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Building a Responsible Cyber Society…Since 1998

This is in continuation of the earlier article

The essence of the judgement in the case of Shapoorji Pallonji & Company Private Limited vs State of Maharashtra in the disputed e-Tender rejection case is that

An e-tender cannot be denied acceptance of filing even if the process could not be completed or if it is delayed beyond the period of closure.

Though the instant case was that of a large contract involving the State and the application of one of the parties had been rejected reducing the competition from three to two bidders, the principle established in this case can have far-reaching impact on every other E Commerce transaction and hence there is a need to discuss the impact of this judgement in greater detail.

Also, in the instant case, the judgement has not made much of a change in the fortunes of the other parties as the process of selection of the tender party will continue and the final choice is based on many other factors. But in many other cases of E-Commerce one technical issue may decide whether the contract is either valid or not and there is no second chance to correct the error. Hence if the principle established here becomes a universal guideline there could be lot more repercussions to the E Commerce industry than what is apparent.

Technology is a “Tool” that enables a transaction to take place between two legal entities and the law (ITA 2000) recognizes this through Section 11 of ITA 2000.

However whether an intermediary tool used on the web is a tool used by the first party or the second party depends on the factors leading to the use of the tool for completing the transaction. This principle has been well established in law in the case of the intermediary message delivery agency like the Post Office which can be an agent of either the sender or the receiver depending on who between them engaged the services of the Post Office. Today when there is an alternative to the Postal authorities, most of the time it is the sender who choses either the Post office or a particular courier to deliver his message and hence the delivery agency becomes the agency of the sender.

Any omissions of the delivery agency in such a case therefore becomes the legal responsibility of the sender.

In the instant case, the e-Tender application belonged to the Government and hence we can say that the defects in the system becomes attributable to the Government. Whether it is to be attributed to the MHDA or NIC is a fact that needs to be determined from some additional information which is presently not with us. Probably MHDA has used the services of NIC and their contract will determine the inter-se responsibilities.

The reported technical glitch could have arisen out of any of the following reasons.

a) Technical glitch in the tender software owned by NIC and leased out to MHDA for which either of them could be responsible based on the contract

b) Networking service which could be the ISP of the sender or the ISP of the tender processing agency

c) Hosting service provider who hosted the tender related documents

d) The sender’s computer including hardware, OS software, Application Software such as a Java script or Adobe Flash etc., the Anti virus or security software working there in, the configuration of security features, etc

Has the Court determined whether the so called “Technical Glitch” arose out of only the Tender software?… it is not clear.

Has the Court examined the configuration of the computer of the user before arriving at the conclusion that mistake must be with the Government end?…. it is not clear.

The Court has taken note that after the uploading of the documents, there was a process called “Freeze Bid” which involved the need for the party to receive an “Acknowledgement”.  According to the petitioner’s contention, this Acknowledgement was not received but they were able to provide a “Screen Shot” to demonstrate that the bid documents were “Uploaded”.

It is not clear if this “Screen Shot” produced by the petitioner in his own cause was “Section 65B certified.

The bidder paid the EMD in the form of a Bank Guarantee (Not known when this was submitted).

However, the respondent appears to have produced records to show that the portal recorded the transaction as an “Invalid Bid” and the tender document was not found in the place where it was meant to be.

According to the evidence it was stated that there was a “Failure” of the petitioner in “Not Clicking the Freeze Bid Button” and this was mandatory.

In defense the petitioner has argued that “…Even if the Freeze Bid button was not clicked, the uploaded document is stored on NIC’s server or associated file server or network attached storage or storage area network or within the data base.”

It was like a tender document that had to be put in a tender box was thrown into the premises some where but not put inside the tender box. Hence the tender committee could not take it into account.

The argument that it was inside the premises of MHDA (some where in the server) and the cover was unopened (encrypted) etc are arguments which donot have legal sanctity. The Court appears to have therefore seriously erred on this account.

