[Dr. Ashok Dhamija]

While I have not seen the actual rules which are applicable in your organisation (i.e., Food Corporation of India), let me state the general principles with regard to suspension which may be applicable subject to the actual rules existing in your organisation:

(1) The recent judgment of the Supreme Court in the case of Ajay Kumar Choudhary, laying down 3 months’ limit for suspension was mainly with regard to suspension which is due to a departmental proceedings in which charges have not been communicated. This judgment was not in respect of the suspension on the basis of a criminal case; however, the general principle that suspension should not be for an unduly long period, may perhaps still apply.

(2) Secondly, it is not clear as to whether charges have been framed by the court in the criminal case against you.

(3) Generally, the rules provide for renewal of suspension periodically (may be after every 3 months). For this, there needs to be application of mind by the authority. Such decision is required to be communicated to the officer concerned. In the absence of these, continued suspension may be challenged.

(4) Usually, 50% subsistence allowance is given for an initial period of suspension as mentioned in the respective rules applicable (say, 6 months), and, thereafter, this allowance may be increased generally to 75% if the suspension continues beyond this initial period.

(5) You may challenge the suspension before the appropriate court or tribunal, by engaging a local lawyer at your place, if needed. Show all relevant orders / records to such lawyer.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

The issue of res judicata has been dealt with in Section 11 of the Civil Procedure Code (CPC). The principle of res judicata basically means that: “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

Please mark the last few words: “…has been heard and finally decided by such Court”. This is an essential condition for applying the principle of res judicata, i.e., the previous matter must have been heard and finally decided by the court.

The facts stated by you show that your wife had withdrawn the previous divorce petition, which imply that the previous petition was NOT heard and finally decided by the court. This means that the principle of res judicata may not apply in this case and your advocate appears to have advised you correctly.

At the same time, I may hasten to add that one should also keep Order 23 of the CPC in mind which relates to withdrawal of a suit. Whether the withdrawal was absolute or whether a liberty was given by the court to file a fresh suit after withdrawal, may also have to be seen.

Further, one may also have to consider the fact that in a matrimonial dispute, there may be a continuing wrong on the basis of which divorce may be sought, or otherwise, there may be a fresh wrong which may give rise to a fresh cause of action. Thus, for example, there may be a continuing cruelty (which may have continued to happen even after withdrawal of the previous divorce petition) or there may be a fresh cruelty (after the previous divorce petition), which may give a fresh cause of action for filing a fresh divorce petition.

So, all these factors have to be considered in each matter depending on the facts and circumstances of the case. In the absence of knowledge of the full facts of the case, it may not be advisable for me to say anything more, other than the above general principles. Yes, of course, I may add that you should be prepared to fight the fresh case on its own merits.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

First two questions are repetitions of your earlier questions. In brief, it is reiterated that you can always file your own cases for custody of your child and the visitation rights. No one can stop you from doing that. Please do not repeat the same question.

If a party to a court proceeding makes a false statement on oath to the court, it may be perjury for which action can be taken against that party. Secondly, such false statement shows the character of that party and also that such party has not come with clean hands before the court. It may have some bearing on the court matter, since the court may lose confidence in such party. Having said that, and with this caveat, a matter before the court (such as divorce petition) has to be decided on its own merits. If a particular case has its own merits, then it may not be thrown merely because of one or two lapses. Ultimately, it depends on the total factual matrix of the case, all facts considered together, including the false statement made and its effect on the merits of the case.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Copyright is a protection provided to the original literary, dramatic, musical and artistic works and cinematograph films. Copyright gives an exclusive right in respect of such original works to reproduce the work, distribute, prepare copies, perform in public, to translate, to make adaptation of the work, etc. 

Original work gets copyrighted at the moment of its creation in a tangible form. It is not mandatory to specifically register it as a copyrighted work, though it may be advisable. 

A website, including its content, graphics, visual elements, etc., is considered to be copyrighted at the time of development if such content etc. is original. Usually, the copyright notice is put on the bottom of a website. Such notice implies that the material displayed on the website is not to be used without permission of the owner of the website. However, even if such copyright notice is not displayed at the bottom of the website, the website content may be deemed to have been copyrighted at the time of its creation, if it is an original content. 

