James B. Vasile argued the cause for petitioner. With him on the briefs was Joseph E. Stubbs.
Laura J. Vallance, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With her on the brief were John H. Conway, Acting Solicitor, and Susan J. Court, Acting Deputy Solicitor.
The City of Centralia, Washington ("Centralia") brings this petition for review to challenge an order of the Federal Energy Regulatory Commission ("FERC" or "Commission") requiring Centralia to conduct a study of the effects of the Yelm Hydroelectric Project on the anadromous fish in the Nisqually River. Centralia filed an application in 1989 for a license to operate the existing Yelm Hydroelectric Project. The National Marine Fisheries Service ("NMFS") recommended that FERC require Centralia to construct a tailrace barrier to prevent harm to the river's anadromous fish population. The Acting Director of Hydropower Licensing determined that the cost of constructing a tailrace barrier could not be justified, because the benefits of the barrier had not been demonstrated. He held, however, that a study should be undertaken to determine whether, and to what extent, the Project was harmful to the fish. FERC, with two Commissioners dissenting, denied Centralia's petition for rehearing. Centralia now petitions for review.
Under sections 4(e) and 10(a) of the Federal Power Act ("FPA" or "Act"), 16 U.S.C. SS 797(e), 803(a), as amended by the Electric Consumers Protection Act ("ECPA"), Pub. L. No. 99-495, 100 Stat. 1243 (1994), FERC must balance power and non-power values when deciding whether to issue hydropower licenses. In this case, Centralia contends that the Commission's order requiring a study should be vacated, because FERC failed to accurately weigh the high cost of the study against the negligible benefits to be derived from the study. We agree. FERC does not dispute that the study will cost Centralia up to $300,000 to determine whether a tailrace barrier costing $1,000,000 should be constructed. FERC also concedes that the study could prove inconclusive. In addition, FERC has no meaningful hard evidence to prove that the hydroelectric project is harmful to fish. In contrast, the Nisqually Indian Tribe("Tribe"), which operates a fishery on the river, has submitted concrete data to show that no real harm to the fish results from the Project. In short, the record in this case does not support either the construction of a tailrace barrier or a study to determine its feasibility. Accordingly, the petition for review is granted.
Centralia operates the Yelm Hydroelectric Project along the Nisqually River. In the late 1970s, the Nisqually Indian Tribe, which operates a fishery along the Nisqually River, filed a complaint claiming that the Yelm Project was harming the fishery. Centralia and the Tribe subsequently commenced negotiations in an effort to settle the Tribe's claims.In 1985, in a separate proceeding, FERC determined that Centralia, which had been operating the Yelm Project since 1930 without a license, was required to file for a license.Centralia submitted a license application in 1989.
The Tribe and Centralia finally reached a settlement in 1991. See Stipulation and Settlement Agreement between the City of Centralia and the Nisqually Indian Tribe, Executed Feb. 28, 1991, reprinted in Joint Appendix ("J.A.") 88.Centralia agreed to provide the Tribe with money, land, and other concessions in exchange for the Tribe's support in its license application with FERC. Centralia also agreed to achieve a minimum flow in the river.
[t]he Nisqually Tribe's 1990 settlement agreement with Centralia calls for Centralia to construct a tailrace barrier. This portion of the agreement was based on the assumption that a tailrace barrier would be required of Centralia by FERC; it was not based on a lengthyanalysis of the need for the barrier and should not beused by FERC or other agencies as a basis for requiring such a barrier. If the tailrace barrier is not imposed by FERC, Centralia and the Nisqually Tribe will meet tomodify the settlement agreement to provide additional funding for fisheries enhancement.
Id. at 2-3, reprinted in J.A. 104-05. Subsequently, in a response to FERC's request for additional information, Centralia maintained that a tailrace barrier would not be in the public interest, both because of its "high cost" and the "absence of any reliable data to support the need for the barrier." See Centralia's Response to Enclosure B of FERC Staff Letter Dated April 12, 1991, reprinted in J.A. 111.
Since no information exists regarding the magnitude of delay, false attraction, or turbine blade mortality of salmon that the project could be causing, if any, we cannot conclude that tailrace barriers would significantly reduce delay of upstream migrants or turbine runner mortality.
Therefore, we cannot conclude that significant en-hancement to the river's salmon populations or fishery would be achieved with construction of the tailrace barrier. Consequently, a tailrace barrier cannot be justified.
Id. at 23, reprinted in J.A. 142.
Because FERC had rejected NMFS' recommendation of a tailrace barrier, an effort was made pursuant to S 10(j) of the FPA, 16 U.S.C. S 803(j), to reconcile the disagreement between the agencies. FERC allowed NMFS time to substantiate the need for a tailrace barrier. See Letter to Merritt E. Tuttle (Mar. 23, 1992), reprinted in J.A. 169. In response to FERC's inquiry, NMFS claimed that the Environmental Assessment was "seriously flawed." Letter from Merritt E. Tuttle, Division Chief, NMFS to Dean L. Shumway, Director, Division of Project Review, FERC (Apr. 30, 1992), reprinted in J.A. 173. NMFS argued that there was not enough information about harm to the fish, because Centralia had failed to do a study on the impact of the Yelm Project. It noted that NMFS' general policy is to require tailrace barriers, because fish can be injured in the tailrace. It described how that happened and noted that " [d]elay and injury has been documented at a number of sites." Id. at 174.
NMFS also asserted that sufficient evidence demonstrated potential harm to the fish. It claimed that, even without a study, injury and false attraction were potential problems, because the fish in the river were definitely strong enough to swim up to the turbine. NMFS contended that "FERC's failure to order Centralia to conduct [a] tailrace study ...has created the informational void present at this time." Id. at 6, reprinted in J.A. 178. NMFS thus recommended that FERC either order the barrier to be built or order Centralia to conduct a study evaluating the impacts of the Project on the fisheries.
Two meetings between FERC and NMFS officials (along with other interested parties) were held during the summer of 1992, and NMFS officials submitted further arguments in support of their recommendation. The meetings did not resolve any issues, however. Everyone agreed that salmon can be found in the tailrace area, but the parties disagreed about whether the fish were harmed. NMFS continued to insist that either a barrier should be built, or a study done.It submitted a so-called "Summary of Key Evidence" to make the case for its recommendation. It noted that fish are commonly observed in the tailrace; that someone witnessed a fish trying to swim into the tubes and one fish jumped and likely injured itself; and that false attraction, delay and injury "has commonly occurred at other powerhouse tailraces in the Pacific Northwest." Summary of Key Evidence, submitted by Merritt E. Tuttle, DivisionChief, NMFS, Aug. 18, 1992, reprinted in J.A. 197.
In April 1996, FERC issued a Final Environmental Impact Statement (assessing the cumulative impacts of the Yelm Project with another hydroelectric project on the river) that concluded that the operation of the two projects would result in minor impacts on the environment, which would be outweighed by the projects' benefits. The report also stated that the fish stocks at issue were listed "healthy." A "healthy stock" listing means that a "stock of fish [is] experiencing production levels consistent with its available habitat and within the natural variations in survival for the stock." Final Environmental Impact Statement, Nisqually Hydroelectric Project, July, 1996, reprinted in J.A. 206, 226-27 (listing chinook salmon, coho salmon, chum salmon, pink salmon, and winter steelhead trout stock as "healthy").
Finally, on March 7, 1997, the Acting Director of the Office of Hydropower Licensing issued an order rejecting NMFS' recommendation that Centralia build a tailrace barrier, but accepting the recommendation that Centralia be required to conduct a study on the potential need for a tailrace barrier.The order concluded that "the information is not sufficient to quantify" the harm to the fish "caused by the Yelm Project's tailrace, or the consequences of these potential projectinduced effects on the stream's fishery." City of Centralia Light Dep't, 78 F.E.R.C. p 62,171, at 64,636 (1997). Thus, the incremental benefits of the barrier were not demonstrated sufficiently to justify the cost of the barrier. However, the Director agreed with NMFS that "a study is necessary to determine how many fish are injured or killed by contact with the project turbine blades ... [and] also ... [that] a study is needed to determine how much false attraction and delay" is occurring. Id.
[t]hese alternative measures address the single greatest threat to the salmon resources along the Nisqually Riverand tributaries, the threat of increasing development pressure due to urbanization along the basin's shorelines. They will focus on the acquisition for permanent protection and rehabilitation of critical habitat areas along the river and major tributaries. This would further the adaptive management goals discussed above and required under current approaches to salmon management, and would be substantially more beneficial than imposinga costly tailrace barrier that addresses a minimal or non-existent problem.
Id. The Tribe also submitted additional support in 1998 and 1999, stating that, in its annual harvest management activities, there were "no indications through [its] surveys that the fish are being delayed at any point during their migration."Letter from David A. Troutt, Natural Resources Director, Nisqually Indian Tribe to Bill Tobin, Natural Resources Attorney, Nisqually Indian Tribe (May 12, 1998), reprinted in J.A. 327; Letter from David A. Troutt, Natural Resources Director, Nisqually Indian Tribe to Bill Tobin, Natural Resources Attorney, Nisqually Indian Tribe (Feb. 11, 1999), reprinted in J.A. 333.
to use their best efforts to obtain concurrence ofFERC [and other agencies] that the tailrace barrier should not be a condition of Centralia's FERC li-cense.
if ... Centralia is not required to construct thetailrace barrier, then Centralia and the Tribe shallequally share Centralia's savings from not having to construct the barrier.
money paid by Centralia to the Tribe ... shall besegregated by the Tribe and used exclusively for the protection, rehabilitation or enhancement of the ana-dromous fisheries resources of the Nisqually River.
Stipulation and Settlement Agreement between the City of Centralia and the Nisqually Indian Tribe, Amendment No. 1, reprinted in J.A. 328.
FERC then denied rehearing. It noted that there is evidence of fish in the Project's tailrace, and that, " [b]ased on the record before us, during parts of the salmonid migration season, the tailrace flows nearly equals flow in the bypassed reach," and that fish could be attracted to it, "especially during August and September." City of Centralia Light Dep't, 87 F.E.R.C. p 61,383, at 62,421 (1999). The Commission thus concluded that fish might be harmed. FERC noted that this sparse evidence, while not enough to support an order requiring the construction of a tailrace barrier, was enough to require Centralia to conduct a study.