If there is a process for submitting a tender and the contract is complete only when all the aspects are fulfilled, the Court had no right to arbitrarily come to the conclusion that it is enough if the document is uploaded and it was not necessary to “Commit” the document by clicking on the Freeze Bid button.

The Freeze Bid button/process is a mechanism that provides an option to the person submitting the tender not to complete the process even after the uploading of the document so that he can abandon his upload and resubmit his documents again and then click on the Freeze-bid button.

If the petitioner had wanted to change an uploaded document and at that time MHDA had raised the argument that the upload completes the process, the same petitioner would have argued that the process was incomplete and hence it should be given an opportunity to re-submit the document.

I therefore consider that the decision of the Court was not found on proper understanding of the system and it failed to address the need to debate on why the “Freeze Bid Button” was a critical process of tender submission and no matter what was the reason, not getting an acknowledgement was a failure of the submission of the tender document properly.

The Court has also ignored the provisions of ITA 2000, Section 12 which clearly mentions that when an “Acknowledgement” is a stipulated part of completion of a contract, non receipt of the acknowledgement was a clear reason to treat the contract as invalid.

The Court appears to have failed to follow the law in this regard.

Further if the submission was delayed even by just 2 minutes after the closure of the tender, it is a matter that cannot be condoned by the Court. If so, Court can manage the tender process by itself without the administrator in between. This appears to be a case of judicial over reach.

While we are not much concerned about this one decision where one Shapoorji Pallonji & Company Private Limited, got a second chance to make a bid for a huge Government project, we are concerned with the impact that this decision leaves on other E Commerce transactions.

Technical Glitches are not completely avoidable whether it is in a Mobile Wallet system or a E Banking system or any other electronic transaction. When systems are built, several layers of transaction confirmation is built and extensive testing undertaken to take care of the possibilities of technical problems that may arise. Since web platforms always have  a problem that they have to remain compatible with a variety of user end systems operating on multifarious hardware, OS and software platforms, it is impossible to create systems that are 100% foolproof. Hence an E-Transaction cannot be treated as legally complete under the discretion of a Court and not on the system records.

Tomorrow somebody may buy a property on 99acres.com and later challenge it to the judgement of the Court as to whether the purchase was out of technical glitch or not. Somebody  may enter into a transaction on Quikr and later claim that it was a technical glitch. There was a Bank of Maharashtra UPI fraud involving a technical glitch. Now there is perhaps another incident of a Rs 19 crore fraud in MobiKwick which also could be a technical glitch.

Can the Court stand in judgement of every such transaction? Or will the Court discriminate that only of the contract value is 100,000 crores, they will step in or otherwise no?

Before setting a precedence to over rule what is specified in law the Court should have considered the impact that its decision leaves on the industry. The Court should not have ruled that an Incomplete process can be considered as “complete” even on an “Exception” basis.

This will set up a bad precedent and cause more problems than what it has set out to correct.

By poking its nose in interpreting the “Technical Glitch” aspect, the Court has tried to re-define the concept of “Reasonable Security Practice” which will now require to follow the principle that “Human Spirits should prevail over technology”. This will adversely affect many technology concepts such as Facebook, Twitter, WhatsApp etc.

Given the ingenuity of Cyber Criminals, they can make every transaction look like a technical glitch if they want and Courts will be scratching their heads on understanding the difference between failure of a contract through technical glitch and failure due to a deliberate tweaking of the system. I am sure that it is child’s play to get the tender documents uploaded without an acknowledgement generation in every tender process. Then the sanctity of the “Freeze Bid” process as the final confirmation is defeated.

Similarly, when there is a “Terms and Condition” or “Privacy Policy” that needs to be “Consented” to with the clicking of an “I Accept Button”, some body may claim, even without clicking the button, the transaction is deemed as “Clicked” because the Mumbai High Court has the discretion to declare so.

It is field day for litigants because “Technical Glitch” can be a good excuse for challenging any E Commerce Transaction.

Considering the overwhelming adverse impact that this decision will leave, I wish that the decision is challenged since it violates the principles of Section 12 of ITA 2000… if there is still time.

