, in which the words
"not exceeding US $ 3 million" have been deleted. Para 3 tells about
the Permissible debits to the EEFC Account. The amount relating to Trade related
loans/advances, by an exporter holding such account to his importer customer
outside India, now can be debited to EEFC account to any extent with the
deletion of earlier limit of maximum up to US $ 3 million. The amendment has
been made effective from 23.03.2004.
Notification No. GSR208(E)
Dated 06.03.2004 : Amendment has been made in the Foreign Exchange Management
(Borrowing or Lending in Foreign Exchange) Regulations, 2000. According to
amendment made, a person resident in India may lend in foreign currency out of
funds held in his EEFC account, for trade related purposes to his overseas
importer customer subject to the condition that where the amount of loan exceeds
US $ 100,000, a guarantee of a bank of international repute situated outside
India is provided by the overseas borrower in favour of the lender. Earlier
required guarantee was needed in case where the loan amount exceeds US $ 25,000.
Now the limit has been enhanced to US $100,000. The amendment has been made
effective from 23.03.2004.
Notification No. GSR207(E)
Dated 05.02.2004 : In Foreign Exchange Management (Permissible Capital Account
Transactions) Regulations, 2000 restrictions have been placed on the usage of
foreign exchange for the Capital Account Transactions other than the permissible
one. Amendment has been made in the regulation 4(a) of the said regulations and
some flexibility has been provided with regard to sale or withdrawal of forex
for any capital account transaction. According to the amendment now a no person
may undertake or sell or draw foreign exchange to or from an authorised person
for any capital account transaction subject to conditions that :
A resident individual may draw
from an authorized person foreign exchange not exceeding US D 25,000 per
calendar year for a capital account transaction specified in Schedule I which
contains Capital account transactions for person resident In India. This
flexibility has been subjected to a further restriction that no part of the
foreign exchange of US $ 25,000 drawn as above shall be used for remittance
directly or indirectly to countries notified as non-cooperative countries and
territories by Financial Action Task Force (FATF) from time to time and
communicated by the Reserve Bank of India to all concerned.
Notification No. IDMD.PDRS. 05
/10.02.01/2003-04 Dated 29.03.2004 : It has been decided to permit sale of a
government security already contracted for purchase, provided:
(i) the purchase contract is
confirmed prior to the sale,
(ii) the purchase contract is
guaranteed by CCIL or the security is contracted for purchase from the Reserve
Bank and,
(iii) the sale transaction will
settle either in the same settlement cycle as the preceding purchase contract,
or in a subsequent settlement cycle so that the delivery obligation under the
sale contract is met by the securities acquired under the purchase contract
(e.g. when a security is purchased on T+0 basis, it can be sold on either T+0 or
T+1 basis on the day of the purchase; if however it is purchased on T+1 basis,
it can be sold on T+1 basis on the day of purchase or on T+0 or T+1 basis on the
next day).
Press Release No.
2003-2004/1162 Dated 31.03.2004 : The Ways and Means Advances (WMA) to the
Government of India have been reviewed in consultation with the Government of
India and the following arrangements will be in force for the fiscal 2004-05.
i) The limit for WMA will be
Rs.10,000 crore for the first half of the year (April to September) and Rs.
6,000 crore for the second half of the year (October to March). When 75 percent
of the limit of WMA is utilized by Government, the Reserve Bank may trigger
fresh floatation of market loans depending on market conditions.
ii) The interest rate on WMA
will be as under:
a) Ways and Means Advances Bank
Rate
b) Overdraft Two percent above
the Bank Rate
iii) The minimum balance
required to be maintained by the Government of India with the Reserve Bank of
India will not be less than Rs.100 crore on Fridays, on the date of closure of
Government of India's financial year and on June 30, i.e, closure of the annual
accounts of the Reserve Bank of India and not less than Rs.10 crore on other
days.
Press Release No.
2003-2004/1153 Dated 29.03.2004 : The Reserve Bank of India today directed
Securitisation Companies and Reconstruction Companies that their minimum Owned
Fund shall be not less than fifteen percent of the total financial assets
acquired or to be acquired by the Securitisation Company or Reconstruction
Company on an aggregate basis, or Rs. 100 crore, whichever is less. It has been
clarified that the minimum Owned Fund has to be maintained irrespective of
whether the assets are transferred to a trust set up for the purpose of
securitisation or not, and until realisation of assets and redemption of
security receipts issued against such assets.
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DGFT
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Circular No. 31
(RE-2003)/2002-2007 Dated 01.04.2004 : the DGFT through its circular tried to
solve the dual purpose, One is to remind the expiry dates of the filing of the
IEC Trade Returns and Submission of Online Applications and to make the importer
- exporter community aware of use of electronic commerce. DGFT reiterated that
all the IEC holders who were required to file their annual trade returns on
imports/exports for the FY 2002-03 by 31st March 2004 and the same can submitted
online on the DGFT website. similarly, it has been cleared that the facility for
submitting online applications on the DGFT website is available for the benefit
of the Exim community. Applications submitted online are given the benefit of a
50% reduction in licence fee. The online facility not only reduces the
transaction costs to the exporter but also considerably improves the delivery of
services provided by DGFT .
