28 May, 2009

SC gives govt role in pvt colleges

Ruling In Interest Of Maintaining High Standards Of Education In Unaided Institutes
The SC on Wednesday said the state has a responsibility to maintain high standards of education and is hence competent to regulate admissions even in unaided private professional colleges.
This important order came from a vacation Bench comprising Justices Markandey Katju and Deepak Verma, which ordered that private unaided medical and dental colleges in Madhya Pradesh would keep aside up to 50% of their seats to accommodate candidates successful in the state-conducted common entrance test.
The Bench said despite three constitution Benches of SC —one comprising 11 judges, another 5 judges and still another with 7 judges — dealing with the issue of regulating affairs of educational institutions — minority, aided and unaided and non-minority — there appeared to be still some grey areas that needed clarification.
While the 11-judge Bench in the T M A Pai case had said that greater autonomy has to be granted to unaided institutions compared to the aided ones, the 7-judge Bench in the P A Inamdar case had said it would be unfair to apply the same logic to aided and unaided colleges.
Referring to Inamdar case judgment, the Bench said it was said if the admission process adopted by an unaided private college did not conform to the triple test — fair, transparency and reasonable fee-structure — then the state would have an occasion to interfere in it. The Justice Katju-headed Bench said the 7-judge Bench did not specify the body which would determine whet-her the admission process of a private unaided college was at fault.
“It can’t be left to the unilateral decision of the state to say that a private institution has failed the triple test. This will give an unbridled power to the state to say that a private institution has failed the triple test,” it said. It said: “To strike a balance between the responsibility of the state as against the interest of the private unaided professional colleges, the court has to use its creativity.”
Senior advocate Abhishek Manu Singhvi stressed the need to allow Association of Private Dental and Medical Colleges to fill seats through entrance test conducted by the association. However, MP counsel, senior advocate Ravi Shanker Prasad, argued that the state had already conducted entrance test. Striking a balance, the court said as an interim measure for this academic year, private unaided colleges would leave out 50% of their seats to be filled by candidates in merit list drawn through entrance test conducted by the government.
Source:- The Times of India 28 May 2009 P.17 Delhi
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Cases pending in Supreme Court top 50,000

In a blow to the concept of speedy justice, the Supreme Court has for the first time in a decade run up a backlog of more than 50,000 cases. The dubious mark was crossed by the end of March 2009 when the number of pending cases stood at 50,163.
With computerization of the Supreme Court registry and use of information technology in docket management, pendency of cases in the 1990s was brought down from more than one lakh to a manageable 20,000. But the huge rush of litigants, despite an increased disposal rate, has proved more than a match for the judges, who hear more than 80 cases a day.
The pendency has steadily crept northwards since 2006, when it stood at 34,649. In January 2007, it had become 39,780 with pendency jumping by more than 5,000 cases. Justice K G Balakrishnan took over as the Chief Justice of India at this time and tried to put in place mechanisms to arrest the trend of spiralling pendency.
However, even as the SC stepped up the rate at which it disposed of cases, the apex court failed to reduce the pendency as it could not cope with the rising number of cases filed every year.
The dockets swelled and the pendency by January 2008 was within striking distance of the 50,000-mark, standing at 46,926. By January 2009, pendency rose to 49,819, before finally breaching the 50,000-mark in March.
A similar trend was seen at the level of high courts and trial courts. The 21 high courts, working with a total strength of just 635 judges against a sanctioned strength of 886, reported a pendency of 38.7 lakh cases as of January 1, 2009, against 37.4 lakh cases on January 1, 2008.
2.64cr cases pending before trial courts
The Supreme Court has for the first time in a decade run up a backlog of more than 50,000 cases. Trial courts, having a judge strength of 13,556 against a sanctioned strength of 16,685, were burdened with an addtional pendency of nearly 10 lakh cases by January 2009, when the pendency figure was 2.64 crore. It stood at 2.54 crore cases in January 2008. The CJI has been repeatedly requesting the state governments to increase the strength of trial court judges by an additional 10,000 to tackle the pendency, but most of them have brushed aside the only practical solution, citing a funds crunch.

Source:- The Times of India 28 May 2009 P.1 Delhi
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26 May, 2009

Court asks Ram Gopal Verma to approach tribunal on National Anthem Song Matter

Declines to entertain plea against Censor Board’s refusal to certify ‘Rann’
The Supreme Court on Monday declined to entertain a writ petition by film director Ram Gopal Verma, challenging the Censor Board’s refusal to grant certification for his film ‘Rann’ for allegedly distorting the national anthem, and asked him to approach the Film Certification Appellate Tribunal for relief.
A vacation Bench of Justices V.S. Sirpurkar and R.M. Lodha dismissed as withdrawn the petition and asked the tribunal to decide on the matter in a month. The Bench made it clear that Mr. Verma could approach the Supreme Court again, if he was not satisfied with the tribunal’s decision.
Justice Sirpurkar told senior counsel Arun Jaitley: “We have read it. It [the national anthem] has been distorted, and it gives a totally negative sense. It seems every line of the national anthem has been filmed wrong. Nobody has any right to tinker with the national anthem. You go to the tribunal.”
In his petition, Mr. Verma said: “This song is part of a promotional film, which was submitted for certification to the Board for release on May 6. The Central Board of Film Certification, through the impugned order of May 8, has denied certification.”
He said the petition raised important questions of law: whether the impugned order takes a narrow, constricted and perverse ground of alleged distortion of the national anthem in the petitioner’s promo/song, more so when flags of such political parties as the Indian National Congress, the Trinamool Congress and the Nationalist Congress Party are tricolour and can be said to be distortion of the national flag?; can a song be composed in a respectful manner with the words of the national song, ‘Vande Maa Taram’ or the national anthem?; can there be a flag with the same colours as the national flag, but having other symbols in place of the Ashoka Chakra at the centre?; and can a citizen be prohibited from using the national symbol/anthem/song for artistic expression in a respectful manner?
He sought the order quashed and a directive to grant certification for the film.
Source:- The Hindu Tuesday, May 26, 2009
http://www.hindu.com/2009/05/26/stories/2009052656241300.htm
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Delhi High Court orders Army to pay Rs. 10 lakh compensation to jawan’s widow

The widow had received contradictory information about the cause of her husband’s death

