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Wednesday, November 28, 2012

STUDENTS HAVE THE RIGHT TO EXAMINE THE ANSWER SHEET...

IN THE SUPREME COURT OF INDIA

CIVIL APPELALTE JURISDICTION

CIVIL APPEAL NO.6454 OF 2011

[Arising out of SLP [C] No.7526/2009]

Central Board of Secondary Education & Anr. ... Appellants Vs. Aditya Bandopadhyay & Ors. ... Respondents With

 J U D G M E N T

R.V.RAVEENDRAN, J.


...............STUDENTS HAVE THE RIGHT TO EXAMINE THE ANSWER SHEET...

A NEW LAW WHICH AIMS at delivering all public services to citizens in the electronic mode..

ELECTRONIC SERVICE DELIVERY BILL 2011

The Electronic Service Delivery Bill, 2011, which aims at delivering all public services to citizens in the electronic mode, is a welcome piece of legislation. By eliminating paperwork on a massive scale, the new measure can cut the red tape and corruption that notoriously plague governance in the country. 

Thursday, November 22, 2012

Short Assessment bill by KSEB- Commercial tariff and other tarrif

The short assessment bill issued by the KSEB against an organisation conducting music classes is stayed by the Honourable Consumer Disputes Redressal Fourm, Ernakulam Bench.
The music institution was included in 6B tariff applicable to social organisations. But without prior notice or change in circumstances, the KSEB changed the tariff to 7A.
The reason by KSEB that the music firm, takes fee from the students will put them under the term of self financing education institution cannot be legal as per the provisions of law, that is the contention of the music firm in the case filed before the CDRF.

Tuesday, November 20, 2012

IMPORTANT OFFENCES – INFORMATION TECHNOLOGY ACT- TO BE CAUTIOUS WHILE DEALING WITH SOCIAL NETWORK SITES.


IMPORTANT OFFENCES – INFORMATION TECHNOLOGY ACT-
TO BE CAUTIOUS WHILE DEALING WITH SOCIAL NETWORK SITES.

XI. OFFENCES
XI
65
Tampering with Computer Source Documents
Whoever knowingly or intentionally conceals, destroys or alters or intentionally or knowingly causes another to conceal, destroy or alter any computer source code used for a computer, computer programme, computer system or computer network, when the computer source code is required to be kept or maintained by law for the time being in force, shall be punishable with imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with both.
Explanation -
For the purposes of this section, "Computer Source Code" means the listing of programmes, Computer Commands, Design and layout and programme analysis of computer resource in any form.


66


Computer Related Offences (Substituted vide ITAA 2008)
If any person, dishonestly, or fraudulently, does any act referred to in section 43, he shall be punishable with imprisonment for a term which may extend to two three years or with fine which may extend to five lakh rupees or with both.
Explanation: For the purpose of this section,-
a) the word "dishonestly" shall have the meaning assigned to it in section 24 of the Indian Penal Code;
b) the word "fraudulently" shall have the meaning assigned to it in section 25 of the Indian Penal Code.
66 A

Punishment for sending offensive messages through communication service, etc.( Introduced vide ITAA 2008)




Any person who sends, by means of a computer resource or a communication device,-
a) any  information that is grossly offensive or has menacing character; or
b) any  information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device,
c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages (Inserted vide ITAA 2008)
shall be punishable with imprisonment for a term which may extend to two three years and with fine.
Explanation: For the purposes of this section, terms "Electronic mail" and "Electronic Mail Message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.


66 B

Punishment for dishonestly receiving stolen computer resource or communication device (Inserted Vide ITA 2008)




Whoever dishonestly receives or retains any stolen computer resource or communication device knowing or having reason to believe the same to be stolen computer resource or communication device, shall be punished with imprisonment of either description for a term which may extend to three years or with fine which may extend to rupees one lakh or with both.


66C

Punishment for identity theft. (Inserted Vide ITA 2008)




Whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh.


66D

Punishment for cheating by personation by using computer resource (Inserted Vide ITA 2008)




Whoever, by means of any communication device or computer resource cheats by personation, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to one lakh rupees.


66E.