Sometimes, a Creative Commons (CC) license is displayed on a website which is one of several public copyright licenses that enable the free distribution of an original work which is otherwise a copyrighted work. A CC license is used when the author of a copyrighted work wants to give people the right to share, use, and build upon a work that he has created. It is up to such author of a CC license whether to permit free commercial use of his work or to put some other conditions on the free use of such work.

If a particular content on a website is copyrighted, you should not copy it and put it on your own website, without the specific permission of the author / owner of such content. This is so even if other websites might have copied that content and put it on their own websites. If ten other persons have committed an offence in respect of something, then that does not mean that you also get a license to commit a similar offence.

Of course, if a particular content carries a Creative Commons license or some other public license which allows free use of such content, with or without certain conditions specified, then such content can be used by observing those conditions, if any. It is also advisable to give credit to the author of such content.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Section 36 of the Arbitration and Conciliation Act, 1996, deals with the enforcement of the arbitral award, as if it were a decree of the court. It says that where the time for making an application to set aside the arbitral award under Section 34 has expired, then, subject to the provisions of sub-section (2), such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were a decree of the court.

Now, the time limit for making an application to set aside the arbitral award under Section 34 is 3 months. However, in genuine cases where the delay is justified, the court has the power to entertain such application in a further period of 30 days. Thus, a total of 4 months’ time limitation has been laid down for filing an application for setting aside the arbitral award.

In view of this, the arbitral award can be enforced after 4 months if during this period an application to set aside the award has not been filed. Even where such application to set aside the award has been filed, but the court has not given any stay on the operation of the award, then also the enforcement of the award may take place after the above period of 4 months. However, if the operation of the award has been stayed, in that case the enforcement of the award may get delayed.

Accordingly, generally speaking, an execution petition to enforce the arbitral award may be filed after 3 or 4 months, subject to any stay (if any) in any application filed by the opposite party to set aside the award.

Section 36 of the Arbitration and Conciliation Act, 1996, is reproduced as under:

“36. Enforcement.— (1) Where the time for making an application to set aside the arbitral award under Section 34 has expired, then, subject to the provisions of sub-section (2), such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were a decree of the court.

(2) Where an application to set aside the arbitral award has been filed in the Court under Section 34, the filing of such an application shall not by itself render that award unenforceable, unless the Court grants an order of stay of the operation of the said arbitral award in accordance with the provisions of sub-section (3), on a separate application made for that purpose.

(3) Upon filing of an application under sub-section (2) for stay of the operation of the arbitral award, the Court may, subject to such conditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing:

Provided that the Court shall, while considering the application for grant of stay in the case of an arbitral award for payment of money, have due regard to the provisions for grant of stay of a money decree under the provisions of the Code of Civil Procedure, 1908 (5 of 1908).”

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

In a writ petition, in the matter of granting time for filing counter-affidavit and rejoinder, etc., generally the high court has wide discretion.

In fact, even at the time of filing of a fresh writ petition also, usually, the time limitations have not been prescribed, though it is required to be filed in a “reasonable” time period. However, the word “reasonable” is flexible and if one can show some genuine reasons for delay, a writ petition may be allowed to filed even after a delay of a few years at the discretion of the high court. Likewise, in the matter of allowing filing of counter-affidavit in a writ petition, the high courts are generally liberal.

The relevant rules of the concerned high court may also be relevant here. But, generally, the high courts may be liberal in granting time for filing couner-affidavit by respondents, if the respondents show some genuine reasons. Normally, at least 2-3 chances may be given for this purpose.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Section 354-D of IPC is reproduced at the end of this answer. It defines the offence of “stalking”. As can be seen from this section, it is defined in wide and general terms and there is no exception in respect of the husband.

However, generally speaking, such conduct on the part of the husband may not amount to stalking since it may be covered in the clause (iii) of the Proviso to sub-section (1) which says that “in the particular circumstances such conduct was reasonable and justified”. Moreover, even the ingredients of main definition, such as “disinterest” and “foster personal interaction” may not be relevant in such a scenario.