A second post-mortem on the body revealed that the jawan’s left kidney had been removed
The Delhi High Court on Monday awarded a compensation of Rs.10 lakh to the widow of an Indian Army soldier as damages for removal of his left kidney following his death under mysterious circumstances in Jammu and Kashmir in 2001.
The widow, Sapna Tyagi, had moved the High Court following receipt of contradictory information about the cause of death of her husband, Ajay Kumar, from 101 Engineer Regiment where he was posted as a sapper in Baramulla.
Initially the regiment informed Sapna Tyagi that Ajay Kumar had died in an encounter with terrorists. It later changed the version and intimated to her that he had committed suicide.
After conducting post-mortem, the regiment handed over the body to his family. The autopsy report said that Ajay Kumar had died due to “asphyxia”.
However, suspicious of the cause of death mentioned in the post-mortem report, Sapna Tyagi moved the District Magistrate at Meerut in Uttar Pradesh seeking a direction for conducting a fresh autopsy on the body of her husband alleging that he had been murdered. The Tyagis lived in Meerut.
The Medical Officer there conducted a second post-mortem on the body and found that Ajay Kumar’s left kidney had been removed. However, he also confirmed “asphyxia” as the cause of death. When the Court asked counsel for the Army to explain the removal of the kidney which was not mentioned in the first post-mortem report, he submitted that the organ was taken out for forensic tests to rule out presence of any poison in the body.
But a report of the forensic laboratory where the doctor had the viscera of the deceased for forensic tests said that only a piece of the kidney was sent to it for that purpose.
In fact, counsel for the Army failed to explain to the Court how the left kidney of the deceased was removed.
The Court dismissed his defence saying that only portions of the organs of the dead body were sliced off for forensic tests.
The Court directed the Army to pay the compensation to Sapna Tyagi within three months of the order.
Source:- The Hindu Tuesday, May 26, 2009
http://www.hindu.com/2009/05/26/stories/2009052653680400.htm
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SC to Maya: Take back 18,000 cops

Directs UP To Appoint All Recruited Constables Till Final Outcome Of Appeal
The Mayawati government, which had quashed the recruitment of 18,000 constables made during rival Mulayam Singh Yadav’s regime alleging a scam, was on Monday ordered by the Supreme Court to take them back in service.
The UP government had tried everything — moving the high court and then the Supreme Court — to stall the appointment of the large number of constables. It had rushed to the apex court against the May 20 order of Allahabad HC threatening to draw contempt proceedings against a top bureaucrat and the DGP of the state if they failed to appoint the constables by May 27.
A vacation bench comprising Justices Markandey Katju and Deepak Verma rejected outright advocate general Jyotindra Mishra’s plea for stay on the contempt proceedings and directed the state to immediately appoint the recruited constables.
“The state has no case for stay,” the Bench said. “Is it the case of the state that these constables are surplus? You need them. The state had sufficient time to take steps as per the HC order,” it said while brushing aside Mishra’s argument that in many cases the answer sheets of the candidates were found to have been written by the examiners.
While directing the state to appoint all the recruited constables, whose fate had been hanging in the balance for the last two years, the Bench said their appointment would be subject to the final outcome of the appeal filed by the Mayawati government in the Supreme Court.
The HC had quashed the Mayawati government’s decision to cancel the appointment of the 18,000 constables recruited during Mulayam Singh Yadav’s regime. The Mayawati government had alleged that there were widespread irregularities in the appointments. The high court had said that the state should separate the tainted candidates and only their appointment should be cancelled. When no step towards implementation of the HC order was taken, some candidates moved the HC seeking initiation of contempt proceedings against the principal secretary (home) and directorgeneral of police (DGP). The high court had issued notice to the alleged contemnors on their petition.
The high court had deadlined the Mayawati government to comply with its order by May 27 and warned that failure to do so would invite framing of contempt charges against the alleged contemnors.
Source:- The Times of India 26 May 2009 P.13 Delhi
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HOLIDAY ADVICE :Apex court to rescue of junior lawyers

After handing men some advice for a happy married life, a Supreme Court vacation bench headed by Justice Markandey Katju took up the task of improving the lot of junior lawyers who face a tough financial situation in the highly competitive legal profession.
Finding a large number of senior advocates present in the court and arguing cases, the bench comprising Justices Katju and Deepak Verma implored them to ‘‘leave the field for juniors at least during the vacation’’.
‘‘The vacation courts should be meant only for junior lawyers. This is the time they can make some money. They also have a house to run,’’ said the bench in a display of its soft corner for young lawyers who have a tough time — with few cases, little money, but a lot of work preparing cases for seniors who ultimately argue it in courts.
Senior advocates Abhishek Manu Singhvi and Mukul Rohtagi agreed with Justice Katju and said the Supreme Court should pass an administrative order that no designated senior advocate should appear before the vacation benches. Reluctant to pass an order to this effect, Justice Katju fell back on his persuasive skills and said, ‘‘All senior advocates should come to an understanding among themselves to leave the field during vacation for juniors.’’
What drew peals of laughter from all present and brought out wide grins from juniors was Justice Katju’s comment in Hindi, ‘‘Aap senior advocate log hamesha malai le jayenge to bechara junior kya saal bhar chach hi peeta rahega (If you seniors always take away the cream, what will the juniors be left with)?’’

Source:- The Times of India 26 May 2009 P.13 Delhi
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24 May, 2009

Washington woman first to die under assisted suicide law

Olympia: Linda Fleming was diagnosed with terminal cancer and feared her last days would be filled with pain and ever-stronger doses of medication that would erode her mind. The 66-year-old woman with late-stage pancreatic cancer wanted to be clear-headed at death, so she became the first person to kill herself under Washington state’s new assisted suicide law, known as “death with dignity.”
“I am a very spiritual person, and it was very important to me to be conscious, clearminded and alert at the time of my death,” Fleming said in a statement released Friday. “The powerful pain medications were making it difficult to maintain the state of mind I wanted to have at my death.”
With family members, her physician and her dog at her side, Fleming took a deadly dose of prescription barbiturates and died Thursday night at her home in Sequim, Wash.
Chris Carlson, who campaigned against the new law with the Coalition Against Assisted Suicide, called the death unfortunate. “Any premature death is a sad occasion and it diminishes us all,” he said.
Compassion & Choices of Washington, an advocacy group that aids people who seek to use the law, announced her death. Last November, Washington became the second state to have a voter-approved assisted suicide law. It is based on a law adopted by Oregon voters in 1997. Since then, about 400 people have used the Oregon law to end their lives.
In December, a district judge in Montana ruled that doctor-assisted suicides are legal in that state.
Source:- The Times of India 24 May 2009 P.19 Delhi
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22 May, 2009