Punishment for violation of privacy. (Inserted Vide ITA 2008)




  Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with  imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both
Explanation.- For the purposes of this section--
(a) “transmit” means to electronically send a visual image with the intent that it be viewed by a person or persons;
(b) “capture”, with respect to an image, means to videotape, photograph, film or record by any means;
(c) “private area” means the naked or undergarment clad genitals, pubic area, buttocks or female breast;
(d) “publishes” means reproduction in the printed or electronic form and making it available for public;
(e) “under circumstances violating privacy” means circumstances in which a person can have a reasonable expectation that--
(i)  he or she could disrobe in privacy, without being concerned that an image of his private area was being captured; or
(ii) any part of his or her private area would not be visible to the public, regardless of whether that person is in a public or private place.


66F.

Punishment for cyber terrorism




 (1) Whoever,-
(A) with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people by –
(i) denying or cause the denial of access to any person authorized to access computer resource; or
(ii) attempting to penetrate or access a computer resource without authorisation or exceeding authorized access; or
(iii) introducing or causing to introduce any Computer Contaminant.
and by means of such conduct causes or is likely to cause death or injuries to   persons or damage to or destruction of property or disrupts or knowing that it is likely  to cause damage or disruption of supplies or services essential to the life of the community or adversely affect the critical information infrastructure specified under section 70, or
(B) knowingly or intentionally penetrates or accesses a computer resource without authorisation or exceeding authorized access, and by means of such conduct obtains access to information, data or computer database that is restricted for reasons of  the security of the State or foreign relations; or any restricted information, data or computer database, with reasons to believe that such information, data or computer database so obtained may be used to cause or likely to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, or to the advantage of any foreign nation, group of individuals or otherwise,
 commits the offence of cyber terrorism. 
(2) Whoever commits or conspires to commit cyber terrorism shall be punishable with imprisonment which may extend to imprisonment for life’.
67
Punishment for publishing or transmitting obscene material in electronic form (Amended vide ITAA 2008)
Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if  its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to two  three years and with fine which may extend to five lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.


67 A


Punishment for publishing or transmitting of material containing sexually explicit act,etc. in electronic form (Inserted vide ITAA 2008)




Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct  shall be punished on first conviction  with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh  rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.




Exception: This section and section 67 does not extend to any book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form-
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science,literature,art,or learning or other objects of general concern; or
(ii) which is kept or used  bona fide  for religious purposes.


67 B

Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form.




Whoever,-
(a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct or
(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner or
(c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource or
(d) facilitates abusing children online or
(e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children,
shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with a fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees:
Provided that the provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form-
(i) The publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern; or
(ii) which is kept or used for bonafide heritage or religious purposes
Explanation: For the purposes of this section, "children" means a person who has not completed the age of 18 years.


Thursday, November 15, 2012

No tax deduction on reimbursement of hospital bills if the hospital is approved under section 17(2) of Income Tax Act.


No tax deduction on reimbursement of hospital bills
if the hospital is approved under section 17(2) of  Income Tax Act.

APPROVAL UNDER PROVISO TO SUB-CLAUSE (ii) (b) OF SECTION 17 (2)(vi)
OF THE INCOME TAX ACT, 1961 READ WITH RULES 3A(1) & 3a(2) OF INCOME TAX RULES, 1962

[Exemption of medical benefits from perquisite value in respect of medical treatment of prescribed diseases or ailments in hospitals approved by the Chief Commissioner.

