Dr. Ashok Dhamija
Forum Replies Created
-
AuthorPosts
-
Dr. Ashok DhamijaAdvocateThis may be a problem because a person who is in Government service, is not allowed to be in any other service at the same time. This may also mean that while joining the Government service, the person might have concealed information from the Government authorities about his service in the private school. Probably, he also might have concealed the information that he again joined the private school for one or two days, after having joined the Government service.
Generally, the Government rules prohibit any other employment, private trade etc. (you can check your own relevant rules). For example, Rule 15 of the Central Civil Services (Conduct) Rules, 1964, prohibit private trade or employment, by providing as under:
“15. PRIVATE TRADE OR EMPLOYMENT:
(1) Subject to the provisions of sub-rule (2), no Government servant shall, except with the previous sanction of the Government-
(a) engage directly or indirectly in any trade or business, or
(b) negotiate for, or undertake, any other employment, or
(c) hold an elective office, or canvass for a candidate or candidates for an elective office, in any body, whether incorporated or not, or
(d) canvass in support of any business of insurance agency, commission agency, etc., owned or managed by any member of his family, or
(e) take part except in the discharge of his official duties, in the registration, promotion or management of any bank or other company registered or required to be registered, under the Companies Act, 1956 (1 of 1956) or any other law for the time being in force, or of any co-operative society for commercial purposes.
(f) participate in or associate himself in any manner in the making of-
(i) a sponsored media (radio or television) programme; or
(ii) a media programme commissioned by Government media but produced by a private agency; or
(iii) a privately produced media programme including video magazine:
Provided that no previous permission shall be necessary in case where the Government servant participates in a programme produced or commissioned by Government media in his official capacity.
(2) A Government servant may, without the previous sanction of the Government,-
(a) undertake honorary work of a social or charitable nature, or
(b) undertake occasional work of a literary, artistic or scientific character, or
(c) participate in sports activities as an amateur, or
(d) take part in the registration, promotion or management (not involving the holding of an elective office) of a literary, scientific or charitable society or of a club or similar organisation, the aims or objects of which relate to promotion of sports, cultural or recreational activities, registered under the Societies Registration Act, 1860 (21 of 1860), or any other law for the time being in force, or
(e) take part in the registration, promotion or management (not involving the holding of elective office) of a co-operative society substantially for the benefit of Government servants, registered under the Co-operative Societies Act, 1912 (2 of 1912), or any other law for the time being in force:
Provided that –
(i) he shall discontinue taking part in such activities, if so directed by the Government; and
(ii) in a case falling under clause (d) or clause(e) of this sub-rule, his official duties shall not suffer thereby and he shall, within a period of one month of his taking part in such activity, report to the Government giving details of the nature of his participation.
(3) Every Government servant shall report to the Government if any member of his family is engaged in a trade or business or owns or manages an insurance agency or commission agency.
(4) Unless otherwise provided by general or special orders of the Government, no Government servant may accept any fee for any work done by him for any private or public body or any private person without the sanction of the prescribed authority.
EXPLANATION – The term ‘fee’ used here shall have the meaning assigned to it in Fundamental Rule 9 (6-A).”
Ultimately, it will depend on the relevant rules. It may also depend on how lenient or liberal the concerned authority will be to consider this issue when this information is revealed to the authority now after 27 years (as it relates to 1990). But, the authority may consider it as a misconduct also and may initiate a departmental action. It depends on the authority concerned, but the rule may not favour you, depending on what the exact rule is in your Government. So, please check with your concerned department.
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 DhamijaAdvocateI think this was already mentioned in your main question. As I mentioned earlier, you may have to approach the appropriate court or tribunal for expediting the decision. Otherwise, you may make a representation to the higher authority or Govt for directing the authority to take faster decision, if you feel that they would do justice.