The better view for the Court to take is that

The technology supplier shall use “Reasonable Security Practices” to ensure that technical errors are minimized though it may not be completely eliminated. Any loss caused to the users on account of inefficeint, inadequately tested products that fail to meet the “Reasonable Security Practice” standards should be covered out of “Cyber Insurance” or through “Claim of damages” in a separate suit rather than regularizing a transaction which failed.

Naavi

Copy of the judgement is available here

Also see: 
The e-tendering issues in Maharashtra.. “Uploading” is not the same as “submitting” the tender
 The Pandora’s box of Technical Glitches opened….The e-tender judgement in Maharashtra…1






An interesting judgement has come forth from the High Court of Maharashtra in the Shapoorji Pallonji & Company Private Limited vs State of Maharashtra which has debated some less known aspects of Information Technology Act 2000 (ITA2000) and the use of technology in e-Governance. Some aspects of the judgement are presented here for academic information.

Copy of the judgement is available here

The writ petition pertains to the complaint from Shapporji Pallonji & Company Private Limited (SPC) that their tender application made through the e-tender process by Maharashtra  Housing Development Authority (MHDA) was rejected for a technical reason that the tender process was not completed. National Center (NIC) was a Co-Petitioner since they maintained the system. The judgement was delivered on 28th September 2017 by honourable Justices Anoop V Mohta and Smt Bharati H Dangre.

An important observation of the judgement that needs to be taken note of is the statement that

“…it is clear that technology has its own glitches and the moot question is whether such glitches which causes substantial injustice are permitted to be cured manually, when as on today we have not reached a stage where the systems is fool proof and gives a guarantee that it is not susceptible to any error”

“… In the present case we have observed that uncertainty prevails in certain areas and no technology can make the system full proof (Ed: Is it fool proof?..see here or here) and as such a situation where the technology can err, we cannot completely exclude the element of human intervention in exceptional circumstances. Ultimately it is the human being who controls the technology and when it errs, it is for the human being to rectify it”.

“…Since we feel that the technology has failed to serve its intended purpose in the present case, and interest of justice call for intervention”

In summary the Court has ordered that the bid of the petitioner needs to be considered along with the two other bids.

We congratulate the legal team of the petitioner who successfully convinced the Judges that

a) There was a technical glitch in the system

b) The respondent refused to manually intervene and set the adverse effect of the glitch right

c) As a result, a rightful opportunity was denied to the petitioner and public good was adversely affected

With the decision behind us, we can now proceed on the larger impact of the decision on the e-Tender and other e-commerce industry.

Considering that

a) the dependence of the current society on e-transactions is very high, and

b) the technology cannot be fool proof, the possibility of technical glitches real

c) along with malicious interventions of technical nature to subvert an electronic system

a judicial declaration that that “Manual Interventions cannot be excluded in technical processes” opens up a Pandora’s box the impact of which has been ignored by the Judgement.

In order to understand the complications that the judgement can bring in, I recall the judgement of the Sonu@Anvar Vs State of Haryana  on Section 65B of Indian Evidence Act in which a convicted criminal wanted to seek aquittal because the evidence against him was procedurally not certified as required under law.

The technical argument of the petitioner in this case was sustainable and there was perhaps a flaw in the application of criminal justice system. However, the Court in this case came up with a practical conclusion that strict application of the procedure “.. is not in the interests of administration of justice as it would necessitate the reopening of a large number of criminal cases”.

In a developing society we need to appreciate that mistakes do happen and the Courts need to consider the larger impact on the society that their decisions and the possibility of a chaotic situation being created in protecting the genuine interest of one petitioner. A myopic view is often more harmful and could be avoided.

This e-Tender case is likely to be one such case where the decision could create avoidable chaotic disturbance to the e-Commerce industry in general.

I would try to explain more in my follow up article.

For the time being, let’s end with congratulating the team that brought this complicated issue into the discussion table which includes the NIC which caused the problem in the first place by not anticipating the technical problems and putting contingent remedies in place through inadequate testing and documentation.

