[Dr. Ashok Dhamija]

In the case of dismissal, the employee is disqualified from future employment under the same employer while in case of removal he is not debarred from getting future employment.

In the case of Dattatraya Mahadev Nadkarni (Dr) v. Municipal Corpn. of Greater Bombay, (1992) 2 SCC 547 : AIR 1992 SC 786, the Supreme Court has also held that in case of removal the employee is not debarred from getting future employment.

Please see for more details: What is difference between removal and dismissal from service?

Therefore, generally speaking, if a person is removed from paramilitary forces, he should be in a position to join a Central Government service if he is otherwise qualified and his misconduct is not of a very serious or of a highly objectionable nature.

     

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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]

Read the full section 156 Cr.P.C. in the proper context. Do not read it out of context. It says WHICH case can be investigated by officer in charge of police station; it does not say WHERE he can investigate such 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]

How I can explain why a particular investigating officer is showing arrest of a particular person from a different place? You have to ask that IO for that if he shows a wrong place of arrest or challenge in 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]

(1) No GST is applicable to fees taken by a homeopathic doctor since services by way of health care services by a clinical establishment, an authorised medical practitioner or paramedics are fully exempted from GST.

(2) Medicine given by a doctor comes under “goods” and NOT “services”, therefore, GST may be applicable as per the rate applicable on medicines.

(3) GST rates on medicines are 5% and 12%. There is a long list of medicines (and their salts) mentioned in the GST rate structure. You have to check which are the medicines that you give and the GST rate on that.

(4) If you come within the taxable limits of GST, then you as homeopathic doctor will have to register for GST. As I mentioned above, for services by way of health care services by a clinical establishment or an authorised medical practitioner, GST is not applicable and accordingly on this account, no GST registration is necessary. For giving medicines during your practice, up to Rs. 20 lakh value per annum, there is GST exemption; so there would be no need to register on this account if the value of the medicines given is less than that amount. If the value of medicines is between Rs. 20 lakh and Rs. 75 lakh per annum, then GST registration may be necessary but you may opt for the composition scheme, where 1% GST composition rate may need to be paid. For value of medicines more than Rs. 75 lakh per annum, you have to pay regular GST at the rate of 5% or 12%, as the case may be, but with input tax credits.

You may consult your accountant for more details.

     

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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 the contempt proceedings, the tribunal does not have the power to modify or change the original order (in respect of which the contempt is alleged to have been committed). While dealing with an application for contempt, the court cannot traverse beyond the order, non-compliance of which is alleged. It would not be permissible for a court to examine the correctness of the earlier decision which had not been assailed and to take a view different than what was taken in the earlier decision. The court cannot say what should not have been done or what should have been done. It cannot test correctness or otherwise of the order or give additional directions or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings.

In the case of K.G. Derasari v. Union of India, (2001) 10 SCC 496, the Supreme Court held that:

“…the Tribunal was not entitled in a contempt proceeding, to consider the legality of its earlier order which has reached finality not being assailed or annulled by a competent forum. If the Tribunal has not looked into any previous decision of this Court which is the law of the land and by which it was bound, the remedy available to the aggrieved person was to file an application for review. Admittedly, no review application was filed before the Tribunal. In an application for contempt, the Tribunal was only concerned with the question whether the earlier decision has reached its finality and whether the same has been complied with or not. It would not be permissible for a tribunal or court to examine the correctness of the earlier decision which has not been assailed, and reverse its earlier decision.”

Similarly, in the case of Director of Education v. Ved Prakash Joshi, (2005) 6 SCC 98, the Supreme Court held that while dealing with an application for contempt, the Court is really concerned with the question whether the earlier decision which has received its finality had been complied with or not. It would not be permissible for a court to examine the correctness of the earlier decision which had not been assailed and to take a view different than what was taken in the earlier decision. The court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party who is alleged to have committed default in complying with the directions in the judgment or order. If there was no ambiguity or indefiniteness in the order, it is for the party concerned to approach the higher court if according to him the same is not legally tenable. Such a question has necessarily to be agitated before the higher court. The court exercising contempt jurisdiction cannot take upon itself power to decide the original proceedings in a manner not dealt with by the court passing the judgment or order. Right or wrong the order has to be obeyed. Flouting an order of the court would render the party liable for contempt. While dealing with an application for contempt, the court cannot traverse beyond the order, non-compliance of which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional directions or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible.