RBI ruling to check card frauds

Issuers Need To Provide Extra Code To Complete Transaction
From August 1, you need not think twice before letting your credit card out of sight at a restaurant, petrol pump or any other merchant establishment. The details printed on your card — including the card number, expiry date and three-digit card security code (popularly known as the CVV) — will not be enough to make fraudulent online transactions.
A RBI directive has ensured that from August, credit and debit card-issuing banks must provide for additional authentication of information — over and above what is visible on the physical card. In other words, the cardholder must key in an extra security code or some other data to complete a online transaction.
This consumer-friendly instruction, issued by the RBI on February 18, also mandates a system of online alerts to the cardholder for all ‘card not present' transactions that exceed Rs 5,000. The circular adds that banks would be penalised for non-adherance to the directive under the Payment and Settlement Systems Act 2007.
In an email response to TOI, RBI though specifies, ‘‘Banks are free to decide on the technology they wish to use to fall in line with these instructions.'' On their part, banks have been beefing up their online security. Virtual cards, which have been around for a while, are a secure option offered by the likes of HDFC Bank, ICICI Bank and Kotak Mahindra Bank. HDFC Bank's Net-Safe, for one, creates a code that can be used for one-time transaction. ‘‘It is a limited period validity number,'' says Sanjeev Patel, EVP and head, direct banking channels, HDFC Bank.
Virtual cards create a code separate from your CVV number so you don't have to key it in on the merchant website. Any unused amount from the card is credited back to the credit or debit card account.
Banks also offer increased security via MasterCard's Securecode and Visa's Verified by Visa, which offer personalised passwords. T V Seshadri, vicepresident and country general manager, South Asia, MasterCard, says, ‘‘Much like the authentication process required for payment card use at ATMs, SecureCode requires cardholders to enter their personal code in an online window on their PC before a transaction can be processed. Even if someone knows their credit or debit card number, the purchase cannot be completed without their SecureCode at a participating merchant.''
But these initiatives can work only if the cardholder is prompted to enter the code by the merchant site. Says Seshadri, ‘‘The card-issuing bank, the retailer and the retailer's acquiring bank will all have to participate.”
Source:- The Times of India 22 May 2009 P. 21 Delhi
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SC stays surrender of PG medical seats

Chances of meritorious students getting a fresh crack at reputed government medical colleges brightened on Thursday with the Supreme Court staying the surrender of all-India quota PG medical seats to the states.
Petitioners pointed out that several states, who contribute to the All-India Quota PG seats’ pool, filled through an open entrance examination, deliberately delayed intimating the number of vacancies in government medical colleges to the Directorate General of Health Service and for years have been cornering them for those who had cleared the state test.
A vacation Bench comprising Justices Markandey Katju and Deepak Verma stayed the surrender of the all-India quota PG seats to the state governments till May 26. The surrender was to take place on Friday, as per the schedule, since DGHS has already conducted the second counselling. It is now likely that DGHS would have to conduct an extended second counselling to fill as many all-India quota PG seats.
There were over 3,000 PG seats under the 50% all-India quota open to competition sans reservation till the 2006-07 academic session. However, the apex court had last year introduced SC/ST quota in it. With this, the number of seats for general category, including OBCs, will stand reduced to around 2,300 and nearly 700 seats will go to SCs and STs.
On a 1985 order of the court, 25% post-graduation seats in medical colleges were culled out for the open all-India competition from the academic year 1987-88 solely on the basis of merit and sans any reservation for socially weaker sections. PG seats under the all-India quota was increased from 25% to 50% by the apex court in 2003.
Source:- The Times of India 22 May 2009 P. 13 Delhi
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RECRUITMENT SCAM :UP rushes to SC to save its babus from contempt in HC

The Mayawati government on Thursday rushed to the Supreme Court seeking a stay on the Allahabad HC’s decision to initiate contempt proceedings against its top bureaucrats and cops in connection with the constable recruitment scam.
The HC had quashed the Mayawati government’s decision to cancel the appointment of 18,000 constables recruited during Mulayam Singh Yadav’s regime. The Mayawati government had alleged that there were widespread irregularities in the appointments. The HC had said that the state should separate the tainted candidates and only their appointment should be cancelled.
When no step towards implementation of the HC order was taken, some candidates moved the HC seeking initiation of contempt proceedings against the principal secretary (home) and DGP. The HC had issued notice to the alleged contemnors on their petition.
To protect the bureaucrat and the top cop, the state moved a special leave petition (SLP) in the SC seeking stay of the contempt proceedings. SC issued notice on the SLP but did not grant stay. Taking into account the non-grant of stay, the HC gave a deadline to the Mayawati government to comply with its order by May 27 and warned that failure to do so would invite framing of contempt charges.
With hardly a week left, the state rushed to SC with an application seeking stay of the contempt proceedings. Additional advocate general Shail Kumar Dwivedi told a bench comprising Justices Katju and Deepak Verma that entire recruitment process was vitiated as examiners were biased.
“It is not possible to separate the tainted from the non-tainted in view of the largescale irregularities across all the 42 recruitment boards... Even if segregation is to be made, the result sought to be arrived at after separation of the tainted cannot be said to be fair in view of the fact that irregularities had taken place at all stages of recruitment,” the state said.
Source:- The Times of India 22 May 2009 P. 13 Delhi
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End of the road for SC monitoring panel?

With chief minister Sheila Dikshit mooting the idea of bringing MCD under government control, the civic agency has fortified its autonomy by convincing the Delhi High Court of the need to strengthen its nodal committee in charge of demolitions in the city.
The MCD has informed HC that in view of being flooded with complaints, the nodal steering committee in charge of monitoring demolition operations needs to be expanded by adding more engineers, law officers and draftsmen.
‘‘Right now if a complaint is received from an area, the committee depends on reports of engineers from that same locality for feedback. It needs to be made independent and should have inhouse experts who can verify complaints better,’’ said MCD counsel Ajay Arora.
HC, while agreeing in principle, has sought objections from the petitioners, Kalyan Sanstha and from the amicus curiae in the case, former court commissioner Rakesh Sharma. The petitioners have objected to this demand of MCD arguing the committee is a mere eyewash as illegal constructions are once again mushrooming in the capital.
In case HC gives its final green signal, it would mean a permanent end to court appointed monitoring panel that was temporarily disbanded last year to make way for MCD’s committee. The HC panel consisted of a monitoring committee and court commissioners who together supervised MCD’s demolition work in the capital.
In a related development, HC has also asked the central government to expedite its process of framing norms for constructions in unauthorised colonies in Delhi.
Source:- The Times of India 22 May 2009 P. 6 Delhi
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20 May, 2009

