Citizens' Issues
CBI initiates action against fake doctors

Several doctors, who studied in the Commonwealth of Independent States or CIS countries are practising in India without fulfilling necessary formalities and taking permission from the MCI

The Central Bureau of Investigation (CBI) on Thursday launched a nationwide operation against medical practitioners operating on the basis of fake degrees and documents obtained from the Medical Council of India (MCI).


According to sources, CBI has got information that several doctors, who studied in the Commonwealth of Independent States (CIS) countries are practising in India without fulfilling necessary formalities.


It also came to light that some of them allegedly colluded with officers from MCI, who gave them permission to practice in exchange of illegal gratification even as the doctors did not fulfil necessary parameters.


“When the report came to us, we viewed it with utmost seriousness and today after finalising the first information report (FIR), we have carried out nationwide searches,” CBI Director Ranjit Sinha told reporters.


The sources said CBI started a coordinated search operation across the country. “This is an important case as such people were playing with the lives of patients,” Sinha said.


Earlier this month, Arvind Kejriwal-led Aam Admi Party (AAP) has accused Congress, Bharatiya Janata Party (BJP) and Samajwadi Party (SP) providing patronage to Dr Ketan Desai, the former chief of MCI. According to AAP, despite the ongoing criminal cases pending against Dr Desai, these parties are helping him to gain re-entry in the MCI, which oversees medical education in the country.


In 2012, the Central Bureau of Investigation (CBI) had filed a charge sheet against Dr Desai for allegedly taking bribe from the management of a Patiala-based private medical college. He was also arrested later. In 2001, the Delhi High Court had removed Desai as MCI president on charges of 'misuse of office'.


After the arrest of Dr Desai in April 2010, MCI was dissolved by the government and a board of governors managed the affairs of the Council for three and half years. However the MCI was again restored in early November 2013 by the government.


Ukraine crisis & opportunity for India to export wheat

The crisis in Ukraine may give India an opportunity to export more wheat, provided we ship out more, as our central pool stood at 24.2 million tonnes, twice more than the buffer and strategic needs

Despite the US and European threats and entreaties, Russia went ahead supporting the referendum, which overwhelmingly approved Crimea to become a member state of Russia. In effect, this peninsula was part of Ukraine and is now under Russian control.


Indian trade with Commonwealth of Independent States (CIS) has been growing in the last few years and in 2012-13, the total trade between India and Ukraine amounted to $3.18 billion. While Ukraine exports edible oils, petroleum products and fertilisers, Indian exports cover a number of products, of which pharmaceuticals supplies alone have grown, in recent years, to $154 million. After Russia, it is Ukraine, the second largest trading partner for India, in the CIS group. Indian trade with CIS amounted to $11.58 billion


Apart from natural gas, which Ukraine is estimated to have large reserves, it is also a serious Wheat supplier in the international market, often in competition with Indian bids.


In the case of wheat supplies from India, many times we have lost international contracts due to better offers from Ukraine. With the current crisis on hand, it is just possible, that Ukraine may refrain from offering its wheat. Traders in this grain have been looking at France, as a nearby alternative. It is believed that due to Crimea's move to join Russia, the spring grain to be sown this year in Crimea could be delayed, and, in any case, it is unlikely to be available for export via Ukraine. It is reported that the grain output in Crimea is 1.2% of Ukraine's overall harvest in 2013.


Ukraine expects to export 10 million tonnes of wheat, between July 2013 and June 2014, but, already, in January, they have been able to ship out 7 million tonnes, to avoid the crisis that was looming large at that time.


As of now, Indian wheat tenders, floated by both MMTC and PEC have received prices in the range of $282 as against the indicated "floor price" of $260 per tonne. A total of 150,000 tonnes are on offer, with 80,000 tonnes ex- Kakinada port (MMTC received bids at $281.05), while 70,000 tonnes ex-Kandla port (PEC received bids at $ 282.10) from some 17 bidders.


It would be in our national interest to probe the possibilities of "accepting" more than one or two bids, even if by negotiation, to ship out more wheat from the country, as our central pool stood at 24.2 million tonnes, twice more than the buffer and strategic needs. At all costs exports we must, and exceed the target of five million tonnes from both private and public stocks, bearing in mind that there are weather issues in the US, affecting their crop and the political crisis in Ukraine is not yet over.


Nature has played against India too, in the form of hailstorm in Madhya Pradesh, which is reported to have shrunk the estimated crop size by two million tonnes, according the state government. Yet, the current overflowing stocks in the FCI godowns have to be cleared soon and make way for the new arrivals, when harvests take place in the next few weeks.


At the moment, India is a helpless spectator in this crisis and we need to watch the situation carefully. Russia may even face the prospect of economic sanctions from the West, though, the thought of reaction from gas supplies, which account for 20% of its export revenues may result in both sides exercising great caution not to take the wrong step in this matter.


As is usual, India may have to tow the line of the UN resolutions, if any, on this issue!


(AK Ramdas has worked with the Engineering Export Promotion Council of the ministry of commerce. He was also associated with various committees of the Council. His international career took him to places like Beirut, Kuwait and Dubai at a time when these were small trading outposts; and later to the US.)


Class action suit in India- Interpretations overlap remedies -Part III

Class actions aim to minimise litigation by reducing multiplicity of suits, however, the ambiguous provisions leave no option for commoners other than to look up to the courts for clarity and interpretation. This is the concluding part of a three part series

The provision for class action suit in the new Companies Act, 2013 was brought in to provide stakeholders an edge in retrenching their rights. The provisions were introduced to bring together stakeholders with common interest on a shared platform so as to lower costs of litigation and boost the efficiency of the legal adjudication.