(continuation article)

Naavi






Who is Responsible for Cheque Cloning?

Posted by Vijayashankar Na on September 29, 2017
Posted in Cyber Law  | No Comments yet, please leave one

“One fraudster has opened a current account in bombay. Deposited high value cloned cheques of another bank in his banks branch at surat. His banker is a collecting bank. Collecting bank officials have verified the chqs in UV Lamp and the official has signed and confirmed as”Verified under UV lamp”. City Back Office has sent it in CTS clg and the paying banker has passed the same eventhough the signature of the customer are not matching. Who can be held responsible? Is the collecting banker liable to refund the amount. If yes, who is answerable in collecting bank?”

I have received a query as above to an earlier article titled “Cheque Cloning Fraud that exposes the weaknesses in the Banking system”.

Many of the followers of this blog may not know that I was a Banker in my initial professional career and was also a faculty member for a long time teaching Negotiable Instruments Act in particular before the Banking system went digital and integrated Banking laws with Information Technology Act which is the law applicable to electronic documents. Many of the current day Bankers are “Computer Experts” and not experts in “Negotiable Instruments Act”. Veteran Bankers like us some times feel that current day Bankers do Banking as dictated by the systems and many times ignore the transaction behind the computer clicks. I therefore would like to respond to the above query in a little detail.

Before the ITA 2000 came into being, Banking was run on the principles of Banking law and Practice developed over a long time particularly under the British legal system. In India, Banks were administered through the RBI Act 1934, Banking Regulation Act 1939 and Negotiable Instruments Act 1881 among others. After the advent of ITA 2000, “Electronic Documents” were provided with legal recognition along with “Digital Signature”. Initially, Cheque along with Bill of Exchange and Promissory Note (together constituting the family of Negotiable Instruments) were outside the purview of ITA 2000. However, “An Electronic Letter with digital signature” addressed to the Branch manager could be treated as an operating instructions under which debits could be passed to the customer’s account. Later in February 2003, after the Negotiable Instruments Amendment Act 2002 came into force, Cheques in Electronic Form and Truncated Cheques were brought into the system. Since then RBI has been introducing many technical innovations. The Payment and Settlement Act and the more recent UPI and other digital payment systems have brought many changes which often appear to be in conflict with some of the established Banking law provisions.

In June 2001, the RBI under its Internet Banking Guidelines (Following the Mittal Group Report) clearly mentioned that Internet Banking cannot side step Banking laws and Consumer protection regulations applicable to Banking. In 2011, the GGWG Committee (G Gopalakrishna Working Group on E Banking, Information Security and Cyber Frauds) also reiterated that the current legal provisions endorsed by the Internet Banking Guidelines 2001 prevail. Despite this, the current generation of E Bankers often are oblivious to the existence of laws that affect Banking beyond the ITA 2000 and Payment and Settlement Act.

Even the NIBM and the Indian Banker’s Institute have been guilty of neglecting the conventional Banking laws when discussing the technology innovations and hence there is a wide spread ignorance in the industry about how to interpret the Technology along with the legacy laws.

Banking runs on the principles of “Banker-Customer Relation” that has been existing as the foundation of Banking and there is no reason this should be considered as not relevant today. However some aspects of the established principles such as whether  “Banker-Customer Relationship” is between the Customer and his Branch or between the Customer and the Bank as a whole, whether the timing of Banking, the holidays etc require to be re-interpreted in the light of the Anytime, Anywhere Banking and the use of ATMs, Cards, UPI type apps etc., needs elaborate discussion with the Banking law experts.

The query raised above open up an interesting debate on how should we interpret the Paying Bank and Collecting banker’s responsibilities in the current systems.

As per the Negotiable Instruments Act (NI Act), the paying bank is responsible  for “Payment in Due Course” under Section 85 of NI Act. He has to follow the “mandate” of the drawer of the cheque and when alterations have been made, it is liable irrespective of the expertise of a fraudster in committing the fraud through alterations.