TVS can make, sell original Flame: High Court

Court Sets Aside Bajaj’s Charge Of Copying
Clearing the decks for TVS Motor to manufacture and market its 125 CC ‘Flame’ motorcycle, in its original form, the Madras High Court on Monday lifted an order of injunction which restrained the company from using internal combustion engine with three valves and two spark plugs. TVS now sells, Flame under a completely different technology as against the originally planned one.
Bajaj Auto Ltd had accused TVS Motor of copying its patented technology and moved the courts. In a petition, Bajaj claimed that though it had patent for an internal combustion engine with four stroke, two plugs and two valves configuration, TVS had infringed the rights as it had planned a new motorcycle with similar technology. On February 16, 2008, a single judge restrained TVS from using the technology on its new bike model.
TVS officials were tightlipped on the court ruling. “We can comment only after we get copies of the order,” a TVS spokesperson told TOI.
On Monday, setting aside the order, a division Bench comprising justice S J Mukhopadhaya and Justice F M Ibrahim Kalifulla said photographs disclosed a marked difference between three valve configuration of TVS and the two valve configuration of Bajaj vis-a-vis the positioning of the twin plugs in the engine.
Concurring with the TVS’ submission that its third valve is not merely a cosmetic change, the judges said improved internal combustion working on four stroke principle of Bajaj and the four stroke internal combustion engine with at least two inlet valve and one exhaust valve of TVS were distinct from each other and both were entitled to equal protection of the Patents Act. While Bajaj obtained patent for its engine, TVS said it possessed licence for the same technology from AVL of Austria. The judges said that since TVS was supported by valid patent as licensee no interim injunction should have been granted against it.
The revocation petition filed by TVS was based on formidable grounds such as existence of prior art and obviousness of the product, the judges said, adding that in such cases courts should not grant injunctions.
Source:- The Times of India 20 May 2008 P.26 Delhi
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Wife is always right, says Supreme Court

Husbands Advised To Never Question Their Authority
Husbands wanting to lead a happy married life can rely on some useful tips given by the Supreme Court, the most important being: “Do what the wife tells you and never question her authority.”
The words of wisdom came from two ‘Bhuktbhogi’ judges — Justices Markandey Katju and Deepak Verma — during the inconclusive hearing of a 17-year-old divorce litigation between a serving Lieutenant Colonel and his wife.
The vacation Bench comprising these two judges asked the counsel whether there was any scope of compromise between the two and both in unison gave different reasons to say that there was no possibility for a happy ending to their dispute.
The wife’s counsel said that the Rs 10 lakh offered by the husband for complete settlement of the dispute and divorce was too little as it was not easy to bring up a teenaged daughter. She was married in 1991 and was allegedly thrown out of the house in 1992 after which he had moved the court for divorce.
While the trial court dismissed his divorce plea, the HC had allowed judicial separation. But on her appeal against this order, a division Bench of the HC had granted divorce to him. Terming this order as erroneous, she had moved the apex court.
The husband had an altogether different story to tell. She had filed several criminal cases against him that included charges like — ‘he takes bath like a dog’ and ‘he commits sodomy’. The counsel said he had fought the cases for over 17 years and had been exonerated of all charges. “He has been ruined financially and professionally, but still wanted to settle by giving Rs 10 lakh to her for a divorce,” he added.
Justice Katju, while adjourning hearing on the case, decided that it was time for the husband to get a few tips from him about how to lead a happy married life.
“You should always agree with her. When you agree to what she says, you will always remain happy. If she tells you to look this way, do that. And if she tells you the next moment to look the other way, again do that,” Justice Katju said much to the amusement of the lawyers who were waiting their turn to argue their case before the vacation Bench.
And to convince them about the usefulness of his advice, Justice Katju said: “We are talking from experience (Hum sab bhuktbhogi hain).”
Source:- The Times of India 20 May 2008 P.18 Delhi
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19 May, 2009

‘Check outside bars to rein in drunk drivers’ : High Court

HC Directive To Traffic Cops To Curb Menace
Delhi High Court has asked for strict checking outside bars and pubs in the capital in order to prevent drunken driving.
WHAT COURT WANTS
  • Strict checking of customers at the bar/pub itself as they come out after drinks. HC say there's no point having random checking at intersections if we know the majority drive themselves after having drinks
  • Availability of pre-paid replacement drivers for customers who drive themselves. Drinks to be served only after the customer books a driver to drop him home
  • Cops say these are policy decisions that can't be implemented overnight unless backed by judicial orders. Point out replacement drivers can be dangerous for sloshed men and women unless properly verified
  • Excise department and traffic police reports say in Delhi, almost 90% people drive back on their own from pubs/ restaurants
  • HC was hearing a case of drunk driving, has appointed amicus curiae and sought responses from police. It has also sought response on presence of liquor vends on highways, from the excise department
After going through a report by the excise department and traffic police which said almost 90% of customers going to bars are at the wheel while returning home, Justice J R Midha on Monday asked Delhi Police to get cracking on drunk drivers.
‘‘Why don’t you check them at the bars itself, when they come out to drive? Take some decision, don’t play with lives. Such a rule will save the lives of these consumers and also those who become victims,’’ HC noted, giving four months to the police to say if it was a feasible course of action.
The court struck upon checks outside bars because, according to HC, it would yield better dividends than random checks at key intersections in the city. It also maintained that the concept of ‘‘replacement drivers’’ should be introduced in restaurants and hotels across the city, starting with 5-star hotels. ‘‘When your own report gives such a figure, it is the duty of the police to enforce checks. It is in larger public interest to introduce a condition that pubs/bars serving alcohol shall have replacement drivers and shall serve liquor to a customer (self driven) only after the guest pays to book a replacement driver,’’ it observed.
The police, however, argued that both replacement drivers and checking at pubs could not be implemented instantly as these were policy decisions. Appearing for the police, counsel Mukta Gupta said, ‘‘Unless backed by a judicial order, cops can’t be posted at each pub or bar. We are prosecuting drunk drivers and the accident rate has therefore come down.’’
The police also voiced apprehensions about replacement drivers, saying they would be responsible for dropping sloshed men and women home late at night, leaving them vulnerable.
But the amicus curiae in the case, Anup Bhambhani, pointed out these concerns can be taken care of by adopting precautions like the ones taken while offering pre-paid taxi or valet services in hotels. Bhambhani said when hotels can introduce security measures after 26/11 for better protection of their customers, they could do the same for safety of customers going home after drinks. ‘‘It is the responsibility of hotels that customers return home safely,’’ he added.
It was while dealing with an accidents claim case involving a drunk driver earlier that Justice Midha decided to widen the scope of his intervention by deputing two lawyers as amicus curiae and asked for a list of suggestions. The reports from the authorities came in response to these suggestions.
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RIGHT TO CHOOSE :‘At 18, girl can pick hubby’ : Parents Can’t Say No, Can Only Cut Ties : Supreme Court