Upon perusal of the sections pertaining to class action as contained under the Act, one finds that the provisions are neither purely “class actions” as prevalent in US nor purely “derivative” as prevalent in UK. The interpretations of the sections overlap with remedies already available under section 241 of the Act and also intersect and are opposed to provisions provided under common law. The language of the section at numerous places lacks clarity, for which one would have to depend upon the courts to finally come up with right and just interpretations.


It is highly ironical that one hand, the section completely banishes jurisdiction of civil courts to try class action and on the other, one will have to resort to the wisdom of the courts to finally get a clarity regarding interpretation of the section. On one hand class actions aim to minimise litigation by reducing multiplicity of suits, while on the other the ambiguous provisions leave no option for commoners than to look up to the courts for clarity of such provisions.


Also, the Act is also silent upon how the class litigation shall be funded. In US, all class actions lawyers work on contingency model i.e.; they retain a portion of the settlement amount and charge no fees upfront. In absence of provisions with respect to funding, actioners would have to succumb to the prevailing costs of suit filing and adjudication expenses. Moreover, this does not provide an incentive to the lawyers to take up class action cases and fight them.


The intention behind introducing the class action provision was indeed a noble one expected to benefit the stakeholders by empowering them additionally to proceed against the company with minimal costs of litigation. But sadly, the idea forthwith loses its nobility when one peruses the provisions only to find them unclear, ambiguous, vague and hazy. In absence of discreet clarity what comes across is a fuzzy and lax remedy in place of a robust and concrete provision. Further, lack of clarity could lead to widespread abuse of legal procedure. For example, class actions can become a means for plaintiffs' lawyers to make a lot of money on issues of dubious merit.


It is also important to ask here whether there is really any social and legal value in class action lawsuits. In small claims class actions, there would be little value of supporting litigation in which individual class members have trivial interests. The individual claimants, because they have so little at stake, would not exercise any control over the litigation or would elect to opt out of the class and pursue individual claims. In these kinds of litigation, it is ultimately the plaintiffs' lawyer who is in total control and has the largest interest in the suit’s outcome, even if the suits result in minimal payouts to the class members. The legislation and court rules should have given more power to the courts to examine class action applications. Courts should carefully review the applications and deny class status to small claims cases with little social value in the adjudicating the claims.


What are the Reliefs?


Section 245(1) of the Companies Act, 2013 sets out the kinds of relief that the Tribunal can grant in a Class Action:


Restrain the company from committing an act, which is ultra vires the Articles or Memorandum of the company.


Restrain the company from committing breach of any provision of the company‘s Memorandum or Articles.


Declare a resolution altering the Memorandum or Articles of the company as void if the resolution was passed by suppression of material facts or obtained by mis-statement to the members or depositors, and thus restrain the company and its directors from acting on such resolution;


Restrain the company from doing an act which is contrary to the provisions of the Act or any other law for the time being in force;


Restrain the company from taking action contrary to any resolution passed by the members;


Claim damages or compensation or demand any other suitable action or remedy that the Tribunal may deem fit.


Consequences of Class Action Suits


An order passed by the Tribunal shall be binding on the company, its members, depositors, auditors, advisors, consultants, experts and other persons associated with the company. Any failure of company to comply with the order shall be liable to a fine of Rs5 lakh extendable up to Rs25 lakh and every officer in default shall be punishable with an imprisonment of three years and with fine of Rs25,000 extendable up to Rs1 lakh.


Consequences of Frivolous Action


Section 245(10) states that where any application filed before the Tribunal is found to be frivolous or vexatious, it shall, for reasons to be recorded in writing, reject the application and make an order that the applicant shall pay to the opposite party such cost, not exceeding Rs1 lakh, as may be specified in the order. Given that a minimum of 100 members can join together to file a class action, this comes down to a maximum cost of Rs1,000 each member. The cost would be much less if more members join. Such minimal amount may not be enough to deter frivolous litigation.


Can a plaintiff opt out of a Class Action?


In the US, courts have held that the principle of “Due Process” requires that absent class members be given adequate notice, adequate representation, and adequate opportunity to opt out, before they can be bound by a final judgment in the suit. (Phillips Petroleum Co. v. Shutts)


Under Companies Act 2013, there is no provision for opting out.


Effect on Subsequent Litigation


What is the effect of class actions on subsequent litigation? The general rule of res judicata requires that each and every cause of action should be litigated only once. To require the same case to be litigated more than once on the merits is a waste of the court’s time, without offering any assurance to either side that the outcome in the second trial is any better than that in the first. So, the legal system has to make sure that one trial is done well, after which the parties and their privies are bound. For example, if the trustee has lost the suit against the third party, then his beneficiary should be bound by that initial litigation, for otherwise the beneficiary has the incentive to hang back at the outset and then intervene, if and only if the trustee loses the first suit. No legal system should encourage the proliferation of suits by several persons who have partial interests in the same basic claim.


In the US, there is a bar on subsequent suits and it will be interesting to see whether the same principle will be applied by NCLT as well.


You may also want to read…

Class action suit in India- Will it deliver or fail? -Part I

Class action suit in India- Absence of a distinguishing factor -Part II


(Both Shambo Dey  and Prachi Narayan are researchers at Vinod Kothari & Co)


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