Two Commissioners dissented. Commissioner Bailey stated that she was not convinced that the evidence in the record was sufficient to require a study, and she did not believe that a study was justified under the balancing required by Part I of the Act. She pointed out that "the record submissions ...both before and after the date of the [environmental assessment] do nothing more than suggest, based on isolated observations and flow-based understandings, the presence of fish (including a single jumping adult salmon) in, or the attraction of fish to, the tailrace area of the project." Id. at 62,423.She cited with approval the Tribe's studies and stated that they demonstrated that there was no need for Centralia to conduct a study. She stated that the Commission had failed to engage in the balancing of costs and benefits required by the Act and that the costs of a study outweighed any perceived benefits. She cited Amendment No. 1 of the Centralia-Tribe settlement and stated that any concerns she might have had about not ordering the barrier were alleviated by the parties' agreement to spend the savings on other fishery enhancements. See id. at 62,424. Commissioner HErbert agreed with Commissioner Bailey, adding that "funds are more efficiently utilized if spent on species enhancement measures, as stipulated between the city and the tribe, rather than the study prescribed in this matter." Id. "Let us remember," he added, "it is the survival and enhancement of the species which is paramount." Id. This appeal followed.
Under the FPA, FERC may license hydroelectric projects on federal lands and on waterways that are subject to congressional regulation under the Commerce Clause.16 U.S.C. S 797(e) (1988). Under sections 4(e) and 10(a)of the FPA, 16 U.S.C. SS 797(e), 803(a), as amended by the Electric Consumers Protection Act ("ECPA"), Pub. L. No. 99-495, 100 Stat. 1243 (1986), FERC must consider environmental issues when deciding whether to issue hydropower licenses.
In deciding whether to issue any license under [the FPA] for any project, the Commission, in addition to the power and development purposesfor which licenses are issued, shall give equal consideration to the purposes of energy conservation, the protection, mitigation of damage to, and enhancement of, fish and wildlife (including related spawning grounds and habitat), the protection of recreational opportunities, and the preservation of other aspects of environmental quality.
16 U.S.C. § 803(a) (1988).
Additionally, under section 10(j) of the FPA, 16 U.S.C. S 803(j), FERC must impose conditions on licenses "based on recommendations received pursuant to the Fish and Wildlife Coordination Act (16 U.S.C. S 661 et seq.) from the National Marine Fisheries Service, the United States Fish and Wildlife Service, and State fish and wildlife agencies." S 803(j) (1). FERC retains ultimate authority, however, to decide whether any recommended conditions are "inconsistent with the purposes of" the FPA or other laws. S 803(j) (2). When it acts contrary to a recommendation received from a wildlife agency, FERC must make an appropriate finding on therecord to justify its decision. Id.
[However], the ECPA amendments do not give environmental factors preemptive force.... FERC still is charged with determining the "public interest," i.e., balancing power and non-power values. Even where the fish and wildlife agencies make formal section 10(j) recommendations, those agencies have no veto power. See National Wildlife Fed'n v. FERC, 912 F.2d 1471, 1480(D.C. Cir. 1990) ("While the Commission must address each recommendation, the discretion ultimately vests in the Commission as to how to incorporate each recommendation. If we read the statute any other way, the Commission would be held hostage to every agency recommendation, and the Commission's role of reconciling all competing interests would be compromised.").
Id. at 543-45. See also City of Oconto Falls v. FERC, 204 F.3d 1154, 1160 (D.C. Cir. 2000) (" [T]he Commission still is charged with determining the 'public interest,' i.e., balancing power and non-power values. Even where the fish and wildlife agencies make formal § 10(j) recommendations, those agencies have no veto power.") (citations and internal quotation marks omitted).
The question raised in this petition for review is whether FERC's order, "requiring Centralia to conduct a study to determine the extent of [Yelm] project impacts on the upstream migration of steelhead trout and salmon," City of Centralia, 87 F.E.R.C. at 62,421-22, is supported by substantial evidence and is not arbitrary and capricious. See United States Dep't of Interior, 952 F.2d at 545 (stating the substantial evidence and arbitrary and capricious standards of review); City of Oconto Falls, 204 F.3d at 1159 (same); Texaco, Inc. v. FERC, 148 F.3d 1091, 1095 (D.C. Cir. 1998) (same).Because FERC's order is devoid of "reasoned decision making," Texaco, 148 F.3d at 1095, and lacks substantial evidence to justify requiring Centralia to conduct a study, we are constrained to grant the petition for review.
FERC is required by sections 4(e) and 10(a) of the Act to give "equal consideration" to energy and environmental considerations. In other words, it must "balanc [e] power and non-power values." United States Dep't of Interior, 952 F.2d at 545.The statute does "not give environmental factors preemptive force." Id. FERC's order in this case makes no attempt whatsoever to "balance" power and non-power values in justifying the need for a study. The reason seems obvious: there are no material environmental considerations that weigh in favor of a study.
FERC is clear, and the record surely supports its conclusion, that there are no facts sufficient to require Centralia to construct a tailrace barrier. See City of Centralia, 87 F.E.R.C. at 62,421. The agency's Environmental Assessment report made it plain that there was nothing in the record to support the construction of a tailrace barrier. Environmental Assessment at 23, reprinted in J.A. 142. In other words, FERC's own studies could uncover no non-power concerns. And during the § 10(j) exchanges between FERC and NMFS officials, FERC never varied from the position taken in the Environmental Assessment that the costs of a barrier could not be justified.
Having acknowledged that a barrier is not justified, FERC stumbles badly in concluding that the costs of a study could be justified. FERC is certainly empowered to require an applicant to conduct a study when there is some evidence of a problem and a study is necessary to determine the extent of the harm. But not even FERC is suggesting that an applicant has a duty to determine if a problem exists. Yet, that is the result of the disputed order in this case.
FERC's order articulates no evidence of harm. Rather, FERC relies on the fact that fish are observed in the Project's tailrace and the assertion that "during parts of the salmonid migration season, the tailrace flows nearly equals flow in the bypassed reach." Thus, FERC argues, "salmonids could be attracted to the tailrace discharge or the bypassed reach" and "either be delayed in their migrations or injured or killed if they enter the draft tubes and are struck by the turbines." City of Centralia, 87 F.E.R.C. at 62,421.FERC's conclusion is based on sheer speculation. Therefore, it cannot be said that there is substantial evidence justifying a study. See Bangor Hydro-Elec. Co. v. FERC, 78 F.3d 659, 663 (D.C. Cir. 1996) (rejecting characterization that an agency conclusion was a "finding" where it was merely a prediction based on opinions). That fish could be attracted to the flow is not evidence of a problem that warrants a study. Indeed, FERC's only evidence that fish are harmed is that someone saw a single jumping fish that hit a concrete barrier and may have been hurt. City of Centralia, 87 F.E.R.C. at 62,421 n.7.This is not evidence enough to support the disputed conclusion in this case.
Not only is there no substantial evidence to support FERC's order, there is substantial evidence to support the opposite position endorsed by Centralia and the Tribe. As already noted, the record contains abundant submissions from the Tribe showing that, based on the Tribe's surveys, no harm results from the Project. See Letter to Director of the Office of Hydropower Licensing (Apr. 11, 1997) (stating that the Tribe believed that both the barrier and a study were unnecessary and describing the benefits of the other fishery enhancement projects), reprinted in J.A. 317. See also Letter to William C. Cummings (July 25, 1991), reprinted in J.A. 103 (" [S]ince minimum flows were established in 1977 we have not documented any delay problems at the powerhouse," and "we have studied chinook and pink migration and determined that these species were found far upstream of the powerhouse at an early date."); Letter to Bill Tobin (May 12, 1998), reprinted in J.A. 327 (noting that after conducting field surveys on foot, boat, raft or helicopter, the Tribe had "not noticed any delays caused by the power plant associated with the Centralia hydroelectric project"); Letter to Bill Tobin (Feb. 11, 1999), reprinted in J.A. 333 (same). Neither NMFS in its submissions nor FERC in its order point to record evidence to refute the Tribe's submissions.
Finally, Centralia contends, and we agree, that FERC's order is arbitrary and capricious for want of reasoned decision making. On the record here, "the costs of [FERC's] prescription far outweigh any benefits to fish or the general environment and is therefore unreasonable." Bangor HydroElec., 78 F.3d at 663. FERC acknowledges that "a study could be rather expensive [i.e., as much as $300,000] and could prove inconclusive." City of Centralia, 87 F.E.R.C. at 62,421 n.3. And Centralia and the Tribe convincingly argue that the more than $500,000 that Centralia will contribute to pay for alternative fishery enhancement measures is a far superior way to protect the fish and river environment than a $300,000 expenditure for what will likely be an inconclusive study on the feasibility of a tailrace barrier.
FERC has no reasonable answer to Centralia's argument, because it has failed to weigh the relative costs and benefits of the proposed study. Standing alone, the study is arguably too expensive, for it is difficult to justify a $300,000 expenditure for an inconclusive study to determine whether to spend another $1,000,000 to construct a tailrace barrier to address a problem that has not been identified. When weighed against the alternative remedies proposed by Centralia and the Tribe, however, the order requiring a study borders on absurd.
Given the record in this case, we must conclude that FERC has not provided reasonable support, i.e., "substantial evidence," either for the construction of a tailrace barrier or a study to determine its feasibility; and we also must conclude that FERC has failed to show, in the required statutory balancing of power and non-power values, that a study is "reasonably related to its goal" of enhancing the fishery of the Nisqually River. Bangor Hydro-Elec., 78 F.3d at 664.
For the aforementioned reasons, the petition for review is granted. FERC's order requiring Centralia to conduct a study is hereby reversed and vacated.


By far, the most difficult task employers will have in 2015 with respect to Healthcare Reform will be employee hour tracking. The below is a great summary of some of different situations you'll be sure to face.