     

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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]

By an amendment made to the Criminal Procedure Code, a Proviso was added to Section 372 thereof in the year 2009, which lays down as under:

“Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”

However, in the case of Satya Pal Singh v. State of M.P., (2015) 15 SCC 613 : 2015 Cri LJ 4929, the Supreme Court has held that:

“… it is abundantly clear that the proviso to Section 372 Cr.P.C. must be read along with its main enactment i.e. Section 372 itself and together with sub-section (3) of Section 378 Cr.P.C. otherwise the substantive provision of Section 372 Cr.P.C. will be rendered nugatory, as it clearly states that no appeal shall lie from any judgment or order of a criminal court except as provided by Cr.P.C.”

“Thus, to conclude on the legal issue: “whether the appellant herein, being the father of the deceased, has statutory right to prefer an appeal to the High Court against the order of acquittal under the proviso to Section 372 Cr.P.C. without obtaining the leave of the High Court as required under sub-section (3) of Section 378 Cr.P.C.?” this Court is of the view that the right of questioning the correctness of the judgment and order of acquittal by preferring an appeal to the High Court is conferred upon the victim including the legal heir and others, as defined under Section 2(wa) Cr.P.C., under the proviso to Section 372, but only after obtaining the leave of the High Court as required under sub-section (3) of Section 378 Cr.P.C.”

Though the above judgment is in respect of a case where the appeal was to be filed in high court, it may be applicable in the case where the appeal is to be filed in sessions court as well, since it is an interpretation of the Proviso to Section 372 Cr.P.C. I am of the considered and respectful opinion that the above judgment of the Supreme Court is wrongly decided on this issue; however, being the law laid down by the Supreme Court it is binding on all.

Therefore, for filing an appeal against an order of acquittal, the victim may have to first obtain leave of the high court under Section 378(3) of the Cr.P.C.

     

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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 the case of A.C. Narayanan v. State of Maharashtra, (2014) 11 SCC 790 : AIR 2014 SC 630 : 2014 Cri LJ 576, a 3-judge bench of the Supreme Court has held as under:

• The power-of-attorney holder may be allowed to file the complaint, appear and depose and verify on oath before the court in order to prove the contents of the complaint for the purpose of issue of process for the offence punishable under Section 138 of the NI Act.
• However, when the power-of-attorney holder of the complainant has not witnessed or does not have a personal knowledge about the transactions, then he cannot be examined as a witness in the case.
• However, where the attorney holder of the complainant is in charge of the business of the complainant payee and the attorney holder alone is personally aware of the transactions, there is no reason why the attorney holder cannot depose as a witness.
• Nevertheless, an explicit assertion as to the knowledge of the power-of-attorney holder about the transaction in question must be specified in the complaint.
• However, it is clarified that the power-of-attorney holder cannot file a complaint in his own name as if he was the complainant. In other words, he can only initiate criminal proceedings on behalf of the principal.
• Section 200 Cr.P.C. does not create any embargo that the power-of-attorney holder or legal representative(s) cannot be a complainant. 

I hope your query is sufficiently answered by the observations of the Supreme Court in the above 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]

Under Section 25 of the Contract Act, 1872, if an agreement is expressed in writing and registered under the law for the time being in force for registration of documents, and is made on account of natural love and affection between parties standing in a near relation to each other, then such agreement is not void even if there is no consideration.

In your case, an amount of Rs. 101 is just a token amount and is not a valid consideration for the sister to relinquish her share in the property keeping in view the fact that the value of the property is more than Rs. 1 crore. However, if the sister does this “on account of natural love and affection” for her brother who stands in a near relation to her, then such agreement will not be void since it is in writing and is registered. It will be valid.

In a similar situation, in the case of Ranganayakamma v. K.S. Prakash, (2008) 15 SCC 673, the Supreme Court held that a deed of “release” for a consideration is a transaction. When, thus, a release is made for consideration, the particulars of consideration and other particulars which are required to be averred in the deed are essential elements thereof. The Supreme Court held that a relinquishment of a property by a sister in favour of her brother for a consideration or absence of it, stands on a different footing. Section 25 of the Contract Act must be read and construed having regard to the fact situation obtaining in the 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]

Valuable security is defined under Section 30 of the IPC as under:

“30. “Valuable security”.—The words “valuable security” denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right.”