Trade Notice No. 12/2004 Dated
23.03.2004 : Members of the Trade are aware that filing an IEC Trade Return is
mandatory for all the IEC holders. The date for filing the Trade Return had been
extended on users demand and it had been last extended to 31st March 2004. The
IEC holders had been directed that failing to file trade returns online by this
date may risk deactivation of their IEC numbers.
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Department of
Telecommunications
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Notification No. GSR220(E)
Dated 26.03.2004 : Indian Telegraph Rules, 1951 have been amended by making the
insertion of Part- X relating to Universal Service Obligation Fund. According to
the newly inserted Part, a fund is created for the purpose of providing access
to basic telegraph services to people in the rural and remote areas at
affordable and reasonable prices. Powers of the administrator, as appointed by
the Central Government, has been defined to administer the fund in the proper
way and to prevent the misutilisation. Criteria for selection of Universal
Service Provider has been provided according to which selection shall be made on
the basis of the bidding process.
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Press Information Bureau
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Dated 02.04.2004 : The
Government Accounting Standards Advisory Board (GASAB) has issued Exposure
Drafts on the subjects of "Accounting and Classification of Grants-in-aid"
and "Cash Flow Statements". The Exposure Draft on "Accounting and
Classification of Grants-in-aid" deals with the accounting and classification
requirements of grants-in-aid released by Union and State Governments to various
bodies and institutions and governments in the case of Union Government. It also
proposes disclosure requirements of such grants-in-aid in the Financial
Statements of the Union and State Governments. It specifically suggests that
grants-in-aid released for the purposes of creation of capital assets should be
disclosed distinctly. The Exposure Draft on "Cash Flow Statements" mandates
the requirement for presentation of Cash Flow Statements as an integral part of
Financial Statements of the Union and the State Governments by classifying
Government cash flows under operating, investing and financing activities.
Information about cash flows of a Government will enable users to make and
evaluate decisions about the allocation of resources and certainty of its cash
flows. Historical cash flow information may also be used as an indicator of the
amount, timing and certainty of future cash flows.
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Supreme Court |
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The extent of jurisdiction of
election tribunal to direct recounting of votes was the primal question
involved in the appeal. The private parties in the case contested an
election for the post of Mukhiya of Raj Gamhariya, Gram Panchayat. The
contention of the appellant was that the returning officer had informed
him that he got 670 valid votes whereas the respondent had secured only
622 votes. However, when the result was finally declared the respondent
was declared elected by securing allegedly 32 more votes than the
appellant herein. The appellant thereafter filed an election petition
questioning the election of the respondent. The election petition of the
appellant was rejected by the High Court.
The Supreme Court held that an
election petition, must contain concise statement of material facts. The
averments made in the election petition clearly showed that the
appellant was aware of his right to file an appropriate application
before the returning officer praying for a recounting. If the said
application was not entertained, he should have proved the said fact by
bringing on record the original application which was refused to be
accepted or a copy thereof. Filing of such an application, the basis for
making a request for recounting of votes, is required to be disclosed.
It was further held that ordinarily it is expected that the statutory
remedies provided for shall be availed of. If such an opportunity is
availed of by the Election Petitioner; he has to state the reasons
therefor. If no sufficient explanation is furnished by the Election
Petitioner as to why such statutory remedy was not availed of, the
Election Tribunal may consider the same as one of the factors for
accepting or rejecting the prayer for recounting. The requirement of
maintaining the secrecy of ballot papers must also be kept in view
before a recounting can be directed. Narrow margin of votes between the
returned candidate and the election petitioner by itself would not be
sufficient for issuing a direction for recounting.
One Currency Officer of the
appellant asked respondent, the Assistant Currency Officer in Grade-C to
look after, on 3.10.1988, the duties of Assistant Currency Officer
(Grade-B), who had proceeded suddenly on casual leave. It was the case
of the appellant that respondent refused to comply with the orders of
the currency officer stating that he cannot be asked to discharge the
functions of Grade-B officer. In the preliminary enquiry preceding the
charge-sheet, the said respondent in reply to show-cause notice stated
that on the said date seven Grade-B officers were present on duty and
only one of them had applied for casual leave; that he had never
operated the vault in the past; that vault duties were entrusted to
Grade-B officers and as such, except in emergency, a Grade-C officer
was, entrusted with such duties and, therefore, he did not intend
insubordination. The issues for consideration before the Supreme Court
were, firstly, whether the appellant was justified in imposing the
penalty of lowering the substantive pay of the respondent by one stage
permanently; and secondly, whether the High Court was right in setting
aside the entire selection and directing the appellant to promote
respondent to scale-D w.e.f. 1989.
On the first point, the Supreme
Court held that the conduct of respondent was not such as to warrant
disciplinary action. In the preliminary enquiry, respondent had given
his explanation and it was not a case of any insubordination or
disobedience as alleged. Regarding the second issue whether the High
Court was right in setting aside the entire selection with the direction
to the appellant to consider the said respondent for promotion to
scale-D from 1989, the Court held that the High Court had erred in
setting aside the selection and in directing the appellant bank to
consider respondent for promotion from 1989. The appellant had
constituted high power Selection Board presided by a retired Judge of
the Bombay High Court. The Board was entitled to formulate its own
procedure. The Hon’ble Court held that on facts it could not be said
that the Board had taken into account extraneous factors.