Thereafter, the employer determines an employee’s status as a “full-time employee” based on the employee’s hours of service for each calendar month from date-of-hire until such time as the employee becomes an ongoing employee.
In the case of a new variable hour, new seasonal, or new part-time employee who experiences a “change in employment status” during his or her initial measurement period such that, if the employee had begun employment in the new position or status, the employee would have reasonably been expected to be full-time, an employer is not be subject to an assessable payment for that employee until (i) the first day of the fourth full calendar month following the change in employment status, or (ii) if earlier and the employee is a full-time employee based on the initial measurement period, the first day of the first month following the end of the initial measurement period (including any administrative period).
As in the case of offers of coverage to full-time employees, the nature of the offer of coverage makes a difference. Where the employer’s offer of coverage fails to provide minimum value, the employer is not subject to an assessable payment under Code § 4980H(a) with respect to the employee, but the employer remains subject to the assessable payment under Code § 4980H(b). If the offer of coverage provides minimum value, the employer also will not be subject to an assessable payment under section 4980H(b).
(i) Code § 4980H(a). The employer will not be subject to an assessable payment under Code § 4980H(a) during the initial measurement period (and any associated administrative period) if the employee who qualifies is offered coverage no later than the first day of the associated stability period (provided the employee is then still employed).
(ii) Code § 4980H(b). If the offer of coverage provides minimum value, the employer also will not be subject to an assessable payment under Code § 4980H(b).
If an ongoing employee experiences a change in employment status before the end of a stability period, the change will not affect the application of the classification of the employee as a full-time employee (or not a full-time employee) for the remaining portion of the stability period. As a result, if an ongoing employee fails to qualify for an offer of coverage during a stability period because the employee’s hours of service during the prior measurement period were insufficient for full-time-employee treatment, and the employee experiences a change in employment status that involves an increased level of hours of service, the treatment of the employee as a non-full-time employee during the remainder of the stability period is unaffected.
A new part-time employee who transfers to a full-time position during his or her initial measurement period is treated as full-time under the rule described above. The employer will not be subject to an assessable payment for the period before the first day of the fourth full calendar month following the change in employment status, or if earlier (and the employee averages 30 or more hours of service per week during the initial measurement period) the first day of the first month following the end of the initial measurement period including any administrative period. If the change occurs when the (previously, new) part-time employee is an ongoing employee, however, then no offer is required until the end of the stability period.
NOTE: The rules barring “waiting periods” in excess of 90 days under the Public Health Service Act must also be satisfied. Fortunately, final regulations implementing the waiting period rules generally facilitate simultaneous compliance with both standards.
For example, if an employee started employment and worked for six weeks, then had a period of eight weeks during which no hours of service were credited, the employer could treat the employee as a rehired employee.
Where the employee has not experienced a break-in-service, he or she is a “continuing employee.” As such, his or her status vis-à-vis the application of the look-back measurement method does not change. The analysis set out in item (1) above applies here as well.
The transfer to a position that would qualify as variable hour if occupied by a newly hired employee makes no difference where an employee was originally determined to be, and is hired as, a full-time employee by an employer using the look-back measurement method. This employee will be full-time from date-of-hire until he or she becomes an ongoing employee. Accordingly, his or her treatment is determined month-by-month.


text:
Posted On August 30, 1897 by &filed under Calcutta High Court, High Court.
1. In the suit out of which this appeal arises, the plaintiff Padarath Ahir sued to recover Rs. 304-12-9 dams, which he had to pay into Court, in order to obtain the release of his crops from attachment, together with Rs. 7-0-9 dams, the costs alleged to have been incurred in making the attachment. The plaintiff’s case was that the principal defendant Jagdeo Singh had wrongfully caused the crops to be distrained under colour of Section 121 of the Bengal Tenancy Act, 1885, as the crops of the second defendant Anarath Rai, falsely alleging that the latter was the tenant of the plaintiff’s holding on which the crops had been grown. Both the Courts below have found in favour of the plaintiff on the facts.
2. The plaint was filed within one month of the date when the attachment was made, but for some reason, which has not been explained to us, there appears to have been very great delay in disposing of the suit, and at a very late stage of the trial, some fourteen months after the filing of the plaint, a supplementary written defence was filed, in which for the first time the plea of defect of parties was taken. It was urged that inasmuch as Padarath’s brother Kirtarath had an interest in the holding, he should have joined in bringing the suit. The obvious reply to this plea was that under Section 34 of the Code of Civil Procedure it was not admissible at that stage of the proceedings, but the plaintiff unfortunately for himself attempted to cure the defect to which objection had been taken, and what was done was that Kirtarath applied with Padarath’s consent to be added as a co-plaintiff. This was done with the result, which might have been expected, that a fresh plea of limitation, based upon Section 22 of the Limitation Act, was at once taken by the defendants. That plea was allowed by the Court of First Instance so far as the interest of Kirtarath was concerned, and a decree was given only for one-half of the amount claimed, excluding the sum alleged to have been paid as the costs of the deposit, which was disallowed as not proved.
3. The defendant Jagdeo Singh appealed, and Padarath also appealed in respect of the moiety disallowed as the share of Kirtarath, but both appeals were dismissed by the Lower Appellate Court.
4. The defendant Jagdeo Singh only has come up to this Court in second appeal. The grounds which have been argued before us are, first, that the plaintiff had no right of suit, and; secondly, that the whole of the claim ought to have been held to have been barred by limitation.
5. A preliminary objection was taken for the respondent that no second appeal lies in the case, inasmuch as it is in reality not a suit for compensation for illegal distress such as is contemplated by Article (35) (j) of the second schedule of the Provincial Small Cause Courts Act, but is merely a suit for the recovery of the amount which the plaintiff-respondent had had to pay in order to procure the release of his crops from attachment. We think that objection is untenable, because the claim was not only for the recovery of the sum paid, but also for damages, namely the cost alleged to have been incurred in paying it. It is therefore a suit for compensation.
6. We proceed to deal with the appeal.
7. It is contended in the first place that the suit will not lie at all because such a suit can be brought only under the provisions of Section 140 of the Bengal Tenancy Act, and under that section a suit for compensation, where property has been distrained on an application made under Section 121 of the Act, lies only in a case in which such an application is not permitted by the latter section. It is contended that in the present case the distraint was made on an application made under Section 121 and permitted by the section. We think that there is nothing in Section 140 to exclude an action of this kind in a case like that before us in which the landlord is found to have abused his power of distraint by distraining the crops which belong to the tenant on the pretence that they belong to another person in collusion with himself. There has been an invasion of the rights of the tenant for which he is entitled to a remedy, and if the case is not one of the kind contemplated by Section 140 he is not, so far as we can see, deprived by the provisions of that section of the ordinary right of action which any person who suffers from a tortious act has against the tortfeasor. We may observe that this objection appears to have been taken for the first time in this Court.
8. With reference to the question of limitation we have first to see whether the addition of Kirtarath as a co-plaintiff was, in the circumstances of the case, legally made, looking to the provisions of Section 34 of the Code of Civil Procedure. No doubt the objection taken by the defendants for want of parties was inadmissible under that section, as not having been made before the first hearing. The difficulty is that that objection was not made in the proper manner, as we have already noticed, but Kirtarath made an application, with the consent of the original plaintiff Padarath, to be added as a co-plaintiff. Under the provisions of Section 32 this could be done at any time, and we think that the validity of the act of the Court, which was done at the instance of Kirtarath and Padarath, cannot be affected by the fact that in moving the Court to do it they are influenced by the defendants having made an objection which was not sustainable and which Padarath might have successfully resisted on that ground. The addition of Kirtarath was perfectly legal in itself, and we think that Padarath and he are bound by their own act in causing it to be made.
9. The contention for the appellant on the point of limitation is that the two brothers had a joint cause of action upon which they could only sue jointly, and therefore the bar against Kirtarath’s claim must apply to that of Padarath also. No provision of law has been cited in support of this argument, but we have been referred to the following reported cases, several of which appear to have been cited in the Courts below: Obhoy Churn Nundi v. Kritartha Moyi Dossee (1881) I.L.R. 7 Cal. 284 Ramsebuk v. Ramlall Koondoo (1881) I.L.R. 6 Cal. 815; Ramdoyal v. Junmenjoy Coondoo (1887) I.L.R. 14 Cal. 791; Imamuddin v. Liladhar (1892) I.L.R. 14 All. 524: Jibanti Nath Khan v. Gokool Chunder Chowdry (1891) I.L.R. 19 Cal. 760, 764 and Kalidas Kevaldas v. Nathu Bhagvan (1883) I.L.R. 7 Bom. 217.
10. None of these cases seems to us to be in point. No doubt there are certain classes of cases in which persons having the same cause of action must sue jointly, such as suits upon a contract; but we are not aware of any authority for the application of this rule to actions on tort in every case in which several persons have been damnified by the same tortious act.
11. The non-joinder of a plaintiff in an action for wrong independent of contract may be a ground for insisting on the person being joined as plaintiff; but if that objection be not taken at the time and in the way provided by law, the defendant is liable for such portion of the damages as have been incurred by the plaintiff alone.
12. We do not think that there was anything to prevent Padarath in the present case from suing alone for compensation for the illegal distraint, as far as he was injuriously affected by it, and in this view his claim, which was certainly brought in time, would not be barred by the subsequent addition of Kirtarath as a co-plaintiff.
13. We dismiss this appeal with costs.

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JANA BOUZEK, MAC SETTER, SHARON WESTERGREEN, MELISSA STONE, and MIKE JOHNSTON, Defendants.
Plaintiff, a prisoner at the Airway Heights Corrections Center, brings this pro se civil rights complaint pursuant to 42 U.S.C. § 1983. By separate Order the Court granted Plaintiff leave to proceed in forma pauperis. Plaintiff seeks his release from incarceration, claiming that, approximately eight years ago, police officers compelled him through coercion to write a statement; a prosecutor engaged in misconduct by referencing that statement in closing arguments; and his public defender provided ineffective assistance by failing to assert his incompetency to stand trial.