So, generally speaking, a complaint given by wife against her husband under Section 354-D of IPC may not stand the test of law even if the definition of this section is quite general and wide. At the same time, there may be certain situations, such as, for example, where the husband and wife are living separately under a judicial order, such a complaint given by wife against her husband may perhaps be validly covered under Section 354-D of IPC.

Section 354-D of IPC:

“354-D. Stalking.—(1) Any man who—

(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or

(ii) monitors the use by a woman of the internet, email or any other form of electronic communication,

commits the offence of stalking:

Provided that such conduct shall not amount to stalking if the man who pursued it proves that—

(i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or

(ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or

(iii) in the particular circumstances such conduct was reasonable and justified.

(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.”

 

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Firstly, the persons who are appointed as a result of an earlier selection (examination) are senior to those who are appointed on a subsequent selection (examination).

Secondly, the seniority of direct recruits selected in the same selection or examination by UPSC is in the order of merit in which they are selected for appointment on the recommendations of UPSC. 

Their seniority is thus on the basis of the order of merit as per which they are selected. It is NOT on the basis of the date of confirmation in service.

In this regard, you may see O.M.No.20011/1/2008-Estt.(D) dated 11.11.2010 of the DOPT.

Also see: O.M. No. 20011/5/90-Estt. (D) dated 04.11.1992 of the DOPT, Govt of India.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Let me point out a few things with regard to your question:

(1) As per the provisions of the Contract Act, a contract may be written or unwritten. In fact, the contract may be implied also, which means a contract may be inferred from the circumstances or conduct of the parties even if there was no formal contract (whether written or unwritten). Therefore, merely because there was no formal contract, does not mean that you cannot enforce the contract. In the circumstances mentioned by you, there appears to be an implied contract and that can be enforced, more so because you have paid the consideration by bank account transfer.

(2) WhatsApp, Email and phone conversations are also admissible as evidence. This is electronic evidence. Can be proved by producing the original device / content, or by secondary evidence in terms of Section 65-B of the Evidence Act.

(3) The fact that you have paid by bank transfer, will be useful to prove the consideration paid by you.

(4) In these circumstances, it should be possible for you to file a civil case to compell him to perform his part of the contract, of doing the “specific work” (which you have not specified in your question).

 

 

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Generally speaking, the law does not prescribe any maximum time period for completion of investigation and filing of charge sheet.

However, for summons cases (i.e., a case NOT relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two year), the following legal provision exists in Section 167(5) of Cr.P.C.:

“(5) If in any case triable by Magistrate as a summons case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.”

Other than this, there is no general provision for putting a maximum time limit on the completitoin of investigation or the filing of charge sheet.

However, it may be pointed out that if an accused is under arrest and if the charge sheet is not filed within 90 days or 60 days (depending upon the gravity / seriousness of the case), then he may seek default bail after such period if the charge sheet is not filed within that period [See: sub-section (2) of Section 167 of Cr.P.C., for more details]. But, this does not mean that there is a maximum time limit for completing investigation or filing charge sheet in such cases; it only means that if the charge sheet is delayed beyond these periods then the accused under arrest will get right to be released on bail on this ground alone.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

No. Such leave from high court is not necessary under Section 378(3) of the Criminal Procedure Code before filing an appeal in the Sessions Court against an order of acquittal by the Judicial Magistrate.

In fact, prior to 2005 Amendment to Cr.P.C., Section 378(3) read as under:

“(3) No appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.”

But, after the 2005 Amendment to Cr.P.C., Section 378(3) now reads as under:

“(3) No appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.” [Emphasis supplied by me.]

Thus, now, after 2005 Amendment, such leave from the High Court is required only if the appeal against acquittal is to be filed in the High Court itself. For appeal against acquittal being filed in the Sessions Court, no such leave of high court is necessary under the above Section 378(3).

For the sake of clarity, Section 378 of Cr.P.C. is being reproduced in full as under:

“378. Appeal in case of acquittal.— (1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5),—

(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal—

(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.

(3) No appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.

(6) If in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2).”