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 DhamijaAdvocateSection 4(2) of the Criminal Procedure Code says that all offences under any law other than Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions of Cr.P.C., but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
Section 320 of Cr.P.C. makes certain offences under IPC compoundable, with or without the permission of the court. Sub-section (9) of this Section says that no offence shall be compounded except as provided by this section. Therefore, the offences which are not made compoundable under 320 Cr.P.C. will not be compoundable; but, of course, this will be subject to any special provision made in any other law, as mentioned in Section 4(2) of Cr.P.C., as pointed out above.
Now, offences under the Protection of Civil Rights Act, 1955, are not shown to be compoundable. So, they would be deemed to be non-compoundable, since no law makes them compoundable. In fact, in this regard, it is pertinent to point out that Section 15 of the PCR Act, prior to its amendment in 1976, made the offences under this Act compoundable with the permission of the court; this old section 15 is reproduced below:
“15. Offences under the Act to be cognizable and compoundable.— Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898)—
(a) every offence under this Act shall be cognizable; and
(b) every such offence may, with the permission of the Court, be compounded.”
But, after its amendment in 1976, Section 15 of the PCR Act now does not contain that compoundable clause. The amended Section 15 is reproduced below:
“15. Offences to be cognizable and triable summarily.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be cognizable and every such offence, except where it is punishable with imprisonment for a minimum term exceeding three months, may be tried summarily by a Judicial Magistrate of the first class or in a metropolitan area by a Metropolitan Magistrate in accordance with the procedure specified in the said Code.
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), when any public servant is alleged to have committed the offence of abetment of an offence punishable under this Act, while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence of abetment except with the previous sanction—
(a) of the Central Government, in the case of a person employed in connection with the affairs of the Union; and
(b) of the State Government, in the case of a person employed in connection with the affairs of a State.”
Therefore, in view of this specific amendment in 1976, and also in view of the general provisions of the Cr.P.C., as pointed out above, it can be said that offences under PCR Act are non-compoundable.
However, if the other party is willing to compromise the case as it appears (since that is also the condition for compounding the offence), you may file a petition / application before the concerned high court under Section 482 of the Cr.P.C. for quashing of the proceedings / FIR on the basis of such compromise. There is a reasonable chance that the high court may allow it to be quashed if the other party is willing to compromise, as such a case may be covered in the decision of the Supreme Court in the case of Gian Singh v. State of Punjab, (2012) 10 SCC 303 : AIR 2012 SC Supp 838 : 2012 Cri LJ 4934.
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 DhamijaAdvocateReport it to the court which issued the order.
File an application before the court for making a reference to the high court for contempt of court.
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 DhamijaAdvocateUsually, during pendency of departmental enquiry, sealed cover process is used for promotion and promotion may be delayed till the departmental enquiry is available. You may have to get the enquiry expedited. If needed, you may approach the high court or the administrative tribunal (if there is any such tribunal in your state, which has jurisdiction in your matter) to get the process of departmental enquiry expedited citing the reason of your impending retirement.
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 DhamijaAdvocateIf the property belongs to your parents and has been bought by them, then they have every right over the property. This right includes the right to sell the property. They can take legal action to evict the married adult son who is forcibly occupying the property. Please take help of some local lawyer for the legal proceedings.
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.
March 15, 2017 at 3:13 pm in reply to: Eligibility of officer on contract exercising authority of competency #1174Dr. Ashok DhamijaAdvocateAs far as I understand if a person is holding the position of competent authority in a lawful manner and if there is no legal defect in his occupying that position, then he should be in a position to exercise the powers of that authority. The source of his recruitment should not come in the way, provided there is no legal defect in his appointment. Temporary only implies that he would not be there for regular duration but in so far as he is lawfully appointed to a position, he should be in a position to exercise the powers attached to that position during whatever tenure he has got. Of course, if there is a specific condition in his temporary / contractual appointment that he would not exercise such-and-such power, then it may be a different situation.
And, if there is a legal defect in his appointment and in his occupying that position (of competent authority), then you may even file a writ of quo warranto.