Under the Prison Litigation Reform Act of 1995, the Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b)(1), (2), 1915(e)(2); see Barren v. Harrington, 152 F.3d 1193, 1194-95 (9th Cir. 1998).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1138-39 (9th Cir. 2000) (en banc); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The Court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute on other grounds as stated in Lopez, 203 F.3d at 1130-31; Franklin, 745 F.2d at 1227.
The facts alleged in a complaint are to be taken as true and must “plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Mere legal conclusions “are not entitled to the assumption of truth.” Id. The complaint must contain more than “a formulaic recitation of the elements of a cause of action.” Bell Atl Corp. v. Twombly, 550 U.S. 544, 555 (2007). It must plead “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. On the basis of these standards, Plaintiff's present allegations fail to state a claim upon which relief may be granted.
The applicable statute of limitations for Section 1983 claims under Washington law is three years. See RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1058 (9th Cir. 2002); Millay v. Cam, 135 Wash.2d 193, 206 (1998) (requiring “bad faith, deception, or false assurances by the defendant and the exercise of diligence by the plaintiff, ” for equitable tolling to apply). Plaintiff has presented no basis for equitable tolling. Therefore, his allegations against named Defendants which occurred more than three years prior to May 30, 2018, the date he submitted his complaint to this Court, ECF No. 1, are time-barred.
Plaintiff states specifically that he is not challenging the conditions of his confinement. ECF No. 1 at 11. Rather, he asks this Court to vacate an allegedly wrongful conviction. Id.
If a state prisoner challenges the fact or duration of his confinement, or seeks a determination that he is entitled to release or a shortening of his period of confinement, his only federal remedy is a writ of habeas corpus, with its requirement of exhaustion of state remedies. See Heck v. Humphrey, 512 U.S. 477, 481 (1994); Preiser v. Rodriguez, 411 U.S. 475, 487-90 (1973). A Section 1983 claim is not the appropriate vehicle for a prisoner to challenge his underlying state conviction and sentence by seeking injunctive relief. Preiser, 411 U.S. at 489 (“[A] state prisoner challenging his underlying conviction and sentence on federal constitutional grounds in a federal court is limited to habeas corpus . . . he cannot bring a § 1983 action, even though the literal terms of § 1983 might seem to cover such a challenge”). Therefore, Plaintiff is not entitled to the relief he in this § 1983 action.
None of the named Defendants is located in the Eastern District of Washington and none of the events giving rise to Plaintiffs claims occurred in this district. 28 U.S.C. § 1391(b). Therefore, venue is not proper in the Eastern District of Washington.


1. A decision of a state court applying and enforcing a state statute of general scope against a particular transaction as to which there was a distinct and timely insistence that, if so applied, the statute was void under the federal Constitution necessarily affirms the validity of the statute as so applied, and the judgment is therefore reviewable by writ of error under § 237 of the Judicial Code. P. 274 U. S. 385.
2. The inquiry then is whether the statute is constitutional as applied and enforced in respect to the situation presented. P. 274 U. S. 385.
3. This Court will review the finding of facts by a state court where a federal right has been denied as the result of a finding shown by the record to be without evidence to support it; or where a conclusion of law as to a federal right, and a finding of fact, are so intermingled as to make it necessary, in order to pass upon the federal question, to analyze the facts. P. 274 U. S. 385.
means of effecting industrial or political revolution, or for profit . . ."
"[t]hat the working class and the employing class have nothing in common, and that there can be no peace so long as hunger and want are found among millions of working people and the few who make up the employing class have all the good things of life. Between these two classes, a struggle must go on until the workers of the world organize as a class, take possession of the earth and the machinery of production, and abolish the wage system. Instead of the conservative motto, 'A fair day's wage for a fair day's work,' we must inscribe on our banner the revolutionary watchword, 'Abolition of the wage system.' By organizing industrially, we are forming the structure of the new society within the shell of the old."
Held: that there being no charge or evidence that the organization advocated any crime, violence, or other unlawful acts or methods as a means of effecting industrial or political changes or revolution, thus applied, the statute is a violation of the Due Process Clause of the Fourteenth Amendment. P. 274 U. S. 386.
Error to a judgment of the Supreme Court of Kansas which affirmed a conviction of Fiske under the Kansas Criminal Syndicalism Act.
State, 117 Kan. 69, 230 P. 88; and this writ of error was allowed by the Chief Justice of that court.
The only substantial Federal question presented to and decided by the State court, and which may therefore be reexamined by this Court, is whether the Syndicalism Act, as applied in this case, is repugnant to the due process clause of the Fourteenth Amendment.
"Section 1. 'Criminal syndicalism' is hereby defined to be the doctrine which advocates crime, physical violence, arson, destruction of property, sabotage, or other unlawful acts or methods, as a means of accomplishing or effecting industrial or political ends, or as a means of effecting industrial or political revolution, or for profit. . . ."
"Sec. 3. Any person who, by word of mouth, or writing, advocates, affirmatively suggests or teaches the duty, necessity, propriety or expediency of crime, criminal syndicalism, or sabotage . . . is guilty of a felony. . . ."
"by word of mouth and by publicly displaying and circulating certain books and pamphlets and written and printed matter, advocate, affirmatively suggest and teach the duty, necessity, propriety and expediency of crime, criminal syndicalism, and sabotage by . . . knowingly and feloniously persuading, inducing and securing"
"a branch of and component part of the Industrial Workers of the World organization, said defendant then and there knowing that said organization unlawfully teaches, advocates and affirmatively suggests:"
"Instead of the conservative motto, 'A fair day's wages for a fair day's work,' we must inscribe on our banner the revolutionary watchword, 'Abolition of the wage system.' By organizing industrially we are forming the structure of the new society within the shell of the old."
On the trial, the State offered no evidence as to the doctrines advocated, suggested or taught by the Industrial Workers of the World organization other than a copy of the preamble to the constitution of that organization containing the language set forth and quoted in the information. The defendant, who testified in his own behalf, stated that he was a member of that organization and understood what it taught; that, while it taught the matters set forth in this preamble, it did not teach or suggest that it would obtain industrial control in any criminal way or unlawful manner, but in a peaceful manner; that he did not believe in criminal syndicalism or sabotage, and had not at any time advocated, suggested or taught the duty, necessity, propriety and expediency of crime, criminal syndicalism or sabotage, and did not know that they were advocated, taught or suggested by the organization; and that, in taking the applications for membership in the organization, which contained the preamble to the Constitution, he had explained the principles of the organization so far as he knew them by letting the applicants read this preamble.
of the World was an organization that taught criminal syndicalism as defined by the Syndicalism Act.
"court erred in refusing to quash the information, in overruling the demurrer to the evidence, and in overruling the motion in arrest of judgment, because the information and the cause of action attempted to be proved were based upon"
the Kansas Syndicalism Act, "which, insofar as it sustains this prosecution, is in violation . . . of the Constitution of the United States, and especially of the Fourteenth Amendment," including the due process clause thereof.
teach or even affirmatively suggest physical violence as a means of accomplishing industrial or political ends. It is open to that interpretation, and is capable of use to convey that meaning. . . . The jury were not required to accept the defendant's testimony as a candid and accurate statement. There was room for them to find, as their verdict shows they did, that the equivocal language of the preamble and of the defendant in explaining it to his prospects was employed to convey and did convey the sinister meaning attributed to it by the state. A final contention is that the statute . . . is obnoxious to the due process of law clause of the Fourteenth Amendment to the Federal Constitution. Statutes penalizing the advocacy of violence in bringing about governmental changes do not violate constitutional guarantees of freedom of speech."
A decision of a State court applying and enforcing a State statute of general scope against a particular transaction as to which there was a distinct and timely insistence that, if so applied, the statute was void under the Federal Constitution, necessarily affirms the validity of the statute as so applied, and the judgment is therefore reviewable by writ of error under section 237 of the Judicial Code. Dahnke-Walker Co. v. Bondurant, 257 U. S. 282, 257 U. S. 288. The inquiry then is whether the statute is constitutional as applied and enforced in respect of the situation presented. Ward & Gow v. Krinsky, 259 U. S. 503, 259 U. S. 510; Cudahy Co. v. Parramore, 263 U. S. 418, 263 U. S. 422. And see St. Louis &c. Railway v. Wynne, 224 U. S. 354, 224 U. S. 359.
question, to analyze the facts. Northern Pacific Railway v. North Dakota, 236 U. S. 585, 236 U. S. 593; Aetna Life Ins. Co. v. Dunken, 266 U. S. 389, 266 U. S. 394, and cases cited.
by violence or other related unlawful acts or methods. Compare Whitney v. California and Burns v. United States, ante, pp. 274 U. S. 357, 274 U. S. 328.
The result is that the Syndicalism Act has been applied in this case to sustain the conviction of the defendant without any charge or evidence that the organization in which he secured members advocated any crime, violence or other unlawful acts or methods as a means of effecting industrial or political changes or revolution. Thus applied, the Act is an arbitrary and unreasonable exercise of the police power of the State, unwarrantably infringing the liberty of the defendant in violation of the due process clause of the Fourteenth Amendment. The judgment is accordingly reversed, and the case is remanded for further proceedings not inconsistent with this opinion.


text:
P. Bandopadhya Ors. Vs. Union of India Ors.
1. The present Civil Appeal arises out of S.L.P. (C) No. 4652 of 2018 wherein the impugned Judgment and Order dated January 13, 2016 passed by the Bombay High Court in Writ Petition No. 2704 of 2005 has been challenged.
2.1. The Appellants were erstwhile employees in the Overseas Communications Service [“OCS”], a Department of the Government of India. On April 1, 1986 the OCS was converted into a Government Company known as the Videsh Sanchar Nigam Limited [“VSNL”]. Initially, all employees of the erstwhile OCS were transferred en masse to Respondent No. 4 – VSNL (now known as Tata Communications Limited), where they worked on deputation from April 1, 1986 to January 1, 1990.
(a) The permanent Government servants shall have an option to retain the pensionary benefit available to them under the Government rules or be governed by the rules of the Public Sector Undertaking/Autonomous Body. This option shall also be available to the quasi permanent and temporary employees after they have been confirmed in the Public Sector Undertaking/Autonomous Body.