The Collecting Banker is responsible for checking and ensuring that the apparent tenor of the cheque makes his customer the payee or the last endorsee of the cheque. He is responsible under Section 131 of NI Act for collection without negligence.

Once the system of “Truncated Cheques” came in to being, the responsibilities of the Paying Banker and Collecting banker has been re-defined to some extent.

In the Truncated cheque system, since the physical custody of the cheque remains with the collecting bank and only an image is sent to the paying Bank, the responsibility to check material alterations shifted from the Paying Banker to the Collecting Banker.

The responsibility of the Paying Banker is stated with the provisio “..Where the cheque is an electronic image of a truncated cheque, any difference in apparent tenor of such electronic image and the truncated cheque shall be a material alteration and it shall be the duty of the bank (Ed: the collecting Bank) or the clearing house, as the case may be, to ensure the exactness of the apparent tenor of electronic image of the truncated cheque while truncating and transmitting the image”. (P.S: Since the words while truncating is used in this section, it is considered to be a direction to the collecting banker and not the paying banker)

Only in case the paying banker had a reasonable suspicion about the possibility of material alterations, he was to call for the physical copy of the cheque. Otherwise the certificate of the collecting banker should suffice. The collecting Banker should digitally sign the truncated image and therefore takes the responsibility for the image as transmitted by him. The CTS officer should be personally responsible for applying his digital signature.

The amended Section 131 of the NIAct states “It shall be the duty of the banker who receives payment based on an electronic image of a truncated cheque held with him, to verify the prima facie genuineness of the cheque to be truncated and any fraud, forgery or tampering apparent on the face of the instrument that can be verified with due diligence and ordinary care.”

The 2015 amendment to NI Act further expanded the definition of the Cheque in Electronic form but did not affect the operations of the Truncated cheques.

In the case the query has referred to,  the collecting Bank (Surat?)  is responsible to check the material alterations. I am not sure if the collecting bank has actually checked the cheque under UV lamp and it went undetected. The Certificate may therefore be a “False” certificate.

In the event the UV lamp did not detect the erasure, it means that either the UV lamp could be faulty or the printing of cheque leaves was not on proper security form. The UV lamp deficiency is the collecting Bank’s responsibility.

The improper Cheque leaf or the inability to detect the specimen signature difference squarely belongs to the domain of the paying banker.

Paying Banker can be held liable in the above case if the background printing on the cheque did not get erased when the writing was erased.

If the signature is “Forged”, Paying Banker must reject payment and there is no escape even if the forgery is perfect.

If the signature is of the genuine customer only but differs from the specimen, then the issue is different. The Paying Banker may not be held liable for the signature difference since the mandate is to pay if “Signature is Genuine even if there is any difference” not where “Signature is tallying but not genuine”.

In summary, there is negligence both by the Paying Banker and the Collecting Banker. The relationship between the victim and the bank exists at the paying banker’s level and the Paying Banker by virtue of not being able to identify the material alteration is liable to compensate the drawer of the cheque even if the signature is genuine.

The Collecting Banker is liable to the Paying Banker for not being able to detect the material alteration and for failing to do a proper KYC on the fraudster and contributing to the crime.

Since the privity of contract is between the victim and the paying bank, the Paying Bank should be the first accused and the collecting bank should be the second accused. The fraudster could be the co-accused and I would place him in the last.

Victims should not fall into the trap of filing a complaint against the unknown fraudsters leaving the bankers even if it is suggested by the Police.

Simultaneously victims should launch adjudication since Police may fail to locate the fraudster and not keen on pursuing the case against the bankers and the case will eternally lie in the files of the Judiciary.

After the adjudication, it is likely that the Bankers will continue the legal challenge in an appeal and since TDSAT is the appeal authority for adjudication awards, it will be a pain for the victims to follow. They should therefore escalate the issue directly to the High Court since the merger of Cyber Appellate Tribunal with TDSAT is under challenge in Chennai High Court at present.

When the paying banker pays the customer by reinstating the balance in the account, he can claim the money from the collecting Bank. The collecting Bank can in turn collect the money from the fraudster customer for whom he has opened the account. Internal responsibilities (CTS officer or Account opening officer etc) are the issue of the bank to settle.

