| Banks can't ask for more funds after one- time settlement | ||
|
Often, once the amount is paid by the customer, the bank tries to by- pass the settlement and keep up the pressure to recover the remaining amount. This is not permissible, and constitutes a deficiency in service, as recently held by the Mumbai Suburban District Forum in the case of Anant Nitare versus the Managing Director, ICICI Bank. Nitare held a credit card issued by ICICI Bank. Between November 5, 2008 and November 12, 2008, there were transactions which Nitare disputed and suspected misuse of his card. He wrote to the bank, for which a service request number was allotted. Later, Nitare was asked to pay ₹ 5,000 for one- time settlement. After he paid, the bank asked him to pay the remaining amount. Aggrieved, Nitare filed a consumer complaint. He also claimed compensation for harassment and costs of litigation. ICICI Bank contested, claiming misuse of a credit card can occur only when the holder is careless. The bank alleged there were 63 disputed transactions which had occurred due to the Nitare's negligence in keeping his password and other credit card details private. The bank claimed it could not be held liable in such circumstances. The bank also alleged Nitare had fabricated the acknowledgement to show he had lodged a complaint with the bank regarding the misuse of his credit card but no such complaint had been lodged. The Forum observed Nitare's complaint had been registered and a service request number allotted. The one- time settlement had a serial number and the bank's stamp and acknowledgement. Hence, the Forum refused to believe the bank's allegations. The bank then argued Nitare's complaint was filed against the managing director of the bank and not against the bank itself, so it should be dismissed. Rejecting this, the Forum noted the reply to the complaint had been filed by the bank and not by its managing director. So, it had to be interpreted that the complaint against the bank had been filed through its managing director. Hence, the Forum concluded the complaint was maintainable. On merits, the Forum held the one- time settlement had been signed, stamped and sealed and acknowledged by the bank. Thereafter, the bank was not entitled to make a demand for further payment of the amount which had been waived off. In its order dated October 11, 2013, delivered by Presiding Officer J L Deshpande, along with member S R Sanap, the Forum declared Nitare had cleared the dues through the one- time settlement. It restrained ICICI Bank from making any further demand. The Forum awarded costs of ₹ 5,000 to Nitare, who argued his complaint in person. A bank cannot induce a customer to opt for a one- time settlement and then back out on the settlement. The author is a consumer activist JEHANGIR GAI
|
| ||
| Whistleblowers' Protection Bill: the new kid on the block | ||
|
Whistleblower protection in India, so far, has been abysmally poor. Basically, such a legislation is required to protect any person, whether employee or otherwise, who seeks to expose any form of corporate fraud and other violations in the work place, whether employeespecific or otherwise. Eexisting laws in India are inadequate and outdated and require to be overhauled. This is where whistleblower protection gains importance. Many countries have enacted laws for whistleblowers' protection. The Whistleblower Act that was approved by Parliament of the Republic of Malta on July 16, 2013, provides for an identity change of the whistleblower in exceptional cases. In the US, whistleblowers' protection is offered through constitutional provisions as well as other statutes. The US Supreme Court has limited the constitutional protections guaranteed to Americans to the areas of national defence and government employment. For dealing with instances of misuse of power and unfair practices, there are statutory laws and regulations that enable whistleblower disclosures. In the UK, two key pieces of legislation are the Public Interest Disclosure Act, 1998 and the Employment Rights Act, 1996. The UK whistleblower law providing protection to employees reporting on their employers underwent achange due to the June 2013 amendment. The main change to the law is that any disclosure must, in the reasonable belief of the worker, be in public interest. In India, the issue of protection of whistleblowers caught attention of the nation when Satyendra Dubey, an employee of National Highways Authority of India ( NHAI) was killed after he wrote a letter to the office of then prime minister, A B Vajpayee, about corruption in the construction of highways. Dubey's letter to the prime minister, giving details of corruption in the Golden Quadrilateral highway project, was routinely circulated. Two years later, an Indian Oil Corporation officer, Shanmughan Manjunath, was murdered for sealing a petrol pump that was selling adulterated fuel. In May 2012, SP Mahantesh, was murdered for reporting irregularities in land allotments by societies. Dubey's murder led to a public outcry at the failure of the government to protect him. As a result, in April 2004, the Supreme Court pressed the government into issuing an office order, the Public Interest Disclosures and Protection of Informers Resolution, 2004, designating Central Vigilance Commission ( CVC) as the nodal agency to handle any complaints on corruption. The Right to Information Act, 2005, was the legislation for holding the government "accountable" but did nothing for securing the interests of the person seeking information or asking questions in public interest. The Whistleblowers Protection Bill, 2011, which was passed recently by the Rajya Sabha after being passed by the Lok Sabha in 2011, is the first law of the country, dealing specifically with whistleblowers and their protection, if a disclosure against a public servant or a public authority is made. The Bill aims to protect honest officials or persons from harassment but does not provide for any penalty for harassing a public servant/ any other person making adisclosure. Also, the Bill does not provide for admission of anonymous complaints by the competent authority. The CVC and the head of the organisation have to protect the identity of the complainant. However, the Vigilance Commission can reveal the identity of the complainant to the head, if it is of the opinion that it is necessary to do so. It could have gone a step further in protecting the complainant's identity permanently and ensuring protection. Other probable flaws in the Bill would be that it differs on many issues with the proposed Bill of the Law Commission and the second Administrative Reform Commission's report. The Bill is very similar to the resolution that was passed by the government in the year 2004, designating the CVC to receive public interest disclosures. It applies in cases wherein the provisions of the Prevention of Corruption Act, 1988 are violated or when there is a willful misuse of power or discretion by a public servant. An attempt to commit a criminal offence by a public servant is also covered under this Act. Judges of the Supreme Court and high courts are, however, not covered by the definition of a public servant as given under the Bill. The Bill seeks to establish acompetent authority to which disclosures can be addressed. All proceedings before the authority will be deemed to be judicial proceedings. The provisions for providing protection to the persons making disclosure are, however, the most significant. Under Chapter IV of the Bill, the central government is to ensure that no person who has made a disclosure under this Act is victimised on the ground that he has made adisclosure. The Whistleblowers Protection Bill, 2011 seeks to establish a mechanism to receive complaints relating to disclosure on any allegation of corruption and willful misuse of power against a public servant only. With a need for greater foreign direct investment, the entry of transnational and multinationals to the country, aneed for greater accountability and investor protection has arisen and the outcome is to strengthen the guidelines on corporate governance and promote a Code for Corporate Governance to be adopted and followed by Indian companies, whether in the private sector or the public sector, banks or financial institutions, this later adopted by the Securities and Exchange Board of India through its Listing Agreement. As such there was no material provision as regards the policy of whistleblowers in the Code, however, in substance, it talked about the reporting of internal audit reports, including cases of theft and dishonesty of material nature to the Board and an Independent Audit committee consisting of nonexecutive directors. With the belief that the efforts to improve corporate governance standards in India must continue because the standards were evolving in keeping with the market dynamics, Sebi had constituted aCommittee on Corporate Governance in 2002 to evaluate the adequacy of existing corporate governance practices and further improve these practices. A major breakthrough was achieved by an amendment to Clause 49 of the Sebi's Listing Agreement to include the recommendations of the Committee Report on Corporate Governance. However, some of these mandatory recommendations were made non mandatory in the amendment, which were to be enforced by April, 2005. In addition to a list of mandatory requirements that alisted company is obliged to comply with, there are a few non- mandatory requirements that have been specified in terms of Annexure I D of the specimenlisting agreement. One such non- mandatory requirement relates to whistleblower policy. While this is a nonmandatory requirement, the company also has a mandatory requirement to disclose, in its report on corporate governance, the extent of adoption of such nonmandatory requirements. Numerous companies have adopted the whistleblower policy in their organisations in a quest to uphold the highest governance standards or in the fear of being considered late entrants to the " well- governed companies' club". The Bill is expected to establish an effective mechanism in checking and eradicating corruption in the country. Only time will prove whether this is possible. Kumkum Sesn is a partner at Bharucha & Partners Delhi Office Email: kumkum. sen@ bharucha. in The Bill does not provide for any penalty for harassing apublic servant or any other person making a disclosure KUMKUM SEN |
This mail and its attachments (if any) are confidential information intended for persons to whom the email is planned for delivery by the sender. If you have received this mail in error please notify the sender of the error by forwarding the email and its attachments (if any) and then deleting the mail received in error and the relevant email trail in this connection without making any copies or taking any prints.
__._,_.___
No comments:
Post a Comment