(b) The Government servants who opt to be governed by the pensionary benefits available under the Government, shall at the time of their retirement, be entitled to pension, etc., in accordance with the Central Government rules in force at that time.
2.3. In pursuance of the Office Memorandum, Notice dated December 11, 1989 was issued by Respondent No. 4 – VSNL giving the erstwhile employees of OCS the option to either be absorbed in the regular service of VSNL; or, be transferred to the Surplus Staff Cell of the Central Government for employment against possible vacancies available in other Government offices. The Appellants voluntarily exercised the option to be absorbed into the regular service of VSNL with effect from January 2, 1990.
“I. Exercise of option in favour of retention of pensionary benefit under Central Government rules.
2.5. The Appellants opted to retain pensionary benefits under the rules of the Central Government by exercising their option in pursuance of the Staff Notice dated February 21, 2009.
2.6. Respondent No. 4 – VSNL vide Letters dated May 22, 2003 and June 29, 2004, sought a clarification from Respondent No. 3 – Ministry of Communications and Information Technology, Department of Telecommunications [“DOT”] as to whether the Appellants – P. Bandhopadhya, I.P. Singh and G. Palaniappan could retain the pensionary benefits in spite of having less than 10 years of service as on January 2, 1990.
2.7. In response, the DOT vide Letter dated October 13, 2004 requested VSNL to settle the cases of the Appellants in accordance with Clause (b) of the Office Memorandum.
2.8. Accordingly, by Letter dated November 30, 2004, Respondent No. 4 – VSNL informed Respondent No. 2 – Department of Pension and Pension Welfare, Government of India to settle the cases of the Appellants in accordance with Clause (b) of the Office Memorandum.
2.9. In supersession of the Letter dated October 13, 2004, the Department of Pension and Pension Welfare, Government of India, vide Letter dated March 24, 2005 informed Respondent No. 4 – VSNL that the payment of Pension to the Appellants would be settled in terms of the Office Memorandum. This was reconfirmed by Respondent No. 3 – DOT vide Letter dated May 30, 2005.
2.10.Accordingly, Respondent No. 2 – Department of Pension and Pension Welfare, Government of India informed the Appellants that their pension would be settled in terms of the Office Memorandum.
2.11.On June 27, 2005 the Appellants were informed by Respondent No. 4 – VSNL that they would not be eligible to receive Government Pension. They would, however, be eligible to receive benefits under Clause (c) of the Office Memorandum i.e. an amount equal to the Provident Fund contribution for the period of their service under the Government up to the date of permanent absorption in the Public Sector Undertaking/Autonomous Body with 6% Simple Interest as opening balance in their CPF account with the Public Sector Undertaking/Autonomous Body.
2.12.Aggrieved by this decision, the Appellants made a representation before the Respondents seeking for a declaration that their cases be governed by Clause (b), and not Clause (c) of the Office Memorandum.
directions to treat the cases of the Appellants as being governed by Clause (b), and not Clause (c) of the Office Memorandum. In effect, the Appellants were seeking directions that their cases be considered eligible for grant of pension by the Government of India.
2.14.A Division Bench of the Bombay High Court dismissed Writ Petition No. 2704 of 2005 on April 26, 2006 after holding that the case of the Appellants was covered by an earlier decision of a Division Bench in S.V. Vasaikar Ors. v. Union of India Ors. [2003 (2) Mh.L.J. 691 : 2003 (4) Bom CR 79]. The Judgment dated April 26, 2006 passed by the Division Bench was challenged by the Appellants before this Court by way of S.L.P. (C) No. 15862 of 2006, which was later renumbered as Civil Appeal No. 3059 of 2007. This Court vide Order dated July 14, 2011 set aside the Judgment dated April 26, 2006 passed by the Division Bench of the Bombay High Court in view of the submission by the Appellants that the decision in S.V. Vasaikar Ors. v. Union of India Ors. [2003 (2) Mh.L.J. 691 : 2003 (4) Bom CR 79] was not applicable to the facts of 8 their case. The matter was remanded to the High Court for fresh consideration on merits.
2.15.After remand, the Bombay High Court reheard the matter, and passed a detailed judgment dismissing Writ Petition No. 2704 of 2005, and held that the Appellants were not eligible to avail pensionary benefits under the Government of India, since they had served for less than 10 years on the date of their absorption into VSNL. The High Court held that on a cumulative reading of Clauses (a), (b), and (c) of the Office Memorandum makes it clear that only permanent Government servants who have served for more than 10 years would have the option of getting pensionary benefits after their absorption in Public Sector Undertakings.
The case of the Appellants would be governed by Clause (c) of the Office Memorandum which clearly carved out the category of employees who had not completed 10 years of service. It was held that a new category which is either contrary to Clause (c), or renders the import of Clauses (a) 9 and (b) nugatory, cannot be created by way of judicial interpretation. The High Court held that the matter was squarely covered by the earlier decision of a Division Bench of the Bombay High Court in S.V. Vasaikar Ors. v. Union of India Ors. [2003 (2) Mh. L.J. 691 : 2003 (4) Bom CR 79].
3. Aggrieved by the Judgment and Order dated January 13, 2016 passed by the Division Bench, the Appellants filed the present Special Leave Petition. Applications for Impleadment have been filed by 48 persons who claim to be similarly situated as the Appellants.
4. Mr. Sanjay Kumar Mishra, Advocate appeared on behalf of the Appellants, and sought the setting aside of the impugned Judgment and Order dated January 13, 2016 passed by the Division Bench. Mr. Vikramjit Banerjee, learned Additional Solicitor General, appeared on behalf of Respondent Nos. 1 – 3, and Mr. Maninder Singh, learned Senior Advocate, appeared on behalf of Respondent No. 4 – VSNL.
5. We have perused the record with the able assistance of the counsel for the parties. The issue which arises for our consideration in the 10 present Civil Appeal is whether the Bombay High Court was justified in holding that the case of the Appellants was covered by the earlier decision in S.V. Vasaikar Ors. v. Union of India Ors. [2003 (2) Mh. L.J. 691 : 2003 (4) Bom CR 79], and whether they are entitled to receive pensionary benefits under the Central Government.
6.1. Mr. Sanjay Kumar Mishra, Advocate, submitted that the Division Bench of the Bombay High Court had committed an error by denying pensionary benefits to the Appellants.
6.2. It was submitted that Clause (b) of the Office Memorandum would govern the case of the Appellants, since they had opted to avail the pensionary benefits available under the Central Government at the time of their retirement under Clause (a) of the Office Memorandum.
6.3. It was further submitted that the Office Memorandum should be interpreted in isolation on the basis of its plain text, and the Form attached with the Staff Notice dated February 21, 1990 should not condition the said interpretation.
6.4. The Division Bench had erroneously interpreted the Office Memorandum, since Clause (a) is the controlling provision, and Clause (c) in no way dilutes what is provided by Clause (a). The Appellants challenged the interpretation of the Office Memorandum given by a coordinate bench in S.V. Vasaikar Ors. v. Union of India Ors. [2003 (2) Mh. L.J. 691 : 2003 (4) Bom CR 79]. According to Mr. Mishra, Clauses (c) and (d) of the Office Memorandum provides only the mode of payment of retiral benefits with respect to two different categories of employees – viz. employees with less than 10 years of qualifying service, and employees with more than 10 years of qualifying service.
7.1. The counsel for the Respondents inter alia submitted that the issue in the present case was squarely covered by the earlier judgment of the Bombay High Court in S.V. Vasaikar Ors. v. Union of India Ors. [2003 (2) Mh. L.J. 691 : 2003 (4) Bom CR 79]. The Appellants through their Federation had appeared in this case, and had not challenged this judgment before this Court. As a consequence, this judgment attained finality. It was therefore not open to the Appellants to relitigate the same issue in the present Writ Petition. The Division Bench rightly followed the said decision while dismissing Writ Petition No. 2704 of 2005 by way of the impugned Judgment and Order dated January 13, 2016.
7.2. It was submitted on behalf of VSNL that the Office Memorandum categorises employees into two classes – first, those who have completed 10 years of qualifying service; and second, those who do not have 10 years of qualifying service. Under the Office Memorandum, while the first class of employees is entitled to pension under the Government of India, the second class is entitled to a certain sum of Provident Fund contribution.
7.3. The Appellants admittedly had less than 10 years of qualifying service. They had voluntarily exercised their option of getting absorbed in the regular service of VSNL. As a consequence, this resulted in the severance of their previous service with the Central Government, and they were deemed to have retired from Government service on January 2, 1990 i.e. the date of their absorption with VSNL in accordance with Rule 37(1) of the Central Civil Services (Pension) Rules, 1972 [“CCS (Pension) Rules, 1972]. The Appellants having taken a conscious decision to opt for absorption in VSNL, knowing fully well that they had not completed 10 years of qualifying service with the Central Government, were not entitled to receive pensionary benefits as per Rule 49 of the CCS (Pension) Rules, 1972.
7.4. It was submitted that the Office Memorandum was virtually in conformity with Rule 49 r.w. Rule 37 of the CCS (Pension) Rules, 1972. In any case, the Office Memorandum cannot be interpreted in isolation, and has to be construed in consonance with the CCS (Pension) Rules, 1972. The requirement of having completed a minimum qualifying service of 10 years for entitlement to pensionary benefits under Rule 49 of the CCS (Service) Rules, 1972 would apply to Clause (a) of the Office Memorandum. The Appellants had admittedly less than the minimum qualifying service of 10 years, and were deemed to have retired from Government service, and were not entitled to pensionary benefits under the Central Government. On absorption with VSNL, they would not be entitled to pension.
“37. Pension on absorption in or under a corporation, company or body (1) A Government servant who has been permitted to be absorbed in a service or post in or under a Corporation or Company wholly or substantially owned or controlled by the Central Government or a State Government or in or under a Body controlled or financed by the Central Government or a State Government, shall be deemed to have retired from service from the date of such absorption and subject to subrule (3) he shall be eligible to receive retirement benefits if any, from such date as may be determined, in accordance with the orders of the Central Government applicable to him.