Since you have mentioned about a charge sheet against a central government servant, I don’t know why do you want to issue a notice under Section 80 CPC. A Central Government servant can directly challenge a charge sheet issued to him in the Central Administrative Tribunal (CAT), if there is a legal defect in the charge sheet. There is no need for issuing a notice under Section 80 CPC or, in fact, even for filing a suit under CPC. Such matters are covered under CAT now.
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 DhamijaAdvocateThis will depend on the relevant provisions applicable / existing in the PSU in which you have joined. You’ll have to consult the relevant circulars in the PSU. We cannot reply to it since it is not a question of law.
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 DhamijaAdvocateRelevant provisions of Civil Procedure Code are reproduced here for your information:
Order 3 Rule 1. Appearances, etc., may be in person, by recognised agent or by pleader
ORDER III
Recognised Agents and Pleaders
1. Appearances, etc., may be in person, by recognised agent or by pleader.— Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader 1[appearing, applying or acting, as the case may be,] on his behalf:
Provided that any such appearance shall, if the Court so directs, be made by the party in person.
2. Recognised agents.— The recognised agents of parties by whom such appearances, applications and acts may be made or done are—
(a) persons holding powers-of-attorney, authorising them to make and do such appearances, applications and acts on behalf of such parties;
(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorised to make and do such appearances, applications and acts.
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 DhamijaAdvocateUnder the Contempt of Courts Act, 1971, only the high court and the Supreme Court have the power to punish a person for contempt of court. The District Court does not have the power to punish for contempt; however, it can make a reference to the high court for contempt under Section 15(2) of the said Act.
Section 16 of the said Act clearly says that even a judge or magistrate can also commit contempt of his own court or of another court. But, whether such contempt has been committed by such judge or magistrate has been committed will depend on the facts of each case, which may be examined by you in the facts of your case.
Section 16 of the said Act is reproduced below:
“16. Contempt by judge, magistrate or other person acting judicially.—(1) Subject to the provisions of any law for the time being in force, a judge, magistrate or other person acting judicially shall also be liable for contempt of his own court or of any other court in the same manner as any other individual is liable and the provisions of this Act shall, so far as may be, apply accordingly.
(2) Nothing in this section shall apply to any observations or remarks made by a judge, magistrate or other person acting judicially, regarding a subordinate court in an appeal or revision pending before such judge, magistrate or other person against the order or judgment of the subordinate court.”
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 DhamijaAdvocateThere is no appeal against an order of maintenance under Section 125 of Cr.P.C. However, a revision may be permissible against such order under Section 397 Cr.P.C.
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 DhamijaAdvocateUnder Section 125 Cr.P.C., husband cannot demand maintenance from his wife, even if he is unable to maintain himself.
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 DhamijaAdvocateIf it is your case, you can even get to know the names of these “private witnesses” from the court. Why are you so concerned with the nomenclature? From what you have mentioned, they may be prosecution witnesses. May be that they may be private persons (as against some witnesses who may be Government servants). But, if they are being called to depose on behalf of the prosecution, you may simply consider them as prosecution witnesses, though the court may have used a different nomenclature.
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 DhamijaAdvocateAs far as I understand, “private witness” is not defined in law anywhere. This is not an expression of law, as per my little understanding of law.
There are prosecution witnesses and there are defence witnesses.
Please ask the person who has coined this expression “private witness.
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 DhamijaAdvocateFirstly, a person can make a will only in respect of his own property. Section 59 of the Indian Succession Act, 1925 says that “Every person of sound mind not being a minor may dispose of his property by will.” If there is an unpartitioned joint property, he can make a will only in respect of his own share of such property, and not of the whole property.
Secondly, will can be made in favour of any person who is capable under law to hold property. Therefore, legally speaking, will can be made in favour of concubine if one is disposing of his own property.
Thirdly, registration of a will is not compulsory under law. It is optional. Therefore, even an unregistered will may be considered as valid if it is otherwise a genuine will.
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.
-
AuthorPosts