I hope this throws some light on the points raised in the query.

Naavi

Related Articles:

Cheque In Electronic Form, redefined, Implications on E Banking

ITA-2000 stands amended through NI Act Amendment: 6th December 2002

ITA-2000 and Negotiable Instruments Act : (2nd Nov 2000)

Virtual Negotiable Instruments…A Fantasy?: 22nd Feb 2001




Naavi.org was started way back in 1998 with a motto “Let’s Build a Responsible Cyber Society”. The “Cyber Laws” were identified as a “Norm” of the Cyber Society and hence “Cyber Law Compliance” has been a long term slogan of Naavi. It was way back in December 2000 that I made a statement in a CII seminar in Chennai stating that “Cyber Law Compliance is the Corporate Mantra for the Digital Era”.

It is of course another matter that nearly two decades afterwards we are still searching for Companies and Individuals who are keen to follow “Principles of Ethics” in their activities. Companies go after “Profits at all costs” and would not hesitate to cut corners and even down right cheat if there is an extra buck to be made. Cyber Criminals of course think it is their birth right to adopt any form on unethical behavior to reach their ends.  Some of them use technology to seek revenge on others and some use technology for financial gains.

Law enforcement tries to put barriers on such Cyber Crimes with limited success. Incidence of unethical behaviour of Law Enforcement itself is also not uncommon. Behind this is the force of our political system where the corruption of the past generation such as Bofors still make headlines today and our Ministers indulge in malpractices which are specially designed to put even disciplined army officers behind bars for extended periods just to gain some political credits. Our Judiciary can also deliberately make arithmetic addition mistakes to acquit an influential politician and even Supreme Court can conveniently reserve their judgement in such open and shut cases, until the influential politician respectfully leaves the world so that his/her reputation remains in tact at death.

It is a common observation today in the Job circles particularly in the IT Segment that people seem to keep jumping from company to company at frequent intervals without any loyalty to their employers. Some times the reasons for change is genuine as when the skills of the employee does not match the job profile or growth opportunities are blocked for reasons beyond the control of the individual but mostly it is pursuit of a few more rupees in salary and nothing else.

In certain cases, inefficiency sets in with the operation of “Peter’s Principle” and employers are also required to take the tough decision of giving out pink slips.

In certain other cases, some employees commit mistakes, land the Company in trouble but quietly move off to another company before their mistakes surface.

For example, in the Cyber Security domain, we say that on an average it takes more than 270 days for a security breach to be noticed by the organization and another 90 days for corrective measures to be applied. An intelligent CISO who comes to know of the issue much before others can very well leave the organization quietly so that during his tenure everything seems to be fine and some thing happened immediately after he left. This makes a great note for the CV but it is certainly not ethical to jump the sinking ship without even warning others and take shelter in a safe haven before things go wrong and suck others into the whirlpool of doom.

Whenever we discuss Cyber Law Compliance or even Cyber Insurance, we often come across situations where the CISOs donot want to admit that there are short comings in their actions and hence keep off further compliance actions until it may be too late.It is only the owners of establishments and Promoter Directors who are really concerned about Cyber Law Compliance and Cyber Insurance since they cannot run away.

In many cases of frauds, the owners go to jail themselves for negligence though the media often makes it out as if they were criminals themselves. But they often leave the controls of Compliance to their employee subordinates who may not have the same level of commitment that the entrepreneurs themselves have on the long term stability of the organizations and suffer.

Of course this argument excludes those entrepreneurs who specialize in setting up start ups without properly securing the businesses so that they can transfer them to some venture capitalist and run away  before it is too late.

Some times the Job shifts donot work out smoothly despite no ill will to start with. The current employers refuse to accept resignations and force employees who are no longer interested in continuing and in the process lose alternate opportunities.

Some times this may lead them to indulge in unethical practices such as abandoning the current employer and reporting at the new place without a relieving letter or a forged relieving letter. Some of them post derogatory messages in Glassdoor or Sarahah forcing the employers to seek legal remedies.