3A. (1) [In granting approval to any hospital other than a hospital for Indian system of medicine and homoeopathic treatment for the purposes of sub-clause (b) of clause (ii) of the proviso to sub-clause (vi) of clause (2) of section 17], the Chief Commissioner shall satisfy himself that the hospital is registered with the local authority and fulfils the following requirements, namely :
           (i)  The building used for the hospital complies with the municipal bye-laws in force.
          (ii)  The rooms are well ventilated, lighted and are kept in clean and hygienic conditions.
         (iii)  At least ten iron spring beds are provided for patients.
         (iv)  At least one properly equipped operation theatre is provided, with minimum floor space of 180 square feet and with a separate sterilisation room.
          (v)  At least one labour room is provided, with minimum floor space of 180 square feet, in case the hospital provides medical service for maternity cases.
         (vi)  Aseptic conditions are maintained in the operation theatre and the labour room.
        (vii)  A duty room is provided for the nursing staff on duty.
       (viii)  Adequate space for storage of medicines, food articles, equipments, etc., is provided.
         (ix)  The water used in the hospital or nursing home is fit for drinking.
          (x)  Adequate arrangements are made for isolating septic and infectious patients.
         (xi)  The hospital is provided with and maintains :
      (a)  high pressure sterilizer and instrument sterilizer;
      (b)  oxygen cylinders and necessary attachments for giving oxygen;
      (c)  adequate surgical equipments, instruments and apparatus including intravenous apparatus;
      (d)  a pathological laboratory for testing of blood, urine and stool;
      (e)  electro-cardiogram monitoring system;
      (f)  stand-by generator for use in case of power failure.
        (xii)  There is at least one qualified doctor available on duty round the clock for every twenty beds or fraction thereof.
       (xiii)  In hospitals providing intensive care unit facilities, there are at least two qualified doctors available on duty round the clock exclusively for such intensive care unit.
       (xiv)  One nurse is on duty round the clock for every five beds or a fraction thereof.
        (xv)  In hospitals providing intensive care unit facilities, there are at least four nurses provided exclusively for every four beds or fraction thereof for such intensive care unit.
       (xvi)  The hospital maintains record of health of every patient containing information about the patients name, address, occupation, sex, age, date of admission, date of discharge, diagnosis of disease and treatment undertaken.

(2) For the purpose of sub-clause (b) of clause (ii) of the proviso to 81[sub-clause (vi) of] clause (2) of section 17, the prescribed diseases or ailments shall be the following, namely :
          (a)  cancer;
          (b)  tuberculosis;
          (c)  acquired immunity deficiency syndrome;
          (d)  disease or ailment of the heart, blood, lymph glands, bone marrow, respiratory system, central nervous system, urinary system, liver, gall bladder, digestive system, endocrine glands or the skin, requiring surgical operation;
          (e)  ailment or disease of the eye, ear, nose or throat, requiring surgical operation;
          (f)  fracture in any part of the skeletal system or dislocation of vertebrae requiring surgical operation or orthopaedic treatment;
          (g)  gynaecological or obstetric ailment or disease requiring surgical operation, caesarean operation or laperoscopic intervention;
          (h)  ailment or disease of the organs mentioned at (d), requiring medical treatment in a hospital for at least three continuous days;
           (i)  gynaecological or obstetric ailment or disease requiring medical treatment in a hospital for at least three continuous days;
          (j)  burn injuries requiring medical treatment in a hospital for at least three continuous days;
          (k)  mental disorder - neurotic or psychotic - requiring medical treatment in a hospital for at least three continuous days;
           (l)  drug addiction requiring medical treatment in a hospital for at least seven continuous days;
         (m)  anaphylectic shocks including insulin shocks, drug reactions and other allergic manifestations requiring medical treatment in a hospital for at least three continuous days.

Thursday, November 8, 2012

VISHAKHA CASE II - SUPREME COURT ISSUED MORE GUIDELINES TO CURB SEXUAL HARASSMENT AGAINST WOMEN IN WORKPLACES.



SEXUAL HARASSMENT AGAINST WOMEN IN WORKPLACES - SC AGAIN ISSUED GUIDELINES......


VISHAKHA CASE II - SUPREME COURT ISSUED MORE GUIDELINES
TO CURB SEXUAL HARASSMENT AGAINST WOMEN IN WORKPLACES.

R.M. Lodha, Anil R. Dave and Ranjan Gogoi, JJ.


WRIT PETITION (CRIMINAL) NOS . 173-177 OF 1999
Medha Kotwal Lele and Others …… Petitioners
Vs.
Union of India and Others ……Respondents
WITH
T.C . (C) NO . 21 OF 2001
CIVIL APPEAL NO . 5009 OF 2006
CIVIL APPEAL NO . 5010 OF 2006

JUDGMENT

R.M . LODHA, J .