The issue raised by you, i.e., whether a certificate forged to get admission in a college for education is a valuable security, is directly covered by the judgment of the Supreme Court in the case of Shriniwas Pandit Dharamadhikari v. State of Maharashtra, (1980) 4 SCC 551 : AIR 1981 SC 80, in which it was held that:

“…but as regards the offence under Section 471 read with Section 467 IPC we do not think that the two certificates the appellant has been found to have forged to get admission in the Arts and Commerce College affiliated to Poona University could be described as “valuable security” as the expression is defined in Section 30 of the Indian Penal Code. We therefore alter the conviction under the aforesaid sections to one under Section 471 read with Section 465 of the Indian Penal Code.”

Therefore, forgery of a certificate to get admission in a college will not be a valuable security forged for the purposes of Section 467 IPC and the application of such section in your case is wrong.

     

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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 fact, Criminal Procedure Code is an all-India code. It is a central law. It applies to India as a whole, excepting some areas such as Jammu and Kashmir. Even though police forces are constituted on state basis, an investigating officer can generally exercise his power of investigation throughout India.

For example, Section 161 of Cr.P.C. which gives power to the investigating officer to examine any person as a witness (which is the most important part of the investigation) uses the expression “may examine orally any person supposed to be acquainted with the facts and circumstances of the case”. There is no bar on examining a witness from another state or going to another state and examining a witness there.

Section 165 Cr.P.C. gives power to the I.O. to conduct search without warrant in his own police station area. Section 166 Cr.P.C. empowers the I.O. to require the officer in charge of another police station (whether in the same district or another district) to conduct searches during his investigation. This section also does not lay down any state restrictions.

Further, Section 48 of the Cr.P.C. specifically lays down that “A police officer may, for the purpose of arresting without warrant any person whom he is authorised to arrest, pursue such person into any place in India.” Thus, an I.O. can arrest an accused person anywhere in India without warrant, if he otherwise has power to arrest him without warrant.

So, the police has the power to conduct investigation anywhere in India wherever the Criminal Procedure Code applies.

     

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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]

Yes, a divorce petition can be filed after reconciliation of a divorced marriage, provided fresh grounds are available on which divorce can be sought.

Therefore, if there are any fresh grounds after reconciliation, on which divorce can be sought under the provisions of the law, then a fresh divorce petition is not barred under law. The principle of res judicata is not applicable, strictly speaking, to divorce matters, as there could be completely fresh grounds giving a fresh cause of action. However, it would all depend upon the facts and circumstances of each case, though there is no legal bar.

In this regard, you may also see the following reply which is relevant to your question: First divorce petition withdrawn then second petition filed, is it valid?

     

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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 sorry the questions that I asked remain not properly answered. In the absence of full details, it is difficult to give correct answer. It is better if you show your documents to some lawyer and then take his advice.

Anyway, presuming that what you have mentioned is correct, i.e., that your application under Order 7 Rule 5 was dismissed, there does not appear to be a provision of appeal against such order (here, I am presuming that you have mentioned correct details, though I am not sure about these details). You may perhaps try a revision application, in consultation with your advocate, before the high court under Section 115 of the CPC, if this in fact is the correct factual position mentioned by you.     

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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 this regard, it is pertinent to point out that in the case of P.A. Karkhanis v. UCO Bank, (2009) 5 Mah LJ 444, a Division bench of the Bombay high court has held that the appellate authority is required to consider the evidence on record and to find out the guilt. The appellate authority is duty bound to assess the evidence for coming to the conclusion as to whether the guilt is established against the delinquent or not. It was held that in the said case, upon perusal of the order of the appellate authority, an impression was created as if the appellate authority’s jurisdiction was restricted only to see whether the enquiry was conducted in accordance with the principles of natural justice. The appellate authority can certainly reappreciate the evidence and reach its own conclusions. It was held that the appellate authority had not appreciated the evidence on record in its proper perspective so as to find out the alleged misconduct on the part of the petitioner. It was further held that if it was found that the material facts produced by the delinquent had not been taken into account at all, the High Court can certainly interfere with the findings which were arrived absolutely on the basis of surmises or conjectures.

Thus, it is clear from the above ruling that the appellate authority is required to consider the evidence on record and to find out the guilt, and that the appellate authority is duty bound to assess the evidence for coming to the conclusion as to whether the guilt is established against the delinquent or not. The appellate authority can certainly reappreciate the evidence and reach its own conclusions.

     

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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]

Rule 105(2) of Order 21 of CPC contains the provision relating to dismissal of the execution application for default by laying down that where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed.

Rule 106(1) provides that the applicant, against whom an order is made under sub-rule (2) of Rule 105, may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non-appearance when the application was called on for hearing, the Court shall set aside the order on such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.