The issue for consideration
before the Apex Court was “whether the election petition filed by the
appellant was lacking in material facts as required under Section
83(1)(a) of the Representation of the People Act, 1951 (hereinafter
referred to as "the said Act")” ? The nomination papers of
the appellant, who was a member of the Indian Administrative Services,
was rejected for want of three months notice period to the appointing
authority. Section 83 of the said Act which dealt with contents of
petition stated that “an election petition shall contain a concise
statement of material facts, on which the petitioner relies and shall
state full particulars of any corrupt practices which petitioner alleges
and which shall be signed by him and verified in the manner laid down in
the Code of Civil Procedure.”
As to what constituted the
material fact that was required to be stated in the election petition,
the Hon’ble Court held that an election petition being a matter of
statutory right in which the appellant ought to have stated, in the
instant case, the date on which he had requested for waiver of the
notice period; that the appointing authority had received the notice on
the specified date and that his request for waiver stood granted on the
date of scrutiny and he ceased to be a government servant. These were
material facts within his knowledge and ought to have been pleaded in
the election petition. Since even the letter of the appellant seeking
the waiver of the notice period did not form part of the election
petition, hence no merit was found in the argument of the appellant. It
further held that material facts are primary facts disclosing cause of
action and such facts have got to be pleaded and failure to do so shall
result in rejection of election petition though defect in material
particulars can be cured at a later stage by amendment.
The question for consideration
before the Supreme Court was whether the revised pay-scales of skilled
and semi-skilled staff working in the Printing and Stationary department
were applicable w.e.f. 1.1.1986 (when IIIrd Punjab Pay Commission gave
its report) or w.e.f. 14.2.1989 when the State Government issued its
notification implementing the recommendations of the Pay Commission. The
appellant took the stand that fixation of the date for grant of revised
pay scales is within the discretion of the Government.
The Apex Court observed that
keeping in mind the recommendations of the IIIrd Punjab Pay Commission
to rationalize recruitment, qualifications, designation and
restructuring of the cadres by amendments to the service regulations,
the Administrative Department made proposals on 26.10.1988. In the light
of these recommendations, certain departments came in for restructuring
and consequently, higher revised scales came to be granted
prospectively. Accordingly, scales of pay of semi skilled and skilled
staff of the Transport Department, Printing and Stationary Department
herein were enhanced w.e.f. 14.2.1989. It held that in view of the above
position the respondents herein would be entitled to revised pay scales
w.e.f. 1.1.1986, notionally for calculation of retiral benefits but they
will not be paid arrears of the difference in the pay scales from that
date, as claimed. |
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High Courts and
Tirbunals |
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Delhi
The Petitioner was
aggrieved by an Award passed by the learned Labour Court concluding
that an employee of the petitioner was a workman within the meaning of
Section 2(s) Industrial Disputes Act, 1947
The court held that
the documentary evidence on record clearly showed that the work of the
employee was of a highly qualified and specialized consultant, in the
field of risk management. The nature of work clearly involved
creativity and imagination not merely manual work. Therefore he would
not be a skilled workman doing manual or non-manual work within the
meaning of Section 2(s) Industrial Disputes Act, 1947. Court further
held that a writ court should not normally interfere with a finding of
fact arrived at by the learned Labour Court, but it was necessary to
interfere as the Labour Court had not followed the decision of H.R.
Adyanthaya vs. Sandoz (India) Ltd. held by supreme court and question
of law did arise.
SEBI
The 100% increase in
share price of Aftek Infosys Limited in short period of time coincided
with some significant corporate events. SEBI conducted an investigation
and found out that Aftek obtained finance from Ketan Parekh entities
for purchase of shares from IDBI and later on transferred the shares to
the Ketan Parekh entities pursuant to financing cum option agreement
and enabled him in acquiring large number of shares at a lower price
which facilitated price manipulation by Ketan Parekh. A show cause
notice was issued and an opportunity of being heard was also given to
the petitioner.
SEBI held that as per
the finance cum option agreement, in the event of default by the
borrower, the financier could sell or dispose off the shares without
notice and could adjust or apportion the said security shares or part
thereof towards outstanding financial assistance and interest thereon
without any recourse to the borrower. Moreover the price had been going
up right from the time agreement was entered into and any person of
ordinary prudence would have either asked for adjustments of the loan
towards the market price or asked for the difference and release of
pledge even if he was unable to repay the loan or he could have even
made alternative arrangements for repayment of the loan and taken
possession of the shares which commanded much higher price over what
acquirers had paid to IDBI. Court further held that the acts of the
promoters had disturbed the market equilibrium by creating artificial
demand thereby distorting the price discovery mechanism of the exchange
and detrimental to the interest of investors and orderly development of
security market. Therefore, SEBI prohibited the promoters of Aftek from
buying, selling or dealing in securities for a period of one year.
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(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
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