The Vishaka, Vishaka and Others v. State of Rajasthan and Others; [(1997) 6 SCC 241] judgment came on 13.8.1997. Yet,15 years after the guidelines were laid down by this Court for the prevention and redressal of sexual harassment and their due compliance under Article 141 of the Constitution of India until such time appropriate legislation was enacted by the Parliament, many women still struggle to have their most basic rights protected at workplaces. The statutory law is not in place. The Protection of Women Against Sexual Harassment at Work Place Bill, 2010 is still pending in Parliament though Lok Sabha is said to have passed that Bill in the first week of September, 2012. The belief of the Constitution framers in fairness and justice for women is yet to be fully achieved at the workplaces in the country.
2. This group of four matters – in the nature of public interest litigation – raises principally the grievance that women continue to be victims of sexual harassment at workplaces. The guidelines in Vishaka1 are followed in breach in substance and spirit by state functionaries and all other concerned. The women workers are subjected to harassment through legal and extra legal methods and they are made to suffer insult and indignity.
3. Beijing Declaration and Platform for Action, inter alia, states, “Violence against women both violates and impairs or nullifies the enjoyment by women of human rights and fundamental freedoms……. In all societies, to a greater or lesser degree, women and girls are subjected to physical, sexual and psychological abuse that cuts across lines of income, class and culture”.
4. Vishaka guidelines require the employers at workplaces as well as other responsible persons or institutions to observe them and ensure the prevention of sexual harassment to women. These guidelines read as under :
“1. Duty of the employer or other responsible persons in workplaces and other institutions:  It shall be the duty of the employer or other responsible persons in workplaces or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.  2. Definition:   For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:  (a) physical contact and advances;  (b) a demand or request for sexual favours;  (c) sexually-coloured remarks;  (d) showing pornography;  (e) any other unwelcome physical, verbal or nonverbal conduct of sexual nature.  Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victim's employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.  3. Preventive steps:  All employers or persons in charge of workplace whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:  (a) Express prohibition of sexual harassment as defined above at the workplace should be notified, published and circulated in appropriate ways.  (b) The rules/regulations of government and public sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.  (c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.  (d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at workplaces and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.  4. Criminal proceedings:  Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.  5. Disciplinary action:  Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.  6. Complaint mechanism:  Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer's organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time-bound treatment of complaints.  7. Complaints Committee:  The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its members should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the Government Department concerned of the complaints and action taken by them. The employers and person-in-charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government Department.  8. Workers' initiative:  Employees should be allowed to raise issues of sexual harassment at workers' meeting and in other appropriate forum and it should be affirmatively discussed in employeremployee meetings.  9. Awareness:  Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.  10. Third-party harassment:  Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person-in-charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.  11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in private sector.  12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.”
5. In these matters while highlighting few individual cases of sexual harassment at the workplaces, the main focus is on the lack of effective implementation of Vishaka guidelines. It is stated that the attitude of neglect in establishing effective and comprehensive mechanism in letter and spirit of the Vishaka guidelines by the States as well as the employers in private and public sector has defeated the very objective and purpose of the guidelines.
6. In one of these matters, Medha Kotwal Lele, this Court has passed certain orders from time to time. Notices were issued to all the State Governments. The States have filed their responses. On 26.4.2004, after hearing the learned Attorney General and learned counsel for the States, this Court directed as follows :
“Complaints Committee as envisaged by the Supreme Court in its judgment in Vishaka’s case will be deemed to be an inquiry authority for the purposes of Central Civil Services (Conduct) Rules, 1964 (hereinafter called CCS Rules) and the report of the complaints Committee shall be deemed tobe an inquiry report under the CCS Rules. Thereafter the disciplinary authority will act on the report in accordance with the rules.”
This Court further directed in the order dated 26.4.2004 that similar amendment shall be carried out in the Industrial Employment (Standing Orders) Rules. As regards educational institutions and other establishments, the Court observed that further directions would be issued subsequently.
7. On 17.1.2006, this Court in couple of these matters passed the following order:
“These matters relate to the complaints of sexual harassment in working places. In Vishaka vs. State of Rajasthan, (1997) 6SCC 241, this Court issued certain directions as to how to deal with the problem. All the States were parties to that proceedings. Now, it appears that the directions issued in Vishaka case were not properly implemented by the various States/Departments/Institutions. In a rejoinder affidavit filed on behalf of the petitioners, the details have been furnished. The counsel appearing for the States submit that they would do the needful at the earliest. It is not known whether the Committees as suggested in Vishaka case have been constituted in all the Departments/Institutions having members of the staff 50 and above and in most of the District level offices in all the States members of the staff working in some offices would be more than 50. It is not known whether the Committees as envisaged in the Vishaka case have been constituted in all these offices. The number of complaints received and the steps taken in these complaints are also not available. We find it necessary to give some more directions in this regard. We find that in order to co-ordinate the steps taken in this regard, there should be a State level officer, i.e., either the Secretary of the Woman and Child Welfare Department or any other suitable officer who is in charge and concerned with the welfare of women and children in each State. The Chief Secretaries of each State shall see that an officer is appointed as a nodal agent to collect the details and to give suitable directions whenever necessary.As regards factories, shops and commercial establishments are concerned, the directions are not fully complied with. The Labour Commissioner of each State shall take steps in that direction. They shall work as nodal agency as regards shops, factories, shops and commercial establishments are concerned. They shall also collect the details regarding the complaints and also see that the required Committee is established in such institutions. Counsel appearing for each State shall furnish the details as to what steps have been taken in pursuance of this direction within a period of eight weeks. Details may be furnished as shown in the format furnished by the petitioners in the paperbooks. A copy of this format shall form part of the order. The above facts are required at the next date of hearing. A copy of this order be sent to the Chief Secretary and Chief Labour Commissioner of each State for taking suitable action.”
8. From the affidavits filed by the State Governments the following position emerges in respect of each of these States:
GOA  The amendments in the Civil Services Conduct Rules and the Standing Orders have not been made so far.  GUJARAT  No amendments in the Civil Services Conduct Rules and the Standing Orders have been made so far. It is not stated that all Complaints Committees are headed by women. There is no information given whether in such committees NGO members have been associated.  NCT OF DELH I  The amendments in the Civil Services Conduct Rules have been made. The position about amendments in the Standing Orders has not been clarified. It has not been specified that all Complaints Committees are headed by women.  HIMACHAL PRADESH  There is nothing to indicate that the State of Himachal Pradesh has made amendments in the Civil Services Conduct Rules and the Standing Orders. No details of formation of Complaints Committees have been given.  HARYANA  The amendments in the Government Employees (Conduct) Rules, 1966 have been made. However, it is not specified that the amendments in Standing Orders have been made.  MAHARASHTRA  Necessary amendments in Maharashtra Civil Services (Conduct) Rules, 1974 have been made. The Labour Commissioner has taken steps for amending Mumbai Industrial Employment (Permanent Orders) Rules, 1959.  MIZORAM  The State of Mizoram has amended Civil Services Conduct Rules and also constituted Central Complaints Committee to look into complaints pertaining to cases of sexual harassment of working women at all workplaces for preservation and enforcement. A notification has been issued giving necessary directions to all private bodies.  SIKKIM  The amendments in the Civil Services Conduct Rules have been carried out and a notification has been issued for constitution of complaints committees by departments/institutions with 50 or above staff to look into sexual harassment of women at workplaces.  UTTARANCHAL  The State of Uttaranchal has carried out amendments in Civil Services Conduct Rules as well as the Standing Orders. The District Level and State Level Complaints Committees have been constituted.  WEST BENGAL  The amendments in the Rules relating to duties, rights and obligations of government employees have been made. The amendments in the Standing Orders have been carried out. Out of 56 departments of Government of West Bengal, Complaints Committees have been formed in 48 departments and out of 156 Directorates under the Government, Complaints Committees have been formed in 34 Directorates. Of 24 institutions under the Government, Complaints Committees have been formed in 6.  MADHYA PRADESH  Although State of Madhya Pradesh has made amendments in the Civil Services Conduct Rules but no amendments have been made in the Standing Orders. The Complaints Committees have been constituted in every office of every department right from the Head of the Department level to the District and Taluka level. The District Level Committees have been constituted under the chairmanship of the District Collector. The steps taken by the District Committees are monitored by the nodal departments.  PUNJAB  The State of Punjab has carried out amendments in the Civil Services Conduct Rules as well as the Standing Orders. 70 Complaints Committees have been constituted at the headquarters of different Directorates and 58 Complaints Committees have been constituted in various Field Offices.  