If you are a girl and over the age of 18 years, this is for you. The Supreme Court on Monday outlined her freedom in choosing her life partner and warned parents not to use force to interfere with her decision.
“India is a free country and girls after attaining majority have the right to choose their life partner. They have the freedom to exercise their right to choose their partner,” said a vacation Bench comprising Justices Markandey Katju and Deepak Verma.
When the case relating to an inter-community marriage between 19-year-old Anjum and 24-year-old Khemraj was mentioned before the Bench for an early hearing, it said that the parental opposition to the girl’s choice could not be expressed in violent terms.
“They cannot confine her, torture her or use any kind of force on her if she was a major,” the Bench.
The couple, hailing from J&K, were married in Delhi on March 26 with the help of an NGO run by former chairperson of National Commission for Women Mohini Giri. But, learning about the elopement of his daughter, the girl’s father lodged a kidnapping case against Khemraj with the J&K police.
When it came looking for the boy to arrest him, the couple approached the SC and got a stay on his arrest. They have sought quashing of kidnapping charge.
Justice Katju, while expediting the hearing of the case, said: “If the parents of a boy or a girl do not approve of an inter-caste or inter-community marriage, the maximum they can do is to cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who opts for inter-caste or inter-religious marriage.”
Source:- The Times of India19 May 2009 P. 13 Delhi
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14 May, 2009

Transfer of employees even on shifting is to be based on the conditions of service

Contributed by Deepak Miglani
A transfer is a lateral move to a position in the same classified pay range or to a position with comparable duties and responsibilities. Transfer of employees from one place to another even when the establishment is shifted is to be based on the conditions of service between the employer and employees either in the appointment letter or the Standing Orders –otherwise it will be illegal. When the transfer has been made from one place to another and in view of settled law when there is no such specific contract of service also, the employer has no inherent right to transfer the employees from one place to another. Employer should insert transfer relating clause in contract of employment for avoidance of opposition of workers.

12 May, 2009

Uncertainty associated with the game could make the Indian Premier League’s (IPL) new SMS game 6UP an exercise in gambling

Contributed by Deepak Miglani
Game 6 UP offers a minimum prize of Rs10,000 for someone who can guess the sequence in which runs will be scored off the six balls of an over, couldn’t immediately be ascertained. Participants pay Rs5 for the SMS, the par for such contests, and some of this revenue goes to IPL through a revenue share agreement with telcos. The game is powered by iPlayUP, an Australian mobile business generation company.
This game is purely a betting game. In bet we do not have to do nothing, does not involve the skill and we depend on chance. In this game also does not involve the skill. Whether guessing involve skill or not depends on the circumstance in different situation . Some body say that it involve the viewer skill to prediction based upon weather condition, players capability to play ,sequence order and pitch condition etc. So Guessing the sequence in which runs will be scored is purely based on chance. This is purely a gamble of Rs 5 per sms for Rs 10000 which a gambler pay to telecompanies. IPL has some share in this Rs 5 through revenue sharing agreement with telecompanies. This game is a big online gambling.
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10 May, 2009

EMPLOYEES’ STAE INSURANCE ACT, 1948:SOME IMPORTANT PROVISIONS

  • Once the ESI Act is made applicable to an establishment, it will continue to apply even when the number of employee is reduced to one.
  • For applicability of ESI Act upon a factory or an establishment, there must be prescribed number ( 10 or 20) of eligible employees (drawing less than Rs. 10,000 per month).
  • A coverable employee is to be enrolled as a member of ESI on the first day of joining.
  • A Co-operative Society, other than a House Owners’ Society, is liable to be covered under the Act.
  • A shop, though not defined under the ESI Act, but has been given wider interpretation by covering even the establishment where services are rendered and is not confined to sales and purchases only.
  • A hotel, even though not factory under the Factories Act, is liable to be covered under the ESI Act.
  • Use of LPG, for preparation of sweet, will be treated as power for the applicability of ESI Act upon a shop or an establishment.
  • A partner is not an employee but a Managing Director , drawing less than the prescribed limit of salary, will be an employee and covered under the ESI Act.
  • A contractor may not be covered under ESI Act but his employees are liable to be covered.
  • Apprentices not engaged under the Apprentices Act or the Industrial Employment (Standing Orders) Act are employees to be covered under the ESI Act.
  • The wages for ESI contribution are not restricted to basic or DA but includes many other allowances like overtime, HRA.
  • The contribution period and the benefit period under the ESI Act are different from each other.
  • An employee being member of ESI can avail benefit even when he is away from his work-place.
  • A person working on commission basis will not be entitled for coverage under the ESI Act.
  • The employees working in construction activities are not liable to be covered but in case such employees work for construction/repair or maintenance of additional building or same building of a covered establishment, they will be covered.
  • When work for construction/repair/extension of a covered establishment is given on contract with material, 25% of the total cost will be taken as labour charges unless specific bifurcation is given.
  • There will be no justification in not depositing ESI contributions merely because the Code Number was not allotted.
  • In the case of any dispute or difference between the ESI authorities and the employer, the appropriate remedy is provided before the Employees’ Insurance Court and neither the Civil Court not the High Court will entertain.
  • An employer can not terminate/dismiss an employee during the period when he is availing sickness benefits but this condition will not be applicable for termination of a probationer or a fixed term employee.
  • Consumer Protection Act is also applicable to the member of ESI.
  • Depositing ESI contributions is the first liability of principal employer for the employees of the contractor.
  • ESI will be liable to pay compensation for a road accident if it takes place within one kilometre of the place of work.
  • An employer has to send accident report within twenty-four hours of the accident to the nearest ESI office.
  • Notice pay will not attract ESI contribution.

Source:- LLR May 2009 Issue.

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09 May, 2009

Dishonour of Cheque in India

Contributed by Deepak Miglani
A great hardship is caused to a person if a cheque issued in his favour is dishonoured due to the insufficiency of funds in the account of the drawer of the cheque. To discourage dishonour Cheque Bouncing is made punishable as offence under Negotiable Instrument Act. The drawer can be awarded two years of imprisonment and fine may extend to twice the amount of the cheque or both. These are the following essentials of Section 138 for making the dishonour of cheque a offence:-
  1. Cheque should have been issued for the discharge , in whole or part, of any debt or other liability.
  2. The cheque should have been presented within period of six months or within period of its validity, whichever is earlier.
    Note:- Cheque may be presented any number of times for collection with in its validity.
  3. The payee or the holder in due course should have issued a notice in writing to the drawer with in thirty days of the receipt of information by him from the bank regarding the return of cheque as unpaid.
  4. After the receipt of the said notice by the payee or the holder in due course, the drawer should have failed to pay the cheque amount with in fifteen days of the receipt of the said notice.
    Note:- Notice of dishonour is unnecessary when the party entitled a notice cannot after due search be found(Sec.98).
  5. On non-payment of the amount due on dishonoured cheque within fifteen days of the receipt of notice by the drawer, the complaint should have been filed with in one month from the date of expiry of grace time of fifteen days, before a Metropolitan Magistrate or not below the rank of a Judicial Magistrate of the First Class. The cognizance of a complaint may be taken by the court after the prescribed period, if the complaint satisfies the court that he had sufficient case for not making complaint within such period.
  6. The Offence under this act is compoundable.