All these lead to an unpleasant employer-employee relations which is dysfunctional and unproductive for all. In certain cases it will kill the career of the employees who cross the limits of decency and indulge in contravention of law and end up in crimes such as  defamation and hacking of their old employer systems.  At that time it will be too late to put the clock back.

At the same time we also see some unethical employers who look at all outgoing employees as despicable and institute false cases against them only to prevent them from taking up other jobs.

In such an environment, seeking “Ethics” from ordinary people appears to be a little too much for this Kaliyuga. However, in every situation, there will always be some people who may still consider that if “Every One of us endeavors to be as clean as possible, the Society will be cleaner than what it is today”.

In pursuance of this “Eternal Goal”, it is our duty to recognize and appreciate the efforts of one Company in Bangalore which wants to create a business model out of an interesting concept “Ethical Job Seeker”.

This interesting concept was observed in a website www.iaccept.in belonging to a company called iAcccept Softwares Pvt Ltd, operating in Bangalore under what is indicated as a patented service.

The iAccept service tries to register employers and employees on its platform to build some kind of ethical behaviour during the time when a person is seeking the job, attending multiple interviews, accepting an offer at one place but getting a better offer in another and finally ending up up displeasing one or more employers.

The Employee thinks that it is his right to chose the best offer and the employer thinks that once he has issued an appointment letter and the person does not either accept it for an indefinite time or accepts it and later rejects it or does not simply report, is upsetting his plans for recruitment and wasting his time and money.

Often recruitment process runs for a long time for a month or two and if the candidate who has been interviewed by three or four executives and has been issued with the appoint letter makes it necessary for the organisation to go through the frustration of repeating the process once again, it leaves bad blood behind. In the meantime, if the acceptance of the resignation of its own employee who is being replaced is delayed, there is a problem for that individual also.

In a bid to find a solution to this problem, What iAccept proposes is to create a “Ethical Job Seeker” who registers on this platform. Simultaneously, potential employer organizations also register in the same platform.

The job seekers who register commit themselves to the following code of ethics:

I affirm that I have not and will not misrepresent about my educational qualifications.

I affirm that I have not and will not misrepresent about my employment status or my past or current employers

I shall always strive to keep my word and will honour any commitments made and believe that this is the foundation of my personal integrity.

I will not lay blame, try to justify, or give excuses. I will take prompt actions to innovate and improve to achieve better results. I will be accountable and I will take full responsibility to initiate all necessary actions.

It is expected that the candidates who accept an employment seeks a “release request” if he changes his mind and wants to accept another offer.

The job seekers would be evaluated with a “iAccept Score” which is computed out of a “Credibility Score” and “Ethic index”. When a candidate accepts a job, does not cancel or send regret letter and does not report would be considered as a “No Show” and his “Credibility Score” would suffer. Similarly when a candidate absconds from work without proper resignation and settlement of dues, his “Ethics Score” would suffer.

This means that a candidate who has built up a “Good iAccept Score” over a period is likely to get better attention from employers.

The registered employers on the platform submit themselves to the following code of ethics on their part.

As an organization, we will maintain positive, open, and value-added communication at all times and establish standards for ethical behaviour and integrity

We take pride in according individual respect, trust and teamwork.

We endeavour to sustain a work environment founded on dignity and respect for all employees

We help to make employees feel their jobs are important and cultivate the full potential of all employees

We encourage individual pursuit of work/life balance

We enable the well-being of individuals and their families through compensation, benefits, policies and practices

We appreciate and recognize the contributions of people who work here

We encourage employees to get involved in community endeavours

We consider the human toll when making business decisions

Obviously the concept will start providing benefits to the registered job seekers and employers over a period of time. The Companies are likely to have a higher concentration of ethical employees and the employees may get offers from companies good to work with.

The portal does not focus on being a “Job Portal” but encourages use of the platform to generate Service Letters/Experience letters without the need for contacting the old employers, send regret letters and also send in resignation letters.