ORISSA  No amendments in the Civil Services Conduct Rules and the Standing Orders have been made.  ANDHRA PRADESH  Amendments in the Civil Services Conduct Rules and in the Standing Orders have been made.  KARNATAKA  The amendments in the Civil Services Conduct Rules have been made by the State of Karnataka but no amendments have been made in the Standing Orders. It is stated that in most of the committees, the number of women members is above 50%. The Chairpersons are women and in most of the committees, an outside member, i.e., an NGO has been associated.  RAJASTHAN  The State of Rajasthan has carried out amendments in the Civil Services Conduct Rules but no amendments have been carried out in the Standing Orders.  BIHAR  The State of Bihar has made amendments in the Civil Services Conduct Rules but there is nothing to show that amendments in Standing Orders have been made. However, only one Complaints Committee has been constituted for the entire State.  MEGHALAYA  The State of Meghalaya has neither carried out amendments in the Civil Services Conduct Rules nor in the Standing Orders.  TRIPURA  The State of Tripura has carried out the amendments in the Civil Services Conduct Rules. There are no Standing Orders applicable in the State. 97 Complaints Committees have been constituted in most of the state government departments and organisations.  ASSAM  A mendments in the Civil Services Conduct Rules have been made but no amendments have been carried out in the Standing Orders.  MANIPUR  The State of Manipur has carried out amendments in the Civil Services Conduct Rules, but no definite information has been given regarding amendments in the Standing Orders. Only one Complaints Committee has been formed for the entire State.  UTTAR PRADESH  Amendments both in the Civil Services Conduct Rules and the Standing Orders have been carried out.  JAMMU AND KASHMIR  The State of Jammu and Kashmir has carried out amendments in the Civil Services Conduct Rules. It is stated that steps are being taken for amendments in the Standing Orders.  NAGALAND  The amendments have been carried out in the Civil Services Conduct Rules by the State of Nagaland but no amendments have been carried out in the Standing Orders.  ARUNACHAL PRADESH The State of Arunachal Pradesh has neither carried out amendments in the Civil Services Conduct Rules nor in the Standing Orders. There is only one State Level Committee for the entire State of Arunachal Pradesh.  KERALA  Amendments in the Civil Services Conduct Rules and in the Standing Orders have been carried out. There are 52 Complaints Committees in the State. All such committees are headed by women and 50% members of these committees are women and there is representation of NGO members in these committees.  TAMILNADU  The State of Tamil Nadu has carried out amendments in the Civil Services Conduct Rules. However, no amendments in the Standing Orders have been made so far.  JHARKHAND  The State of Jharkhand has carried out amendments in the Civil Services Conduct Rules. However, no amendments in the Standing Orders have been made so far.
9. From the affidavits filed by the State Governments, it transpires that the States of Orissa, Meghalaya, Himachal Pradesh, Goa, Arunachal Pradesh and West Bengal have amended the Rules relating to duties, public rights and obligations of the government employees but have not made amendments in Civil Services Conduct Rules. Similarly, the States of Sikkim, Madhya Pradesh, Gujarat, Mizoram, Orissa, Bihar, Jammu & Kashmir, Manipur, Karnataka, Rajasthan, Meghalaya, Haryana, Himachal Pradesh, Assam, NCT of Delhi, Goa, Nagaland, Arunachal Pradesh, Jharkhand and Tamil Nadu have not carried out amendments in the Standing Orders. These States appear to have not implemented the order passed by this Court on 26.4.2004 quoted above. The States which have carried out amendments in the Civil Services Conduct Rules and the Standing Orders have not provided that the report of the Complaints Committee shall be treated as a report in the disciplinary proceedings by an Inquiry Officer. What has been provided by these States is that the inquiry, findings and recommendations of the Complaints Committee shall be treated as a mere preliminary investigation leading to a disciplinary action against the delinquent.
10. The States like Rajasthan, Meghalaya, Himachal Pradesh, Assam and Jammu and Kashmir seem to have not formed Complaints Committees as envisaged in the Vishaka guidelines. Some States have constituted only one Complaints Committee for the entire State.
11. The Union Territories of Andaman and Nicobar Islands, Daman and Diu, Lakshadweep, Dadra and Nagar Haveli and Puducherry have not made amendments in the Standing Orders. The Union Territory of Chandigarh does not seem to have carried out amendments in the Civil Services Conduct Rules. Some of the Union Territories like Dadra and Nagar Haveli and Chandigarh are reported to have not yet formed Complaints Committees. Daman and Diu have formed one Complaints Committee for the Union Territory.
12. While we have marched forward substantially in bringing gender parity in local self-governments but the representation of women in Parliament and the Legislative Assemblies is dismal as the women represent only 10-11 per cent of the total seats. India ranks 129 out of 147 countries in United Nations Gender Equality Index. This is lower than all South-Asian Countries except Afghanistan. Our Constitution framers believed in fairness and justice for women. They provided in the Constitution the States’ commitment of gender parity and gender equality and guarantee against sexual harassment to women.
13. The implementation of the guidelines in Vishaka has to be not only in form but substance and spirit so as to make available safe and secure environment to women at the workplace in every aspect and thereby enabling the working women to work with dignity, decency and due respect. There is still no proper mechanism in place to address the complaints of sexual harassment of the women lawyers in BarAssociations, lady doctors and nurses in the medical clinics and nursing homes, women architects working in the offices of the engineers and architects and so on and so forth.