Cheque may be presented again and again: A cheque may be presented any number of times during the period of validity. The cause of action, however, only once. The cause of action arises, after the issue of statutory notice and non-compliance with demand.
Dishonour with remarks “Account Closed”, “Refer to the drawer” or “Stop payment” instructions: Dishonour due to insufficiency of funds has to be interpreted liberally. Dishonour due to remarks “Account closed”, “Refer to the drawer” or “Stop payment” of the cheque may be deemed to be covered by the provision contained in Section 138.
Stopping payment of a cheque: Dishonestly stopping payment of the cheque, and then failing to pay the amount within 15 days after due notice from the payee amounts to an offence within the meaning of Section 138.

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07 May, 2009

Power company demands Rs 1.2K for posting RTI reply!

6 May 2009
AHMEDABAD: Getting electricity bills much higher than the usual monthly due to a technical glitch is sure to get your blood pressure up.
Imagine how you’d feel if you enforce accountability from the power company under Right to Information (RTI) Act and are told you now have to shell out Rs 1,200 for postage!
This is the situation Shakun Nawab faced. Nawab demanded to know from Madhya Gujarat Vij Company Ltd (MGVCL) the number of customers, who had been charged similarly.
But, the company told him other customers are ‘third parties’ under RTI and to get their consent before disclosure of information he would have to pay Rs 1,200 towards postage charges. An indignant Nawab took the issue to Gujarat Information Commission (GIC). It held that asking an applicant to pay cost of correspondence to third parties is not only inconsistent, but contrary to RTI provisions.
However, it agreed with MGVCL’s stand that other customers have to be treated as third parties and their consent is required before releasing such information. GIC noted that being a major public utility, MGVCL needs to address issues such as excess billing and adjustments more effectively. Its customers shouldn't have to knock doors of RTI.
Nawab sought names and addresses of its customers, who were subjected to excess billing in September 2006, number of units overcharged, amount recovered and whether the excess amount had been refunded.
MGVCL replied, as a project of moving customers from two-monthly bills to monthly was underway, 100 customers were overcharged.
However, satisfactory remedial action was taken, it said. To this, Nawab replied, this was not true as he was a victim too. And, his grievances hadn't been redressed so far.
MGVCL then said, its outsourcing agency issued a bill for 124 units during August 2006, but due to technical problems, the data was missed or deleted. This had resulted in the excess billing.
GIC held that while explanations had been given to Nawab by MGVCL, calculations of how excess billing in his case was settled should be intimated to him for his satisfaction.
Source:- http://timesofindia.indiatimes.com/Ahmedabad/Power-company-demands-Rs-12K-for-posting-RTI-reply/articleshow/4488985.cms

HC stays public-pvt engg college plan

6 May 2009
The Madras high court has stayed a proposal by the Anna University-Coimbatore to permit individuals and trusts to start engineering colleges under private-public partnership (PPP) scheme without the AICTE approval.
Granting interim stay on the establishment of such university constituent' institutions for a period of eight weeks, a vacation bench comprising Justice P Jyothimani and Justice T S Sivagnanam issued notices to the AICTE, the Anna University-Coimbatore and two others, including the Bangalore-based International School of Business and Research.
In his petition, C Thangavel of Erode contended that as per the controversial PPP scheme envisaged by the university, no AICTE approval as mandated under Section 10 of the AICTE Act was needed to start an engineering college, which also did not require any affiliation from the university.
The petitioner said the scheme was vitiated by lack of bonafide. Though the university syndicate did not give a clear-cut go-ahead for the proposal on February 18, efforts were being made to start the college from the coming academic year and commence admission of students without the mandatory AICTE nod for infrastructural facilities, the petition said.
Petitioner said the university erroneously presumes the proposed institutions as university colleges and considers that they do not need any approval from the AICTE. Describing this as "fallacious," the petitioner said the university was attempting to permit a private body to start a college as a franchise of the university and not merely opening a department of the university to impart technical education.
Besides seeking a stay on the February 18 resolution of the syndicate, the petitioner wanted the court to quash the proposal to establish university constituent colleges' under the PPP scheme pursuant to that resolution
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Take action against doctors persisting with strike: HC

6 May 2009
Bangalore : A division Bench of the high court on Tuesday asked the government to take action against junior doctors persisting with the strike. The Bench also asked the Junior Doctors' Association to file an affidavit by Thursday, listing out deficiencies in state-run medical colleges and hospitals.
"This court has not prevented doctors from resuming duty or the authorities from taking action to bring them back on duty. The court wanted authorities to take action... Those who cannot perform cannot sleep either. The recent election trend is an indicator to this. The strike is unpardonable," the Bench said.
Additional advocate general Ashok Haranahalli told the court that show-cause notices have been issued to those who went on strike and further action will be taken after getting their reply. "The state is spending Rs 20 lakh on undergraduates and Rs 50 lakh on PG students, apart from providing accommodation," a statement on behalf of the government said.
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Nominee is not sole heir of property: HC

A nominee of a property in a housing society does not automatically become the absolute owner of the property after the death of the original owner, the Bombay High Court has ruled in an important order.
Delivering the verdict in a legal battle that has dragged on for over 29 years, Justice A P Deshpande said it would be the personal law of an individual that would determine the successor to the property and not the nomination under the Cooperative Societies Act.
"The Maharashtra Cooperative Societies Act (MCSA) does not provide for a special rule of succession altering the rule of succession laid down under the personal law,'' the judge said, citing two earlier judgments. The court held that a nominee did not become the "absolute owner'' and was empowered only to hold the "property in trust for the real owners, that too for the purpose of dealings with the society''. A nominee has to give way to the legal heirs.
The court's judgment came in a dispute over a 5,610-sq-ft plot at the Nav Rajasthan Co-Operative Housing Society in Pune bought by Shivram Sattur, who had named his wife Tarabai as a nominee.
Tarabai tried to sell the property after his death, but her four children sued her. Two subordinate courts upheld the sale agreement saying Tarabai had become the sole owner of the property as a result of the nomination.
The HC, however, did not agree and said that her children also had a right over the plot as they were the legal heirs. The Hindu law says that on the death of a man, in case there is no will, the property is equally shared between the wife and the children. Muslims are governed by their personal laws.
Under the MCSA, on the death of a member, the society can transfer the interest to a nominee or an heir or a legal representative. Such a nominee does not become the only owner, the HC said. The nominee represents the legal heirs of the deceased member while dealing with the cooperative society and is only empowered to act on behalf of the real owners. This is a temporary arrangement between the death of the member and till the court decides the legal heir who is entitled to the property or estate.
The HC judgment has been stayed for eight weeks on a request from the developer who bought the property.
NOMINATION FACTS
- A society member can make a nomination, which can be revoked at any time
- On the death of a member, the society transfers the shares to the nominee or the heir or legal representative
- In case no nominee is mentioned, the society puts out a public notice inviting claims
- The nominee is in charge of the property only till the court decides who is entitled to the property as per the succession laws
Source:- 6 May 2009