(2) … (3) Where there is pension scheme in a body controlled or financed by the Central Government in which a Government servant is absorbed, he shall be entitled to exercise option either to count the service rendered under the Central Government in that body for pension or to receive pro rata retirement benefits for the service rendered under the Central Government in accordance with the orders issued by the Central Government.
8.2. It is the admitted position that the Appellants had not completed 10 years of service on the date of their absorption into VSNL, i.e. when they were deemed to have retired from the service of the Central Government. To receive pensionary benefits from the Government, a Government servant is required to put in a minimum ‘qualifying service’ as defined by Rule 3(q) of the CCS (Pension) Rules, 1972. According to Rule 3(q), ‘qualifying service’ means the service rendered while on duty or 16 otherwise which shall be taken into account for the purpose of Pensions and Gratuities admissible under the CCS (Pension) Rules, 1972.
A conjoint reading of the statutory rules, i.e. Rule 37 with Rule 49 of the CCS (Pension) Rules, 1972, would make it abundantly clear that the Appellants were not entitled to pensionary benefits since admittedly they did not have the minimum qualifying service of 10 years, to make their service pensionable with the Central Government. On absorption in VSNL on January 2, 1990 there was a severance of their service with the Central Government. The Appellants would be entitled to the retiral benefits under VSNL. After exercising the option to be absorbed in VSNL, the Appellants are now estopped from seeking pensionary benefits from the Central Government.
8.4. The Office Memorandum dated July 5, 1989 was issued by the Department of Pension and Pension Welfare, Government of India to settle the pensionary terms and conditions applicable in cases of en masse transfer of employees on the conversion of a Government Department into a Central Public Sector Undertaking/Autonomous Body.
(A) Clause (a) of the Office Memorandum provided an option to Government servants (permanent, quasipermanent and temporary) to either retain the pensionary benefits available to them under the Government rules or be governed by the rules of the Public Sector Undertaking/Autonomous Body. Under Clause (b), Government servants who opt to retain pensionary benefits were entitled to receive pension at the time of their retirement “in accordance with Central Government rules in force at that time”.
(B) A conjoint reading of Clauses (a) and (b) would indicate that the option of retaining pensionary benefits was available only to those Government servants who were, in the first place, entitled to receive pension at the time of 19 their retirement. This is evident from Clause (a) which provides the option to “retain” pensionary benefits available under the relevant Government rules. Clauses (a) and (b) presuppose that the Government servants who opt to retain pensionary benefits, should be entitled to receive pensionary benefits under the Central Government rules, in the first place.
(C) Rule 37 read with Rule 49 of the CCS (Pension) Rules, 1972 indicates that the Appellants were not entitled to receive Pension under the CCS (Pension) Rules, 1972, since they had not completed 10 years of qualifying service. There was, therefore, no question of the Appellants availing of the option of ‘retaining’ the benefits under Clause (a).
(D) The Division Bench has rightly held that Clause (b) of the Office Memorandum cannot be read in isolation, and is required to be read in conjunction with Clause (a). The entitlement to Pension under Clause (b) is qualified by the phrase “in accordance with the Central Government rules in force at that time”.
(E) Further, Paragraph I (1) (ii) of the document titled “Clarificatory Information to Facilitate Exercise of Option” clearly stated that the eligibility to retain pensionary benefits under the Central Government was subject to the condition of putting in a minimum of 10 years as qualifying service. The Appellants were specifically informed of this clarification at the time of exercising their option that their eligibility for pensionary benefits under the CCS (Pension) Rules, 1972 was dependant on their fulfilling the minimum eligibility requirement of 10 years qualifying service on the day their retirement.
8.5. We find great force in the submissions made by Mr. Maninder Singh, Senior Advocate appearing for VSNL, and the learned Additional Solicitor General, that the case is squarely covered by the earlier decision of a Division Bench of the Bombay High Court in S.V. Vasaikar Ors. v. Union of India Ors. [2003 (2) Mh. L.J. 691 : 2003 (4) Bom CR 79].
“26. Regarding the contention that employees, who had not completed ten years, were not allowed to exercise the option with regard to pensionary benefits, it may be stated that even when they were in the Government service, when VSNL was a Government Company, they were not entitled to such benefits. Reading the memorandum also, it becomes abundantly clear that the persons, who had not completed ten years of service with the Government, were not entitled to pensionary benefits.
The aforesaid findings of the Division Bench squarely cover the present case of the Appellants.
“35…It is well established that the principles of res judicata are applicable to writ petitions. The relief prayed for on behalf of the petitioner in the present case is the same as he would have, in the event of his success, obtained in the earlier writ petition before the High Court. The petitioner in reply contended that since the special leave petition before this Court was dismissed in limine without giving any reason, the order cannot be relied upon for a plea of res judicata. The answer is that it is not the order of this Court dismissing the special leave petition which is being relied upon; the plea of res judicata has been pressed on the basis of the High Court’s judgment which became final after the dismissal of the special leave petition.
Albeit the decision of the Constitution Bench was in the context of a Writ Petition filed under Article 32, it would apply with greater force to bar a Writ Petition filed under Article 226, like the one filed by the present Appellants, by the operation of the principle of res judicata.
8.8. The Appellants were not entitled to receive pensionary benefits either under the CCS (Pension) Rules, 1972 or under Clauses (a) and (b) of the Office Memorandum. The case of the Appellants being Government servants prior to their absorption in VSNL, with less than 10 years of qualifying service, would be squarely covered by Clause (c) of the Office Memorandum. Under Clause (c), they would be entitled to receive an amount equal to the Provident Fund contribution for the period of their service under the Government, upto the date of their permanent absorption along with Simple Interest at 6% per annum as the opening balance in their CPF account with the Public Sector Undertaking/Autonomous Body.
9. In view of the aforesaid findings, the present Civil Appeal is dismissed. The impugned Judgment and Order dated January 13, 2016 passed by the Bombay High Court in Writ Petition No. 2704 of 2005 is affirmed.
10. The Applications for Impleadment filed in the Appeal are disposed of in terms of the present judgment. Any other pending I.A.s are disposed of.
1 Union of India Anr. v. Bashirbhai R. Khiliji, (2007) 6 SCC 16 : AIR 2007 SC 1935.
2 (1990) 2 SCC 715 : AIR 1990 SC 1607.
3 (1962) 1 SCR 574 : AIR 1961 SC 1457.

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So in October of 2014 I wrote about the upcoming TLS (transport layer security) enhancements that IBM was planning to bring to IBM Domino as part of the industry wide panic about the POODLE attack which I still consider mainly theoretical. I was a bit critical towards IBM as they chose to patch their seriously lacking SSL v. 1.3 implementation and implement TLS v. 1.0 on top of IBM Domino v. 9.0.x (IBM Domino, POODLE, SHA-1 and why it’s also sad when IBM decides to update the security stack). The reason I was critical was that I thought that you either take security serious and bring the stack to the front of the line (TLS v. 1.2, v. 1.3 in draft) or get out of the game.
Since then I have been pleasantly surprised to hear about the initiatives IBM has going on. At IBM ConnectED 2015 I attended a very nice session by David Kern from IBM and Daniel Nashed (IBM Business Partner) on the TLS and security improvements planned for IBM Domino. Among others was massive cipher suite updates incl. upcoming support for Diffie-Hellman and perfect-forward-secrecy. Cool stuff! Yesterday I was very pleased to see that IBM now has announced the support for TLS v. 1.2 coming in Q1/Q2 of 2015 (the technote is a bit confusing as to when it will be out).
So all appears to be good and IBM is moving in the right direction with this. Very nice.
My stance on the POODLE / SHA-2 issues with Domino is well known and I haven’t been holding anything back. And now – after a while – IBM is starting to release the promised tools to lay the foundation for SHA-2 signature support and TLS 1.0 support on IBM Domino. As part of my IBM Support Updates today I saw and entry called “Planned SHA-2 deliveries for IBM Domino 9.x“. This is a technote outlining how IBM is bringing TLS 1.0 and SHA-2 support. This is all well and good and great that IBM starts to deliver on its promises.
But that’s not all… And by far the most interesting thing to find in that technote.
Burried within this technote is a mention of a tool called kyrtool which replaces iKeyman as the way to work with the KYR keystore file used by IBM Domino. It’s a command line tool and allows for import of standard x509 certificates generated using OpenSSL or similar and produces a KYR and a STH (stash) file as the result. There is documentation about the tool in the wikis (Generating a keyring file with a self-signed SHA-2 cert using OpenSSL and kyrtool). As an added bonus the examples with OpenSSL is done on Dave Kerns paranoia Linux box (dskern@paranoia).
The release of this tool is very good news and cannot be overstated and in my eyes far overshines the support for TLS 1.0 and SHA-2 as it allows administrators to work with the KYR files on Windows versions newer than Windows XP. It ever supports win32, win64, linux32 and linux64. How do you like them apples?
Over the last few weeks the news hit about the PODDLE attack and the withdrawal of SHA-1 as an acceptable hash algorithm by Google Chrome. This is turn has prompted IBM to update the security stack in IBM Domino for all web protocols incl HTTP, LDAP and SMTP. While this is VERY good news and it will be very welcomed that we do no longer have to resort to fronting IBM Domino by IBM HTTP Server or Apache to get adequate TLS protocol support I find the whole situation a bit sad. In full disclosure I have to say that I get most of my security updates these days from the Security Now! podcast on the TWIT network and the discussion on both POODLE and the SHA-1 debacle as opened my eyes. The sad part about these updates to IBM Domino is that it has taken a theoretical attack on SSL v. 3 (POODLE) and a premature hash algorithm withdrawal by a single browser vendor (SHA-1 and Google) to have IBM update the stack. To be fair Microsoft is also removing SHA-1 support from their security stack in their OS’es but from 2017 giving customers ample time to fix it.
In other words if these attacks hadn’t come out IBM would have left IBM Domino customers with ancient protocols and keystore formats – remember it takes Windows XP to run an iKeyman old enough to edit the .key files used in Domino.
