[Dr. Ashok Dhamija]

Vigilance Clearance Guidelines of 2007 for Central Government servants are applicable with respect to (a) empanelment, (b) any deputation for which clearance is necessary, (c) appointments to sensitive posts and assignments to training programmes (except mandatory training). Vigilance clearance guidelines do not apply to confirmation of probation period, as far as I understand.

The Supreme Court decision in the case of Union of India v. K.V. Jankiraman, (1991) 4 SCC 109 : AIR 1991 SC 2010, is basically in respect of sealed cover procedure which is used when the employee is due for promotion, etc. As far as I understand it is not applicable for confirmation of probation period.

Office Memorandum No.22011/4/91-Estt.(A) the 14th Sept., 1992, issued by the Government of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel & Training, following the above Jankiraman case judgment, is also concerned mainly with promotion, and the Subject itself shows: “Promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation – Procedure and guidelines to be followed”.

When a new employee joins service, his antecedents are checked and a police verification report is generally called for, on the basis of attestation form filled by the employee. Though I have not seen the relevant documents in your case, it appears that you are referring to such verification report and checking of antecedents. It may be difficult to apply the judgment on sealed cover procedure and the guidelines on vigilance clearance to the initial appointment on probation and its confirmation. The initial appointment itself is generally supposed to be subject to a satisfactory police verification and checking of antecedents.

In any case, from what you have mentioned, it appears that the probation period has not been terminated but only that the decision on confirmation period has been kept pending in view of the pendency of the criminal case investigation. Since you have mentioned that a closure report has been filed by police in court, which is pending acceptance by court, I think you should have patience and the confirmation may follow after acceptance of the closure report by court.

     

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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]

On the one hand, you are saying, “Nowhere in the agreement they mentioned about me paying 1,50,000 if I don’t serve 18 months”, on the other hand, you have stated that you stopped cheque payment. What cheque was that? Was it not as a security bond if you did not complete the stipulated 18 months minimum service?

Please read my reply given to a similar question (Dishonour of cheque given as security – whether offence under Section 138 N.I. Act made out?) which covers this issue.

Also see: Consequences of Stop Payment on cheque dishonour when there is a dispute between parties.

So, generally speaking, a cheque given as a security, may not be covered within the expression “for the discharge, in whole or in part, of any debt or other liability”, which is an essential ingredient for a cheque bounce case. But, ultimately, it will depend on the examination of the detailed facts of your case as to whether the cheque given by you was “for the discharge, in whole or in part, of any debt or other liability”. But, the burden may be on you to prove this.

     

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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]

I am going by your statement, as per which, you have confirmed that the private college in which you were employed, was NOT aided by Government, etc.

In such situation, you can be covered within the definition of “public servant” under Section 2(c) of the Prevention of Corruption Act, 1988, only under clauses (viii) or (xi) thereof, which are reproduced below for your information:

“(c) “public servant” means,-

(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;

(xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations;”

Please also note the Explanation 1 to this definition, which is reproduced below:

“Explanation 1.- Persons falling under any of the above sub-clauses are public servants, whether appointed by the Government or not.”

This implies that if a person is covered within the definition of “public servant”, he would be a public servant, even if he was not appointed by the Government.

For the purposes of clause (viii) of Section 2(c), the expression “public duty” is defined in Section 2(b) of the PC Act as under:

“(b) “public duty” means a duty in the discharge of which the State, the public or the community at large has an interest;

Explanation.- In this clause “State” includes a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956);”

It is in the light of these legal provisions that your status as a public servant is to be determined. Please keep in mind that for these provisions (as quoted above), it is not necessary that any Government aid had been received.

Please consult some local lawyer by showing all your relevant documents who can perhaps guide you on the detailed facts of your case, in the light of relevant legal provisions quoted above by me. It is not possible for us, on this forum, to go into detailed facts of an individual case. We can basically help on the relevant legal points.

Secondly, if you are aggrieved by the high court order, you could perhaps have exercised the option of approaching the Supreme Court, at that time. Another option for you may be to wait for the filing of charge sheet (if any) or for conclusion of the ACB investigation, and then decide the future course of action, including filing of a discharge application in the trial court, if needed. It is noteworthy that the high court has itself mentioned that you should wait for the investigation to be over, since as per the high court, whether or not any aid was received by the college would be known only after collection of evidence (though I think receiving any aid itself may be irrelevant).

[Note: Some contents for this reply have been taken (in modified form) from my book: Prevention of Corruption Act, Second Edition (2009), appx. 2250 pages, published by LexisNexis Butterworths Wadhwa, New Delhi (ISBN: 978-81-8038-592-6).]

     

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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, let me point out that in case husband and wife are not able to live together and want divorce, the best remedy of course is the mutual consent divorce with one time settlement.