Probably the concept can be further refined and additional value added. But we need to recognize that the idea is innovative and has a strong ethical objective to clean up the chaotic job market.

It is time for all job seekers and employers to take a look at this service and use it if it suits them.

Comments are welcome.

Naavi

 




FinTech Companies in P2P Lending will now be NBCFCs

Posted by Vijayashankar Na on September 21, 2017
Posted in Cyber Law  | No Comments yet, please leave one

We have discussed at length the subject of P2P lending platforms in the past and highlighted the need for proper regulation. Some of the earlier discussions can be found in the following articles.

Peer to Peer Lending Platforms and Regulatory Compliance

FinTech Companies need to watch out for the new regulations from SSWG

Will PSD2 have an impact in India?

RBI’s FinTech Working Group needs to secure Consumer interests also

Now RBI has finally come out with a notification that P2P lending platforms will be treated as “NBFCs”. (See Report here)

According to the notification

the term “the business of a peer to peer lending platform” shall mean the business of providing under a contract, the service of loan facilitation, via online medium or otherwise, to the participants who have entered into an arrangement with that platform to lend on it or to avail of loan facilitation services provided by it.

This is the correct interpretation as otherwise there would have been chaos in the financial services industry.

The P2P lending platforms raise funds at one end and lend it at the other end. While Banks absorb the funds into their account and then lend it out of their own kitty, P2P platforms may match the buyers and lenders directly and earn commission in between.

However, in practice it would be the platform that would be guaranteeing the repayment of loan participation coupons to the suppliers of lendable resources and recover the funds from the borrowers. If this had not been regulated, there would have been scope for many scams.

Though the Fintech company’s representative publicly states that they welcome the development, it is clear that many of the companies who were planning to come out with their Start Up operations have not factored in the regulations and need to completely revamp their proposed operations.

We welcome the move of the RBI.

Naavi

 




Has “Namo Smartphone” bought Flipkart?

Posted by Vijayashankar Na on September 20, 2017
Posted in Cyber Law  | 3 Comments

There is an entity called namo smartphone at IPO Building, 7 Race Course Street, Delhi 110001, with phone +91 7905457748 and e-mail address namo.smartphone@outlook.com.

This entity seems to own a domain name called FLIPKART-BIG-BILLION-DAY-SALE.COM and is offering some special gifts and sending out the following message through WhatsApp.

At first glance it appears as if it is a Flipkart official site since there is such a sale presently going on. Obviously, it is not.

The domain name has been registered at godaddy.com in the name “Namo Smartphone” which uses the familiar nick name of Mr Narendra Modi.

This therefore represents violation of two trademarks with an objective of misleading the public through “Impersonation”. It is therefore both an offence under Trademark Act and Section 66C of ITA 2000/8.

From the registration details, it appears that the domain name has been running since last 10 days without Flipkart recognizing it.

A little while earlier another WhatsApp message with special offers under the domain name flipkart-gst-sales.in was also received .

This domain is registered in the name of “GHFTYD FTYFT”, with phone number +91.9876545367 and e-mail ID, yogeshbtrn23@gmail.com. It appears that this person must be having several domain name registrations and all of them could be considered as tools for committing frauds.

With little effort, both these fraudsters can be traced if either Flipkart or the Police is really interested in public good.

It is only because companies like Godaddy.com are only interested in making money in domain names and not interested in public welfare and ICANN Is also encouraging this tendency to book domain names in fictitious names of registrants that such frauds are being facilitated.

I urge the Police to initiate action in these two cases which we are placing in the public domain and I urge Flipkart to register a complaint.

We have seen that whenever a new film is released, hundreds of websites are blocked under the suspicion that links to pirated copies would be made available in these sites, and even some Courts have issued orders of such nature on  “Unknown Potential Offenders”.

In such cases there is a producer who loses money and hence takes some action.  But in the Flipkart case, it is only the public who may lose money and hence no body seems to be bothered.

At least in this case since the reputation of Mr Modi is involved, will the Police take action?

Naavi