06 May, 2009

TAGGED FOR SAFETY :-SC gives 3 months for smart plates

High-Security Number Plates Can Track Down Stolen Vehicles Through Satellite
Supreme Court on Tuesday set a three-month deadline for the Centre and the state governments to implement high-security registration plates (HSRPs), removing all ambiguity about the mandatory nature of its earlier order on the issue.
The SC had on May 8, 2008, given governments six months to implement the HSRPs after making modifications in the scheme drafted by the Centre. However, most of the states, citing doubts about whether the SC order was mandatory or not, have not implemented it. A Bench comprising Justices Arijit Pasayat and A K Ganguly dispelled the doubts outlined by advocate Wasim Qadri, who appeared for the Centre and the Delhi government. It said the states could not sidestep an important public interest measure that was directed to be implemented by the apex court.
The development means that the state governments will soon be getting after the motor vehicle owners to switch to the HSRPs in order to carry out the order.
The court had, in its earlier judgment, dismissed challenges to the scheme holding it to be in public interest. The HSRP can track down stolen vehicles through satellite monitoring since it is fitted with a security chip, thus preventing the misuse of such vehicles in crimes.
‘‘Use of stolen vehicles in crimes, especially terrorism related offences, are increasing steadily and this can be controlled to a large extent by implementation of the HSRP,’’ the court had said earlier. When most of the states did not implement the court’s year-old order, petitioner Maninderjit Singh Bitta moved an application seeking a directive to the governments to take urgent steps. Bitta said that it was a matter of concern that except for a few states none had implemented the high-security registration plates.
Source:- The Times of India 6 May 2009 Page 13 Delhi
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HC stay on Delhi University law faculty dean sacking

The Delhi High Court on Tuesday granted relief to dean of Delhi University’s Law Faculty by staying his removal by the varsity.
Justice V K Shali stayed the order of the university’s executive council (EC) that had removed professor S N Singh from his position. While staying the removal, HC also issued notice to the university, seeking its response by May 25, the next date of hearing. Singh had approached HC against his removal and alleged that it was a malafide decision by the varsity. Through his lawyer, the dean argued EC took its decision on certain unconfirmed complaints made against him. He alleged that he wasn’t served any notice to respond to the complaints and even his contentions were not heard. Urging HC to step in, Singh said he was being targeted for his principled stand.
The EC of DU removed Singh from the position of dean in its meeting on April 20. The council members said that the decision to debar Singh from any administrative work in the Campus Law Centre, Law Centre I and Law Centre II was taken after an inquiry report.
An EC member said, ‘‘He was disrobed of his deanship because of administrative lapses. There were many complaints against him.” There were also allegations against Singh that he had forwarded the thesis of a research scholar without the signature of the supervisor.
Source:- The Times of India 6 May 2009 Page 6 Delhi
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RECESSION PROOF:Let lawyers prevail

Diljeet Titus*

From settling company cases to labour disputes and family cases to consumer matters — law professionals seem to be the busiest. Changing economic and social scenario has opened new avenues for them
At present, though the slowdown is looming large over the Indian economy, threatening to stunt the growth of various industries and sectors, legal profession continues to grow. In fact, today, there is momentous workload on the lawyers as there has been a sudden increase in joint venture terminations, closure of wholly owned subsidiaries, branch offices and liaison offices, winding up of companies, filing for bankruptcy, employee downsizing, etc. for which legal assistance is required at each stage. The companies are also regularly taking lawyers’ guidance on restructuring of credit facilities, debt refinancing and restructuring, etc. to minimise the impact of the slowdown.
Further, several companies facing demand-slowdown are trying to get rid of their surplus employees. Lawyers are these days also busy providing opinion on procedure and consequences of retrenchment, company’s liabilities with respect to laid-off employees, calculating compensation packages, representing companies and individuals in labour disputes and so on and so forth.
The credit crunch has also caused regular defaults in payment of loans, dishonoring of cheques, breach of contracts, resulting into a sudden increase in civil as well as criminal litigation.
Additionally, in order to save legal costs, companies and people are now approaching the lawyers for out of court settlement of their legal disputes. Whether things are going well or bad in the economy, there always seems to be plenty of legal work to go around.
Career options
Over the last decade the popular perception of the law degree has changed dramatically. Law has become one of the most lucrative and versatile career options all over the world with lawyers becoming indispensable in the society. A law aspirant today has multifold career opportunities encompassing several emerging and challenging areas to consider while choosing his career options such as:
Private practice/ law firms
The conventional career path for a lawyer is to “go into practice” or join the chambers of a senior lawyer as his junior. The traditional image of a lawyer is based on this career option. Regarded by many as the true calling of a lawyer, this option involves representing and advancing his client’s case through oral argument or written documents such as motions and briefs.
A law graduate opting for litigation has the choice to start his career independently, joining a senior lawyer or may join the litigation department of a law firm with scope for specialisation in criminal law, matrimonial law and so on.
Legal consultants
Legal consultancy is growing as a bright career option. As modern life is becoming more and more complex there are increasing number of corporate, labour, property and family disputes, which can be resolved through out of court arbitration but with proper guidance of a legal consultant. Even before going to a court, the matters like adoption, succession, divorce, etc. need help of experienced legal consultant.
Keeping abreast with the growing need of the legal consultants, many private law firms and consultancy houses are recruiting legal consultants specialising in fields like tax, intellectual property, corporate, matrimonial, etc. Besides, many legal consultants are also opting for self-employment by starting their own legal consultancy firms.
Transaction lawyers
Transaction lawyers are lawyers that specialises in the area of business law and have expertise in drafting, execution, and administration of business documents such as deeds for real estate, employment contracts, merger documents, etc. In short, any type of transaction or series of transactions that affect the ability of the entity to function within the parameters set by laws would fall under the ambit of a transaction lawyer’s work.
With the advent of globalisation and trans-border corporate dealings, the demand for transaction lawyers have increased multiple fold and has created a rewarding career option for law graduates . A large number of companies and law firms are employing transaction lawyers to review business transactions like mergers, acquisitions, takeover, hiving off that the company/client may choose to consider.
Legal process outsourcing (LPO)
India, with its large pool of English proficient lawyers trained in common law, is the favorite destination for the English and American corporations and law firms for outsourcing their large volumes of legal work. Legal outsourcing has opened an all-together new career option for a law graduate to explore and offers significant remuneration.
The array of work of a law graduate in a LPO would range from high-end legal research and drafting briefs, memorandums and commercial contracts to litigation support work like evidence related work and first-level document review.
There is also immense scope for fresh law graduated to work in public and private sector companies as:
In-house lawyers/law officers
A law graduate can also opt to work with the in-house legal department of a company such as GE Capital, ICICI Bank, ITC, IBM, Infosys, Satyam, Wipro, Dr Reddy’s, Biocon, Pricewaterhouse Coopers, KPMG, etc. In-house lawyers play a critical role in the functioning of a company and are responsible for drafting, vetting, negotiating legal documents for the company, ensuring and monitoring compliance with laws and handling legal disputes of a company.
Arbitrators/mediators
Alternate dispute resolution is rapidly developing at national and international level, offering simpler methods of resolving disputes. As a result thereof, there has been a significant growth in the demand of the arbitrator and mediators.
A law graduate can opt to be an arbitrator or a mediator and will be responsible for out of court settlement of business discord, contractual disputes, industrial disputes, etc.
Judiciary
A law graduate has the option to join judicial services and become a Judicial Officer or Judge. Recruitment to the State Judicial Services is made through competitive examinations conducted by the State Public Service Commissions. Successful candidates are appointed as magistrate and munsif. While magistrate presides over criminal court, munsif delivers judgment on civil cases. Promotion may take a person higher up to Sub-Judge, District and Sessions Courts Judge and further to appointments in high courts and the Supreme Court.
The other posts filled through the above examinations are those of Public Prosecutor, Attorney General, Advocate General, Notary and Oath Commissioner.
Government sector
Law graduates may also find job opportunities under the Government of India as Assistant (Legal), Superintendent (Legal), Assistant Legal Advisor, Deputy Advisor, Additional Legal Advisor, Joint Secretary and Legal Advisor and Central government advocates in Bombay, Delhi and Calcutta.
Further, periodic civil service examinations (judicial) are conducted in all the states to recruit legal professionals in state police/revenue/judicial department.
Positions of Legal Secretaries to Assemblies, Legal Assistants in Railway, Staff in the Registrar of Companies, Legal Assistants/Law Officers and Legal Advisors in banking institutions, Presidency Magistrates, Law Inspector, Assistant Government Advocate, Judicial Members of Income Tax, Sales Tax and Excises departments, government advocates are available to law graduates. Also, there is an option to join Labour Officers, Assistant Deputy Labour Commissioners and Labour Commissioners in labour courts.
Law graduates can also work in the legal branch of defense departments such as the Indian Army, Navy and Air Force. They are responsible for conducting courts of enquiry and court martial of offending service personnel governed by the particular legislation acts.
Academic institutions
Pursuing teaching as a career is also a very rewarding option for a law graduate. Those with a good aptitude and taste for teaching can go for LLM and take up job in any university or institute offering law courses to students.
Publishing of journals, magazines and legal books is also an interesting opening for the versatile law graduates.
Media
A law graduate who has an inclination towards journalism and flair for writing may also become a legal correspondent with a newspaper or a news channel.
Remuneration
The salary of a fresh law graduate varies according to the career option that he chooses and the area of specialisation he does. A fresh graduate can normally fetch anywhere from Rs 20, 000 to Rs 60, 000 per month. There are also some corporates that are offering as high as Rs. 13 lakh as initial salary.
The right career choice of a law aspirant from the multiple options mentioned above combined with suitable aptitude can lead to a successful legal career.
*The writer is senior partner in Titus & Co. Advocates
Source:- The Tribune 6 May 2009 Job and Careers http://www.tribuneindia.com/2009/20090506/jobs.htm#7
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04 May, 2009