Generally, it is the husband side, which requests for mutual consent divorce. In your case, this offer is coming from your wife side, so it is rather a good thing for you, and you may agree to it, since otherwise, the wife side would generally file cases under Section 498-A IPC and domestic violence, etc.

Do not doubt everything. It does not help. Once your wife side is itself offering you the option of mutual consent divorce with one time settlement, it perhaps shows their good intention. If you do not agree, what is the other better option for you, given that you also do not want to live together?

For that matter, any agreement or MOU can be breached or violated. That does not mean that people would never enter into an agreement or MOU under the fear that it is likely to be breached tomorrow.

Do not agree for paying the full settlement amount in the beginning in one instalment. Insist for 3-4 instalments; one at the time of MOU, second at the time of filing of mutual consent divorce, the third at the time of the second motion of mutual consent divorce, etc.

Get the MOU signed in presence of some respected witnesses from both sides, who may act as a sort of guarantee, though it may still be not a perfect guarantee that such MOU would not be violated. But, then what is the better option?

If possible, have mediation through Mediation Cell of the High Court or District Court, as the case may be, possibly with court intervention. Try to enter into MOU through such mediation.

     

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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]

Your case appears to be from Tamil Nadu, since Section 292-A IPC appears to be applicable only in Tamil Nadu through a state amendment.

Since in your case, the FIR is already filed and investigation is going on, you should cooperate with the investigation and provide whatever evidence is available to the police. You may also keep record of the evidence (such as, posters displayed in village), in case needed in future; you may take photographs of such posters. If you feel that the investigation is not being conducted properly, intervention of the senior officers may be helpful and for this purpose, you can try to convince the senior officers.

After the completion of investigation, if the police closes the case and does not charge sheet the accused (or if the police files a charge sheet, but does not apply proper sections), you’ll get a chance to file your protest petition before the Magistrate court. At that time, you may show the relevant evidence and convince the Magistrate court to take cognizance of the case under proper sections, despite a police report to the contrary. If needed, at that time, you can pursue the case as a private complaint case, in which scenario, you have to prove the case yourself (or by your private lawyer) by providing sufficient evidence.

You also have the option of approaching the high court for directing the police for proper investigation, but the chances of the high court intervening are generally very less.

     

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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]

This means that the individual water connections would be in the name of the individual flat owners only. May be that a common pipe comes to the building, but connections may be individuals, since the association is not existing.

You may file the complaint with police. If need be, approach the court.     

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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]

Please read Apartment association threatening where I have mentioned that society cannot disconnect the water supply, which is an essential service. You can file a complaint to the competent authority under the societies related law of your state. If the society has an issue of non-payment of the maintenance charges by a member, it can sue the concerned member for recovery of the same, but it cannot disconnect water supply.

In fact, in your case, you have mentioned that there is not even an association (of flat owners) formed. Then how can they disconnect water to your flat, since the water connection would be in individual names (as there is no association or society)?

You can keep a record of all their threats and inform them in writing about the legal position.

You should also contact your landlord / lessor in this regard, and try to sort out the matter through him. If needed, issue a legal notice to the lessor. There must have been a clause in the lease agreement as to who would pay for the capital expenditure to be incurred for repair, renovation, etc. There may even be some indemnity clause in this regard.

     

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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]

You have not given full details of the decision of the Supreme Court. Perhaps, you are referring to the November 3, 2017, decision of the Supreme Court with regard to distance courses of some deemed universities. If this is so, then my understanding is that the Supreme Court has ruled that the degrees would remain suspended till the students pass an examination under the joint supervision of AICTE-UGC. For this purpose, the Court has directed the All India Council of Technical Education (AICTE) to conduct appropriate written and practical tests for the concerned students. The entire expenditure for conducting the tests has been directed to be recovered from the concerned Universities. You may read the detailed Supreme Court in this case at this link.

A review petition can be filed against Supreme Court decision and it is listed before the same bench. For this purpose, you may contact some lawyer in the Supreme Court. However, in practice, the chances of success in a review petition are very negligible. See: Success Rate of Review Petition and Curative Petition in Supreme Court.

     

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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]

Form-16 is issued for TDS deduction. If there is no TDS deduction, there is no necessity of issuing a Nil TDS Form-16 to the employee concerned by the employer. However, if an employer (optionally) decides to issue a Forum-16 for Nil TDS deduction to an employee, there may be nothing wrong in it. But, it is not necessary under law to issue a Nil TDS Forum-16 if there is no TDS deduction for an employee.

     

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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]

It is very difficult to reply on facts of a case without actually going through all the relevant documents. Let me try to help you on the basis of whatever limited facts are known to me.