14. In Seema Lepcha, Seema Lepcha v. State of Sikkim & Ors. [Petition for Special Leave to Appeal (Civil) No. 34153/2010 decided on 3.2.2012] this Court gave the following directions:
“(i) The State Government shall give comprehensive publicity to the notifications and orders issued by it in compliance of the guidelines framed by this Court in Vishaka’s case and the directions given in Medha Kotwal’s case by getting the same published in the newspapers having maximum circulation in the State after every two months.  (ii) Wide publicity be given every month on Doordarshan Station, Sikkim about various steps taken by the State Government for implementation of the guidelines framed in Vishaka’s case and the directions given in Medha Kotwal’s case.  (iii) Social Welfare Department and the Legal Service Authority of the State of Sikkim shall also give wide publicity to the notifications and orders issued by the State Government not only for the Government departments of the State and its agencies/instrumentalities but also for the private companies.”
15. As a largest democracy in the world, we have to combat violence against women. We are of the considered view that the existing laws, if necessary, be revised and appropriate new laws be enacted by Parliament and the State Legislatures to protect women from any form of indecency, indignity and disrespect at all places (in their homes as well as outside), prevent all forms of violence – domestic violence, sexual assault, sexual harassment at the workplace, etc; — and provide new initiatives for education and advancement of women and girls in all spheres of life. After all they have limitless potential. Lip service, hollow statements and inert and inadequate laws with sloppy enforcement are not enough for true and genuine upliftment of our half most precious population – the women.
16. In what we have discussed above, we are of the considered view that guidelines in Vishaka should not remain symbolic and the following further directions are necessary until legislative enactment on the subject is in place.
(i) The States and Union Territories which have not yet carried out adequate and appropriate amendments in their respective Civil Services Conduct Rules (By whatever name these Rules are called) shall do so within two months from today by providing that the report of the Complaints Committee shall be deemed to be an inquiry report in a disciplinary action under such Civil Services Conduct Rules. In other words, the disciplinary authority shall treat the report/findings etc. of the Complaints Committee as the findings in a disciplinary inquiry against the delinquent employee and shall act on such report accordingly. The findings and the report of the Complaints Committee shall not be treated as a mere preliminary investigation or inquiry leading to a disciplinary action but shall be treated as a finding/report in an inquiry into the misconduct of the delinquent.  (ii) The States and Union Territories which have not carried out amendments in the Industrial Employment (Standing Orders) Rules shall now carry out amendments on the same lines, as noted above in clause (i) within two months.  (iii) The States and Union Territories shall form adequate number of Complaints Committees so as to ensure that they function at taluka level, district level and state level. Those States and/or Union Territories which have formed only one Committee for the entire State shall now form adequate number of Complaints Committees within two months from today. Each of such Complaints Committees shall be headed by a woman and as far as possible in such Committees an independent member shall be associated.  (iv) The State functionaries and private and public sector undertakings/organisations/bodies/institutions etc. shall put in place sufficient mechanism to ensure full implementation of the Vishaka guidelines and further provide that if the alleged harasser is found guilty, the complainant – victim is not forced to work with/under such harasser and where appropriate and possible the alleged harasser should be transferred. Further provision should be made that harassment and intimidation of witnesses and the complainants shall be met with severe disciplinary action.  (v) The Bar Council of India shall ensure that all bar associations in the country and persons registered with the State Bar Councils follow the Vishaka guidelines. Similarly, Medical Council of India, Council of Architecture, Institute of Chartered Accountants, Institute of Company Secretaries and other statutory Institutes shall ensure that the organisations, bodies, associations, institutions and personsregistered/affiliated with them follow the guidelines laid down by Vishaka. To achieve this, necessary instructions/circulars shall be issued by all the statutory bodies such as Bar Council of India, Medical Council of India, Council of Architecture, Institute of Company Secretaries within two months from today. On receipt of any complaint of sexual harassment at any of the places referred to above the same shall be dealt with by the statutory bodies in accordance with the Vishaka guidelines and the guidelines in the present order.
17. We are of the view that if there is any non-compliance or nonadherence to the Vishaka guidelines, orders of this Court following Vishaka and the above directions, it will be open to the aggrieved persons to approach the respective High Courts. The High Court of such State would be in a better position to effectively consider the grievances raised in that regard.
18. Writ petitions (including T.C.) and appeals are disposed of as above with no orders as to costs.