Besides being good marketing and blowing some life into the dying embers of IBM Domino it’s almost a sad move when it’s done so late. And then IBM doesn’t even take it seriously enough to go all the way. Instead they outlines their “plan to deliver SHA-2 support for Domino 9.x” and promises a fix to bring TLS 1.0 to IBM Domino. Version 1.0 – seriously?! TLS is in version 1.2 at present and the draft for v. 1.3 is out. Now I know that implementing TLS for SMTP is much different from doing so for HTTP but security cannot be done half heartedly so if you want to make it a priority do that. Do not stop short and plug a hole by not going all the way. In all honesty I would rather have IBM discontinue SSL/TLS all together on Domino than doing this. I know it’s sad but it’s how I feel about it right now.
For a very nice discussion of the PODDLE attack, and why it’s a theoretical attack, do listen to Security Now! episode 478 from 33:22 minutes in.
Came across this technote outlining how to configure the worker threads for the different internet protocols on IBM Domino.
Yesterday night I upgraded two of our internal Domino servers to Domino 9.0.1 incl. Traveler and the new Social Edition components. The entire process for two servers took just about 15 minutes over remote desktop and VPN incl. the restart of the server which strictly speaking was superfluous.
Pretty impressive but hey it’s Domino!!
The upgrade was from Domino 9.0.0 and what a difference a point release makes. Not for the Traveler server but for the Social Edition server that runs the embedded experiences (EE’s) for us (mainly from IBM Connections). Before the upgrade we had some issues with EE’s not loading incl. timeouts when users connected from home over VPN. After the upgrade these timeouts are gone and the performance is much much better both remotely over VPN and in the office. Previously we had a noticeable delay for the remote rendering of the EE’s but now it’s just there when an email opens up.
So if you’re using EE’s and haven’t yet upgraded to 9.0.1 I would highly recommend you get on it.


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ACCENT COMMERCIAL FURNITURE, INC., Respondent, v. P. SCHNEIDER & ASSOCIATES, PLLC, Appellant.
Cerio Law Offices, Syracuse (Thomas J. Cerio of counsel), for appellant. Roemer, Wallens & Mineaux, LLP, Albany (Matthew J. Kelly of counsel), for respondent.
Before: STEIN, J.P., McCARTHY, SPAIN and EGAN JR., JJ.
Appeal from an order of the Supreme Court (McNamara, J.), entered September 27, 2012 in Albany County, which partially granted plaintiff's motion for summary judgment.
In September 2010, the parties entered into an oral contract for plaintiff to deliver and install furniture and wall panels in defendant's new office. Although defendant desired to have the installation completed in October 2010, the parties discovered when the furniture arrived that the manufacturer had used the incorrect fabric on the panels. The correct panels arrived in late December 2010 and were apparently installed in early January 2011. Plaintiff sent defendant an invoice dated January 4, 2011. Defendant had previously made a down payment, but did not make any payments after receiving the invoice. In January 2012, plaintiff commenced this action seeking to collect the remainder of its bill. Defendant counterclaimed, seeking damages for plaintiff's alleged breach of contract due to the late delivery. Plaintiff moved for summary judgment on its claims and to dismiss defendant's counterclaim. Supreme Court granted plaintiff summary judgment on its breach of contract cause of action and dismissed the part of defendant's counterclaim seeking two months rent. Defendant appeals.
Defendant also alleged that plaintiff's breach of the contract caused defendant damages related to installing cables and wires. Supreme Court denied the part of plaintiff's summary judgment motion seeking dismissal of this portion of the counterclaim, which is not at issue on appeal.
Supreme Court did not err in granting plaintiff summary judgment on its breach of contract cause of action. Because the transaction predominantly involved the sale of goods, the parties' rights and remedies are governed by UCC article 2 ( see Sears, Roebuck & Co. v. Galloway, 195 A.D.2d 825, 826, 600 N.Y.S.2d 773  ). The parties' oral contract is enforceable because both parties acknowledge the existence of that contract ( seeUCC 2–201 [b] ). The UCC provides that acceptance of goods takes place, among other ways, when the buyer fails to reject them after having a reasonable opportunity to inspect them ( seeUCC 2–606[b]; Sears, Roebuck & Co. v. Galloway, 195 A.D.2d at 826, 600 N.Y.S.2d 773;B. Milligan Contr. v. Mancini Assoc., 174 A.D.2d 136, 138, 578 N.Y.S.2d 931  ). A buyer must pay for accepted goods at the contract rate ( seeUCC 2–607 ), but may eliminate or diminish the amount claimed by a seller by asserting a valid counterclaim for breach of the sales agreement ( see Created Gemstones v. Union Carbide Corp., 47 N.Y.2d 250, 255, 417 N.Y.S.2d 905, 391 N.E.2d 987 ;Flick Lbr. Co. v. Breton Indus., 223 A.D.2d 779, 780, 636 N.Y.S.2d 169 ;B. Milligan Contr. v. Mancini Assoc., 174 A.D.2d at 138, 578 N.Y.S.2d 931). Where a seller has allegedly breached the contract, a buyer who has accepted the goods “must withina reasonable time after he [or she] discovers or should have discovered any breach notify the seller of breach or be barred from any remedy” (UCC 2–607[a]; see Sears, Roebuck & Co. v. Galloway, 195 A.D.2d at 827, 600 N.Y.S.2d 773).
Plaintiff met its burden on the summary judgment motion by submitting proof that it delivered and installed the furniture, defendant accepted the furniture by retaining it without attempting to return it, and defendant only paid the $13,250 down payment on the $44,330.21 contract ( seeUCC 2–606 ; Sears, Roebuck & Co. v. Galloway, 195 A.D.2d at 827, 600 N.Y.S.2d 773;Maggio Importato, Inc. v. Cimitron Inc., 189 A.D.2d 654, 654, 592 N.Y.S.2d 325 ,lv. denied82 N.Y.2d 652, 601 N.Y.S.2d 582, 619 N.E.2d 660 ;B. Milligan Contr. v. Mancini Assoc., 174 A.D.2d at 138, 578 N.Y.S.2d 931). Defendant does not dispute the amount that it has paid, that the furniture was delivered and that it has not been returned. Defendant only argues that it is entitled to an offset for rent and other costs allegedly incurred due to plaintiff's late delivery, which allegedly prevented defendant from occupying the new office for several months ( seeUCC 2–714). We will assume, for purposes of this motion and giving defendant the most favorable view of the evidence, that delivery before November 2010 was a material term of the contract. Defendant contends that, during a November 1, 2010 meeting, it provided sufficient notice to plaintiff regarding the breach of this condition. Even if this oral communication to plaintiff's non-managerial representatives constituted proper and timely notice of a breach of a material term of the contract, defendant could only recover causally-related consequential damages “which could not reasonably be prevented by cover or otherwise” (UCC 2–715[a] ).
Defendant does not address how it “attempt[ed] to minimize [its] damages in good faith, either by cover or otherwise” (UCC 2–715, Comment 2). Although defendant's managing member averred that the “delay rendered [d]efendant's office space unusable,” she did not elaborate or explain how it was unusable. Plaintiff's chief executive officer averred that plaintiff offered to install the furniture and panels with the incorrect fabric while waiting for the correct panels to arrive, at which time plaintiff would replace the fabric outside of defendant's business hours, but defendant declined this offer. In its response to the motion, defendant failed to assert that it made any effort to cover or minimize its damages, and did not address plaintiff's assertion that defendant declined plaintiff's offer to install furniture and panels that were fully functional—even if made with the incorrect fabric—in the interim, leaving no evidence that defendant's damages could not have been prevented ( seeUCC 2–715[a]; see also V. Zappala & Co. v. Pyramid Co. of Glens Falls, 81 A.D.2d 983, 984, 439 N.Y.S.2d 765 ,lv. denied55 N.Y.2d 603, 447 N.Y.S.2d 1025, 431 N.E.2d 643  ). Accordingly, Supreme Court properly granted plaintiff summary judgment on its breach of contract cause of action and dismissed the portion of the counterclaim seeking two months rent.
STEIN, J.P., SPAIN and EGAN JR., JJ., concur.

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To provide policy-relevant analysis and guidance to governments and intergovernmental organizations, decision-support material to the commercial sector (energy service companies, investors and others), and analysis relevant to academic institutions.
Reducing the adverse and ancillary risks associated with energy systems.
Global concerns have steadily increased about climate change, energy security and energy poverty. Decision makers do not have access to reliable, comprehensive and integrated information on these major energy issues. While other authoritative publications on different aspects of energy are available, they have not adequately addressed energy challenges in an integrated manner. Given the inter-linkages between energy and many major economic, commercial and social activities, a lack of integrated and comprehensive decision-support material on energy increases the likelihood of sub-optimal policy and investment choices that will increase the exposure of critical social and economic development activities to the impacts of among others: energy supply disruptions; continuing energy disparities and poverty; worsening of environmental and human health; and insufficient technological development.
Given this need, the International Institute for Applied Systems Analysis (IIASA), in cooperation with the United Nations Development Programme (UNDP), the United Nationsl Department of Economic and Social Affairs (UNDESA) and the World Energy Council (WEC), identified the need for more integrated analysis that could account for the full range of activities, opportunities and threats linked with energy systems, including region-specific challenges. Thus, this integrative approach represents a critical and unique element of the Global Energy Assessment, that provides the stronger interdisciplinary policy orientation required for better decision making and capacity-building.
This approach allows the GEA to provide a basis for policy formulation that recognizes the main issues and competing requirements across all areas of economic and social development, environmental protection an security; with a sufficient level of regional focus and detail to provide relevant support for a wide range of decision-makers.
Banerjee, R., Y. Cong, D. Gielen, G. Jannuzzi, F. Maréchal, A. T. McKane, M. A. Rosen, D. van Es and E. Worrell, 2012: Chapter 8 - Energy End Use: Industry. In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 513-574.
Benson, S. M., K. Bennaceur, P. Cook, J. Davison, H. de Coninck, K. Farhat, A. Ramirez, D. Simbeck, T. Surles, P. Verma and I. Wright, 2012: Chapter 13 - Carbon Capture and Storage. In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 993-1068.
Bouille, D. H., H. Altomonte, D. F. Barnes, T. Dafrallah, H. Gao, H. Pistonesi, R. M. Shrestha and E. Visagie, 2012: Chapter 23 - Policies for Energy Access. In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 1603-1664.