Firstly, the burden is on the complainant to prove the offences alleged against you, such as cheating. You have said that there is no written or oral agreement or document. In such a situation, it would be difficult for him to show for what specific purpose the amount was given to you. Generally, it would appear that he had given a loan to you by giving you a cheque. But, if a loan is not repaid, partly or fully, it is generally not a case under Section 420, 406 IPC, but a civil matter, for which a civil suit for recovery of amount needs to be filed.

On the other hand, if he himself states that the amount was paid to you for shares, then the value of shares is always subject to market fluctuations. But, in this situation, the question would also be as to whether you were licensed to trade shares on behalf of another person [such as a portfolio management service (PMS)].

The amounts mentioned by you are mentioned differently at 3 places. At one place, you wrote Rs. 3 lakh, at another place Rs. 2.20 lakh, and at yet another you wrote about repayment of Rs. 2 lakh and a further demand of remaining amount of Rs. 2 lakh (which implies Rs. 4 lakh). Anyway, that is a separate issue. You know the correct amount.

The fact that you have repaid Rs. 2 lakh to him, which may though be party payment only, shows that you had the intention to repay, which implies that you did not have intention to cheat since the beginning.

Ultimately, it would depend on the detailed facts of the case. Your defence and reply would depend on what the specific facts of the case are, including his allegations. It is not possible for us on a forum like this to go into detailed facts of a case. We can help you about your doubts about legal points or procedures, but on facts our guidance may not be perfect in the absence of having seen the detailed facts and documents of the case. You should consult some local lawyer. If needed, you can approach Legal Aid Cell in the High Court or District Court, which generally provides free legal services or may be at a very nominal pay, and show them all your 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]

If you are compromising with the respondent / accused through mediation, then it is up to you to ask for the a one-time single payment and also for interest at whatever rate you desire, provided of course that both parties should mutually agree. If you don’t want to agree to terms unfavourable to you at such mediation, then nobody would force you. Of course, the opposite party must have the capacity to pay to whatever you demand and/or whatever they agree, since you have said that Unitech does not have money to pay.

Even if the case is heard on merits by the court and then decided by the court, it may order compensation to you which may include interest on the cheque amount. In fact, in this regard, in the case of R. Vijayan v. Baby, (2012) 1 SCC 260 : 2012 Cri LJ 846 : AIR 2012 SC 528, the Supreme Court has held that in cheque bounce cases, courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine up to twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation. The detailed observations of the Supreme Court are as under:

“18. Having reached that stage, if some Magistrates go by the traditional view that the criminal proceedings are for imposing punishment on the accused, either imprisonment or fine or both, and there is no need to compensate the complainant, particularly if the complainant is not a “victim” in the real sense, but is a well-to-do financier or financing institution, difficulties and complications arise. In those cases where the discretion to direct payment of compensation is not exercised, it causes considerable difficulty to the complainant, as invariably, by the time the criminal case is decided, the limitation for filing civil cases would have expired. As the provisions of Chapter XVII of the Act strongly lean towards grant of reimbursement of the loss by way of compensation, the courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine up to twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation. Direction to pay compensation by way of restitution in regard to the loss on account of dishonour of the cheque should be practical and realistic, which would mean not only the payment of the cheque amount but interest thereon at a reasonable rate. Uniformity and consistency in deciding similar cases by different courts, not only increase the credibility of cheque as a negotiable instrument, but also the credibility of courts of justice.”

“19. We are conscious of the fact that proceedings under Section 138 of the Act cannot be treated as civil suits for recovery of the cheque amount with interest. We are also conscious of the fact that compensation awarded under Section 357(1)(b) is not intended to be an elaborate exercise taking note of interest, etc. Our observations are necessitated due to the need to have uniformity and consistency in decision making. In same type of cheque dishonour cases, after convicting the accused, if some courts grant compensation and if some other courts do not grant compensation, the inconsistency, though perfectly acceptable in the eye of the law, will give rise to certain amount of uncertainty in the minds of litigants about the functioning of courts. Citizens will not be able to arrange or regulate their affairs in a proper manner as they will not know whether they should simultaneously file a civil suit or not. The problem is aggravated having regard to the fact that in spite of Section 143(3) of the Act requiring the complaints in regard to cheque dishonour cases under Section 138 of the Act to be concluded within six months from the date of the filing of the complaint, such cases seldom reach finality before three or four years let alone six months. These cases give rise to complications where civil suits have not been filed within three years on account of the pendency of the criminal cases. While it is not the duty of criminal courts to ensure that successful complainants get the cheque amount also, it is their duty to have uniformity and consistency with other courts dealing with similar cases.”

 

     

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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 so far ACB (Anti-Corruption Bureau) is concerned, the practice has been to register the case of disproportionate assets, under Section 13(1)(e) of the Prevention of Corruption Act, at the place where the accused is posted at the time when the offence is registered, i.e., the place of his office. This is what is the general practice prevalent.