Wife's suspicion about hubby's affair is not cruelty, says court

Interpreting cruelty in divorce cases, the Bombay high court has delivered a significant ruling that if a woman, who has been asked to sleep in a separate room by her husband, suspects about him having an extramarital affair and inquires about the same, it cannot be termed as mental cruelty.
"...When a wife contends that the husband had abandoned physical relationship, it was natural for her to inquire whether he had any other woman in life. We are therefore inclined to accept that the inquiry made by the wife would not amount to mental cruelty,'' Justice B H Marlapalle and Justice S J Vajifdar observed recently.
The court was hearing an appeal filed by Suyog Dahiwadkar, a 35-year-old Pune-based jeweller, challenging an order passed by a family court rejecting his divorce petition on the grounds of cruelty.
The couple had an arranged marriage in December 1997. The husband had sought divorce in July 2001, after the wife left the matrimonial home in April 2001, following a quarrel.
In April 2004, the family court rejected Suyog's divorce petition which alleged that respondent (wife) Mohini, 33, did not tell her correct age at the time of wedding.
"She was born in 1969, but we were told she is 1970-born,'' the petitioner alleged.
The petitioner claimed his wife had also not given her horoscope before the wedding and that she was into black magic.
The divorce was sought on grounds of cruelty under Section 13(i) (ia) of the Hindu Marriage Act. "My wife has a quarrelsome nature. She used to misbehave with my family members. She had ill motives against my elder brother and she had also inquired with my cousin, whether I was carrying on with another woman,'' his petition stated.
The wife, on the other hand, had replied that her husband was an alcoholic and used to beat her mercilessly under the influence of liquor.
"On January 31, 2001, my husband came home late night and beat me up mercilessly under the influence of liquor. On March 23, 2001, I was suddenly told by him not to sleep with him in our bedroom. I was told to sleep separately in the hall,'' she told the court.
As the wife had shown willingness to go back to her husband, the high court refused to accept Suyog's argument that their marriage has been irretrievably broken.
The court also enhanced the maintenance granted to his wife from Rs 3,000 to Rs 10,000 a month, considering that Suyog was into a 145-year-old family business earning jointly with other members an annual income of Rs 40 lakh to Rs 50 lakh.
4 May 2009 The Times of India MUMBAI
Source:-http://timesofindia.indiatimes.com/Mumbai/Wifes-suspicion-about-hubbys-affair-is-not-cruelty-says-court/articleshow/4479947.cms
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01 May, 2009

Merely by registration, a trade union does not become an Authority under Article 12 of Constitution of India

Contributed by Deepak Miglani

Once a trade union is registered under Trade Unions Act,1926 , it becomes a body corporate under section 13 of the said Act by the name under which it is registered and thereafter it has a perpetual succession and common seal, and has the power to acquire and hold both movable and immovable properties and to contract and sue or sued in the said name. But By registration of a trade union under the Trade Unions Act, it does not become an Authority under Article12 of the Constitution of India and continues to remain just a private body hence all disputes relating to election of such a private body cannot be canvassed or challenged in a writ petition. The said Act does not make any provision for recognition of such a union. Article 12 of the Constitution of the India define the term ‘State’ as used in different Articles of Part III of the Constitution. It says that unless the context otherwise requires the term ‘State’ includes the following:-
  1. The Government and Parliament of India, i.e., Executive and Legislature of the Union.
  2. The Government and the Legislature of each State , i.e. Executive and Legislature of States.
  3. All local or other authorities within the territory of India.
  4. All local and other authorities under the control of the Government of India.

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