Courtesy - www.answeringlaw.com

KERALA PROHIBITION OF CHARGING EXORBITANT INTEREST ORDINANCE 2012

The Kerala Government went a step ahead in curbing the illegal activities of Money Lenders who claims exorbitant interest and creating chaos by coercion.
The new piece of legislation which came into to existence by way of an ORDINANCE, namely KERALA PROHIBITION OF CHARGING EXORBITANT INTEREST ORDINANCE 2012.  Obviously,may become a great relief to many who happen to be in trouble due to the illegal acts of Money Lenders.
The full text of the ordinance is available at

http://www.sherrylegal.com/articles/7/KERALA%20PROHIBITION%20OF%20CHARGING%20EXORBITANT%20INTEREST%20ORDINANCE%202012.pdf

Tuesday, November 6, 2012

THE RECOVERY OF VEHICLES BY THE FINANCIER NOT AN OFFENCE - Supreme Court of India


THE RECOVERY OF VEHICLES BY THE FINANCIER NOT AN OFFENCE
--Supreme Court.

The Supreme Court has ruled that the financier cannot be prosecuted for forcible 'recovery' of the vehicle till the buyer has repaid the entire loan. 
The decision comes as a major relief to banks and financial institutions. They will not face any criminal action for taking away a vehicle anytime before it is transferred in the buyer's name after he has made full payment.
A bench comprising Justice B.S. Chauhan and Justice FAI Kalifulla said it was a settled proposition of law that the financier retained the ownership during the subsistence of the hire-purchase agreement. The purchaser remains the trustee/bailee on behalf of the financier or the financial institution, it added.
"Thus, in case the vehicle is seized by the financier, no criminal action can be taken against him as he is repossessing the goods owned by him," the bench said. 
The order came on a petition filed by Anup Sarmah, who had initiated criminal proceedings against Bhola Nath Sharma and others after they took possession of his Maruti Zen financed by them. A judicial magistrate in Guwahati directed the financiers to return the vehicle to the buyer. 
They filed an appeal before the Gauhati High Court in June 2009, which quashed the criminal proceedings against them. Sarmah then approached the Supreme Court.
But it accepted the contention of the financiers that they remained the owner of the vehicle under the hire-purchase agreement and, therefore, the possession taken by them could not be held to be an offence. 
The bench pointed out that the Supreme Court had, in a number of judgments in the past, quashed criminal proceedings against financiers in such cases.
In the Trilok Singh case in 1979, the SC had quashed the criminal case against the financier who had taken away a truck from a buyer after there was a default in the payment of loan.
In 1996, the apex court went a step further and held in the K.A. Mathai case that the financier had a right to resume possession "even if the hire-purchase agreement does not contain a clause of resumption of possession".

2/11/12

Reference