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

The provision relating to the liability of an independent director is laid down in sub-section (12) of Section 149 of the Companies Act, 2013, which mandates as under:

“(12) Notwithstanding anything contained in this Act,—
(i) an independent director;
(ii) a non-executive director not being promoter or key managerial personnel,
shall be held liable, only in respect of such acts of omission or commission by a company which had occurred with his knowledge, attributable through Board processes, and with his consent or connivance or where he had not acted diligently.”

Therefore, an independent director can be held liable, only in respect of such acts of omission or commission by a company-

(1) which had occurred with his knowledge, attributable through Board processes, and
(2) with his consent or connivance or where he had not acted diligently.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

There is no prohibition in law for a minor to file a case in the court. If a particular issue is related to the interests of minors, in appropriate cases, even a public interest litigation (PIL) can also be filed in the name of minors.

However, please remember that if the PIL is to be filed directly in the Supreme Court, then it can be done only under Article 32 of the Constitution to enforce the fundamental rights. If there is no violation of fundamental rights involved in a matter, the Supreme Court cannot be approached directly by PIL and instead of that the high court should be approached first. In this regard, please read: http://tilakmarg.com/forum/topic/can-a-case-be-filed-directly-in-the-supreme-court/

Please also note that if the PIL or any other petition is to be filed in the name of a minor in the Supreme Court, then it has to be done through his next friend (who may be parent, guardian, etc.). For example, Rule 1 of Order VII of the Supreme Court Rules, 2013 requires as under:

“1. Every appeal, petition or other proceeding by a minor shall be instituted or continued in his name by his next friend.
Explanation.- In this Order, minor means a person who has not attained his majority within the meaning of section 3 of the Indian Majority Act, 1875 (9 of 1875) where the appeal, petition or other proceeding relates to any of the matters mentioned in clauses (a) and (b) of section 2 of that Act or to any other matter.”

As an example, I may point out that recently, in November 2016, the Supreme Court had ordered complete ban on sale of firecrackers in Delhi after three minors (TODDLERS) had filed PIL to stop pollution. This PIL was filed by Arjun Gopal, Aarav Bhandari and Zoya Rao Bhasin, who were all aged between 6 months to 14 months only. This decision of the Supreme Court has been reported as Arjun Gopal v. Union of India, (2017) 1 SCC 412. In this regard, please see the following news report: http://www.dailymail.co.uk/indiahome/indianews/article-3972428/No-fireworks-Supreme-Court-orders-complete-ban-sale-firecrackers-Delhi-three-TODDLERS-file-PIL-stop-pollution.html

This is just one example to illustrate that a minor can file a PIL, subject to certain conditions, some of which are mentioned above.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Firstly, it is not understood why did you give him a cheque of Rs. 450,000/- when you say that he gave you a loan of only Rs. 150,000/-?

Secondly, if he has sent you the notice of Rs. 450,000/-, as you have mentioned, then he would have given the details of the loan given to you, i.e., in what form it was given – whether part of that was given in cash or whatever?

You have to reply on the basis of whatever the correct facts are as per your own version. If you are willing to make the payment of the loan amount, then you may negotiate with him and settle the matter.

In the absence of having seen the detailed facts, it is not possible to guide you on facts. If needed, please engage some lawyer to draft the reply on your behalf by showing him all relevant details / documents.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

From your name, I can make out that you are referring to a case from Maharashtra. This also becomes more clear since you have referred to the post of Assistant Police Inspector (API), which exists in Maharashtra (and, perhaps, not in other states).

The answer to your question is contained in Section 197 of the Criminal Procedure Code, the relevant sub-sections of which are reproduced below:

“(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted.”

It is noteworthy that a notification has been issued by Maharashtra Government under sub-section (3) of Section 197 Cr.P.C., as mentioned above, for all members of Maharashtra Police.

Now, it is clear from a combined reading of the above provisions that the sanction for prosecution under Section 197 Cr.P.C., wherever it is applicable, would be required to be taken from the State Government in such a case (since the person against whom such sanction is needed is under the State Government). A lower authority, such as Director General of Police (DGP) does not have power to grant such sanction under Section 197 Cr.P.C.

Therefore, you’ll need the sanction for prosecution under Section 197 Cr.P.C. of the Assistant Police Inspector (API) from the State Government of Maharashtra (and NOT from DGP).     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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