Cherp, A., A. Adenikinju, A. Goldthau, F. Hernandez, L. Hughes, J. Jansen, J. Jewell, M. Olshanskaya, R. Soares de Oliveira, B. Sovacool and S. Vakulenko, 2012: Chapter 5 - Energy and Security. In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 325-384.
Coelho, S. T., O. Agbenyega, A. Agostini, K.-H. Erb, H. Haberl, M. Hoogwijk, R. Lal, O. Lucon, O. Masera and J. R. Moreira, 2012: Chapter 20 - Land and Water: Linkages to Bioenergy. In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 1459-1526.
Emberson, L., K. He, J. Rockström, M. Amann, J. Barron, R. Corell, S. Feresu, R. Haeuber, K. Hicks, F. X. Johnson, A. Karlqvist, Z. Klimont, I. Mylvakanam, W. W. Song, H. Vallack and Z. Qiang, 2012: Chapter 3 - Energy and Environment. In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 191-254.
Grubler, A., F. Aguayo, K. Gallagher, M. Hekkert, K. Jiang, L. Mytelka, L. Neij, G. Nemet and C. Wilson, 2012: Chapter 24 - Policies for the Energy Technology Innovation System (ETIS). In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 1665-1744.
Grubler, A., T. B. Johansson, L. Mundaca, N. Nakicenovic, S. Pachauri, K. Riahi, H.-H. Rogner and L. Strupeit, 2012: Chapter 1 - Energy Primer. In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 99-150.
Grubler, A., X. Bai, T. Buettner, S. Dhakal, D. J. Fisk, T. Ichinose, J. E. Keirstead, G. Sammer, D. Satterthwaite, N. B. Schulz, N. Shah, J. Steinberger and H. Weisz, 2012: Chapter 18 - Urban Energy Systems. In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 1307-1400.
Jaccard, M., L. Agbenmabiese, C. Azar, A. de Oliveira, C. Fischer, B. Fisher, A. Hughes, M. Ohadi, Y. Kenji and X. Zhang, 2012: Chapter 22 - Policies for Energy System Transformations: Objectives and Instruments. In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 1549-1602.
Kahn Ribeiro, S., M. J. Figueroa, F. Creutzig, C. Dubeux, J. Hupe and S. Kobayashi, 2012: Chapter 9 - Energy End-Use: Transport. In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 575-648.
Karekezi, S., S. McDade, B. Boardman and J. Kimani, 2012: Chapter 2 - Energy, Poverty and Development. In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 151-190.
Larson, E. D., Z. Li and R. H. Williams, 2012: Chapter 12 - Fossil Energy. In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 901-992.
Mytelka, L., F. Aguayo, G. Boyle, S. Breukers, G. de Scheemaker, I. Abdel Gelil, R. Kemp, J. Monkelbaan, C. Rossini, J. Watson and R. Wolson, 2012: Chapter 25 - Policies for Capacity Development. In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 1745-1802.
Pachauri, S., A. Brew-Hammond, D. F. Barnes, D. H. Bouille, S. Gitonga, V. Modi, G. Prasad, A. Rath and H. Zerrifi, 2012: Chapter 19 - Energy Access for Development. In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 1401-1458.
Riahi, K., F. Dentener, D. Gielen, A. Grubler, J. Jewell, Z. Klimont, V. Krey, D. McCollum, S. Pachauri, S. Rao, B. van Ruijven, D. P. van Vuuren and C. Wilson, 2012: Chapter 17 - Energy Pathways for Sustainable Development. In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 1203-1306.
Rogner, H.-H., R. F. Aguilera, R. Bertani, S. C. Bhattacharya, M. B. Dusseault, L. Gagnon, H. Haberl, M. Hoogwijk, A. Johnson, M. L. Rogner, H. Wagner and V. Yakushev, 2012: Chapter 7 - Energy Resources and Potentials. In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 423-512.
Roy, J., A.-M. Dowd, A. Muller, S. Pal and N. Prata, 2012: Chapter 21 - Lifestyles, Well-Being and Energy. In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 1527-1548.
Schock, R. N., R. Sims, S. Bull, H. Larsen, V. Likhachev, K. Nagano, H. Nilsson, S. Vuori, K. Yeager and L. Zhou, 2012: Chapter 15 - Energy Supply Systems. In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 1131-1172.
Smith, K. R., K. Balakrishnan, C. Butler, Z. Chafe, I. Fairlie, P. Kinney, T. Kjellstrom, D. L. Mauzerall, T. McKone, A. McMichael and M. Scheider, 2012: Chapter 4 - Energy and Health. In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 255-324.
Turkenburg, W. C., D. J. Arent, R. Bertani, A. Faaij, M. Hand, W. Krewitt, E. D. Larson, J. Lund, M. Mehos, T. Merrigan, C. Mitchell, J. R. Moreira, W. Sinke, V. Sonntag-O’Brien, B. Thresher, W. van Sark, E. Usher and E. Usher, 2012: Chapter 11 - Renewable Energy. In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 761-900.
Ürge-Vorsatz, D., N. Eyre, P. Graham, D. Harvey, E. Hertwich, Y. Jiang, C. Kornevall, M. Majumdar, J. E. McMahon, S. Mirasgedis, S. Murakami and A. Novikova, 2012: Chapter 10 - Energy End-Use: Building. In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 649-760.
von Hippel, F., M. Bunn, A. Diakov, M. Ding, R. Goldston, T. Katsuta, M. V. Ramana, T. Suzuki and Y. Suyuan, 2012: Chapter 14 - Nuclear Energy. In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 1069-1130.
Yeager, K., F. Dayo, B. Fisher, R. Fouquet, A. Gilau and H.-H. Rogner, 2012: Chapter 6 - Energy and Economy. In Global Energy Assessment - Toward a Sustainable Future, Cambridge University Press, Cambridge, UK and New York, NY, USA and the International Institute for Applied Systems Analysis, Laxenburg, Austria, pp. 385-422.

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By Patrick V. Hess Monday, December 26th 2016 23:56:00 PM .
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G.R. No. 148333 - VIRGILIO SANTIAGO v. BERGENSEN D.Y. PHILIPPINES, ET AL.
VIRGILIO SANTIAGO, Petitioner, v. BERGENSEN D.Y. PHILIPPINES and NATIONAL LABOR RELATIONS COMMISSION (THIRD DIVISION), Respondents.
Petitioner Virgilio Santos' petition for Certiorari before the Court of Appeals having been dismissed by Resolution1 of October 15, 1999 on the ground that it was filed out of time, and his Motion for Reconsideration having been denied by Resolution2 of May 18, 2001, he lodged the Petition for Review on Certiorari at bar.
Petitioner filed a complaint for illegal dismissal, non-payment of wages, overtime pay, vacation pay, moral and exemplary damages and attorney's fees against Bergensen D.Y. Philippines (respondent) before the Labor Arbiter.
The Labor Arbiter dismissed the complaint for lack of merit.
On appeal, the National Labor Relations Commission (NLRC), by Resolution3 of November 16, 1998, affirmed the finding that petitioner was not illegally dismissed. It, however, required respondent to pay petitioner the sum of Ten (10) Thousand Pesos (P10,000.00) for failure to afford petitioner due process.
Petitioner received a copy of the NLRC Resolution on December 18, 1998.4 On December 28, 1998, he filed a motion for reconsideration which the NLRC denied with finality by Resolution5 of August 5, 1999. On August 18, 1999,6 "he was informed by another law firm" of the denial of the Motion for Reconsideration.
On October 11, 1999, he filed before the appellate court a petition for Certiorari, docketed as CA-G.R. SP No. 55295, which was, as earlier adverted to, dismissed by Resolution7 of October 15, 1999 for having been filed four (4) days late.
Petitioner through counsel alleged that he received copy of the resolution dated November 16, 1998 of the National Labor Relations Commission (NLRC) on December 18, 1998, denying his appeal. Ten days (10) days later, or on December 28, 1998, he filed his motion for reconsideration. On August 18, 1999, he actually received copy of the NLRC's resolution denying his aforesaid motion for reconsideration (although admittedly said resolution was received by another law firm earlier on August 16, 1999). The present petition for certiorari was filed on December 11, 1999.
Petitioner's Motion for Reconsideration which was filed on November 17, 1999 was denied by Resolution9 of May 18, 2001, hence, the petition at bar.
This Court finds for petitioner.
If the petitioner had filed a motion for new trial or reconsideration in due time after notice of said judgment, order or resolution, the period herein fixed shall be interrupted. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of such denial. No extension of time to file the petition shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days.
The appellate court thus correctly dismissed his petition.
When petitioner filed his Motion for Reconsideration on November 17, 1999, the same above-quoted rule was still prevailing. When the appellate court resolved said motion, however, or on May 18, 2001, Section 4, Rule 65 had already been amended by A.M. No. 00-2-03-SC.
The record shows that petitioner received the NLRC Resolution denying his Motion for Reconsideration on August 18, 1999. Under A.M. No. 00-2-03-SC, he had 60 days or until October 17, 1999 to file a petition for certiorari before the appellate court. He filed one on October 11, 1999, well within the reglementary period.
WHEREFORE the petition is hereby GRANTED. The assailed Court of Appeals Resolutions of October 15, 1999 and May 18, 2001 are hereby SET ASIDE and the case is REMANDED to said court for appropriate action.
3 CA Rollo at 20-27.
5 CA Rollo at 28-30.
11 Republic v. Court of Appeals, 399 SCRA 277 (2003); Universal Robina Corporation v. Court of Appeals, 373 SCRA 311 (2002); Pfizer, Inc. v. Galan, 358 SCRA 240 (2001); Unity Fishing Development v. Court of Appeals, 351 SCRA 140 (2001); Systems Factors Corporation v. National Labor Relations Commission, 346 SCRA 149 (2000); Narzoles v. National Labor Relations Commission, 341 SCRA 533 (2000).
12 Republic v. Court of Appeals, supra at 284.
13 Systems Factors Corporation v. National Labor Relations Commission, 346 SCRA 149, 152 (2000).

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