Rule 106(3) provides that an application under sub-rule 106(1) shall be made within 30 days from the date of the order, or where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the order.

In your case, since you are the applicant in the execution petition, the period of limitation under Rule 106(3) is 30 days for you.

In this regard, in the case of Damodaran Pillai v. South Indian Bank Ltd., (2005) 7 SCC 300 : AIR 2005 SC 3460, the Supreme Court has held that Rule 106(3) of Order 21 of CPC clearly shows that when an application is dismissed for default in terms of Rule 105(2), the starting point of limitation for filing of a restoration application would be the date of the order and not the knowledge thereof. As the applicant was represented in the proceeding through his advocate, his knowledge of the order is presumed. The starting point of limitation being knowledge about the disposal of the execution petition would arise only in a case where an ex parte order was passed [which would be under Rule 105(3)] and that too without proper notice upon the judgment-debtor and not otherwise. Thus, if an order has been passed dismissing an application for default under Rule 105(2), the application for restoration thereof must be filed only within a period of thirty days from the date of the said order and not thereafter. Therefore, the date when the decree-holder acquired the knowledge of the order of dismissal of the execution petition is wholly irrelevant.

Therefore, in your case, even if you came to know about the dismissal of the execution application at a late stage, the period of limitation of 30 days would start from the date of order of dismissal itself, as held by the Supreme Court in the above case.

In the above case, the Supreme Court further held that application of Section 5 of the Limitation Act (under which delay can be condoned for sufficient cause being shown to the court) has been expressly excluded in proceedings under Order 21 of CPC. Therefore, even an application under Section 5 of the Limitation Act was not maintainable. Further, the court held that the civil court in the absence of any express power cannot condone the delay. For the purpose of condonation of delay in the absence of applicability of Section 5 of the Limitation Act, the court cannot invoke its inherent power.

In view of the above, it appears that you cannot file an application for restoration of the executive petition which has been dismissed for default since the limitation period of 30 days has already expired in your case and the delay cannot be condoned.

     

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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]

Order 6 Rule 17 of the CPC empowers the court to allow a party to amend his pleading at any stage of the proceedings subject to certain conditions; this Rule is reproduced below:

“17. Amendment of pleadings.— The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”

However, in your case, the question is not merely of amendment of the pleadings, but also of adding a new party (respondent) in the suit, wherein question of limitation may arise.

In this regard, it is pertinent to point out that in the case of Alkapuri Coop. Housing Society Ltd. v. Jayantibhai Naginbhai, (2009) 3 SCC 467 : AIR 2009 SC 1948, in somewhat similar situation, the Supreme Court has held that:

“It is neither in doubt nor in dispute that the court’s jurisdiction to consider an application for amendment of pleading is wide in nature, but, when, by reason of an amendment, a third party is sought to be impleaded, not only the provisions of Order 6 Rule 17 of the Code of Civil Procedure (CPC) but also the provisions of Order 1 Rule 10 CPC would come into play. When a new party is sought to be added, keeping in view the provisions of sub-rule (5) of Rule 10 of Order 1 CPC, the question of invoking the period of limitation would come in.”

Sub-rule (5) of Order 1 Rule 10 of CPC, as referred to in the above Supreme Court judgment is reproduced below:

“(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.”

It is noteworthy that Section 22 of the Indian Limitation Act, 1877, is equivalent to Section 21 of the Limitation Act, 1963 (36 of 1963), and the latter section is reproduced below:

“21. Effect of substituting or adding new plaintiff or defendant.—(1) Where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party:

Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.

(2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.”

In the above-mentioned case, the Supreme Court further held that the question as to whether an application for amendment should be allowed in spite of delay and laches in moving the same, would depend upon the facts and circumstances of each case wherefor a judicial evaluation would be necessary. It was also held that there cannot be any doubt or dispute that an application for amendment of the plaint seeking to introduce a cause of action which had arisen during the pendency of the suit stands on a different footing than the one which had arisen prior to the date of institution of the suit.

In view of these reasons, it may depend on the facts and circumstances of the case and also the nature of the case whether a third party may be added as a new defendant in your suit at this late stage when the delay is of about 10 years. The question of limitations needs to be considered depending on facts and nature of the suit and the type of right being enforced. Moreover, it also depends on the facts of the case as to whether the application for amendment of the plaint can be considered as one seeking to introduce a cause of action which had arisen during the pendency of the suit or the one which had arisen prior to the date of institution of the suit. It is not possible to reply to this issue in the absence of detailed facts in the question. You may please consult some lawyer by disclosing full facts to 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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