But, if we consider the mandate of law, then it may be pointed out that Sections 177 and 178 of the Criminal Procedure Code mainly deal with the place of inquiry and trial as under:

“177. Ordinary place of inquiry and trial.—Every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed.”

“178. Place of inquiry or trial.—

(a) When it is uncertain in which of several local areas an offence was committed, or

(b) where an offence is committed partly in one local area and partly in another, or

(c) where an offence is continuing one, and continues to be committed in more local areas than one, or

(d) where it consists of several acts done in different local areas,

it may be inquired into or tried by a court having jurisdiction over any of such local areas.”

Thus, an offence is to be tried at a place where the offence was committed, and if it was committed partly at one place and partly at another place (or partly at many other places), then it can be tried at any one of such places.

Now, Section 5(3) of the PC Act lays down as under:

“(3) Save as provided in sub-section (1) or sub-section (2), the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as they are not inconsistent with this Act, apply to the proceedings before a Special Judge; and for purposes of the said provisions, the Court of the Special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Judge shall be deemed to be a Public Prosecutor.”

In view of these reasons, it was held by the Supreme Court in the case of V.K. Puri v. CBI, (2007) 6 SCC 91 : 2007 Cri LJ 2929, that when a particular matter is not covered by the PC Act 1988, in view of sub-section (3) of Section 5 of the 1988 Act, the provisions of the Code of Criminal Procedure shall clearly be applicable, and thus, provisions of Section 177 and 178 of Cr.P.C. would apply to corruption offences. In this case, the appellant was an officer working in the Customs Department. A case was registered against him under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 for acquisition of assets disproportionate to his known sources of income in relation to the check period in question. The appellant contended that since he had never been posted in Delhi during the said period, the Delhi Court had no jurisdiction to try his case. The Special Judge as also the High Court rejected the said contention. On appeal, the Supreme Court held as under:

“Each court, where a part of the offence has been committed, would, therefore, be entitled to try an accused. The 1988 Act does not bar application of Section 178 of the Code of Criminal Procedure. If application of the provision of Section 178 of the Code of Criminal Procedure is not barred, the fact that the appellant has a part of his known sources of income at Delhi, in our opinion, would confer jurisdiction upon the Delhi Courts. It is one thing to say that only the Special Courts will have jurisdiction to try the offence, but for the purpose of arriving at a decision as to the Special Judge of which place shall have the requisite jurisdiction, the situs of the property may or may not have any relevance. Once the situs of the property is held to have relevance for the purpose of ascertaining his known source of income and consequent acquisition of disproportionate assets, in our opinion, the Special Judge concerned will also have the requisite jurisdiction to try the case. For the said purpose, purport and object for which the 1988 Act has been enacted must be taken into consideration. The doctrine of purposive construction therefor must be taken recourse to.”

From this judgment, therefore, it would appear that a case of disproportionate assets can be tried at any of the places where his assets / properties are found or where he is posted when the case is registered.

Since, usually, the territorial jurisdiction of the police to register an offence corresponds to the provisions of Section 177 and 178 of the Cr.P.C., therefore, legally speaking, offence of disproportionate assets can be registered by ACB at any of these places, as mentioned above. However, as pointed out by me in the beginning of this reply, the practice in the Anti-Corruption Bureau has been to register the case at the place where he was holding post when the case is registered, even though registration of offence at above-mentioned other place may not be barred under law.

     

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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]

It is not mandatory to file Nil TDS Return if you have not paid any amount to someone during a quarter on which TDS is required to be deducted. However, you have to file a declaration for non-filing of the TDS Return for the quarter concerned. For this purpose, visit the Traces website. Login with your TAN details. After login, in the top menu bar, from the “Statements / Payments” menu item, select the option “Declaration for Non-Filing of Statements”. Provide relevant details for non-filing of the TDS Return for the quarter which no TDS Return is required to be filed.

     

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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]

I have covered this issue recently in my reply, which is available at: Family pension to unmarried daughter of more than 25 years age. Please read it.

Family pension is covered under the provisions of Rule 54 of the CCS (Pension) Rules, which is available at the link: http://persmin.gov.in/pension/rules/pencomp7.htm.

Further, all the relevant circulars and guidelines of the Central Government relating to Family Pension are available at this link (click here).

     

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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]

Due to delay, of course, the evidence (specially the medical evidence) would be weak. But, there would be your verbal / direct evidence. Generally, in such cases, the evidence of the victim is given a substantial weightage. If you have some other evidence that also you can submit. You may try to get the medical examination also done, but this evidence may or may not be positive. There are cases where complaints in rape cases have been given after long delays, more so in similar technical rape cases wherein a false promise of marriage is given. You have to take a call whether or not you should try to file the FIR. You have to take a chance if there is no other option available to you. If needed, you may consult a local lawyer by sharing full details of facts with him.

     

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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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