[Dr. Ashok Dhamija]

On the basis of the limited facts stated by you, it appears that the order of termination of service was made in violation of the conditions mentioned in the order of appointment itself. As such the order of termination appears to be void and illegal. In consultation with your lawyer, you may consider filing a suit for declaration that the order terminating your services was illegal and that you be treated as continuing in the service of the company on the ground that the order of termination of service was in contravention of the terms of employment order itself. The judgment of the Supreme Court in the case of Prabhudayal Birari v. M.P Rajya Nagrik Aapurti Nigam Ltd., (2000) 7 SCC 502 : AIR 2000 SC 3058, may be of help 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 replied to any of the queries asked by me. Please reply to those to let me understand the correct issue as to for what purpose you had filed the application which was rejected 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]

No doubt, you can request the trial court to expedite your trial on the ground of you being a senior citizen. And, most likely, the court may even accept such request and make efforts to expedite your case.

However, in actual practice, it may or may not help. This is for the simple reason that there is a large pendency in Indian courts and there are a large number of cases involving senior citizens also. Therefore, it all depends on the number of pending cases before a trial court. Sometimes, even though the trial court agrees to expedite your case, it may not be of much help in view of a large number of pending cases, including cases involving other senior citizens. It may be beyond the control of the court itself. But, there is no harm in trying.

     

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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 such situation, when an ex parte order has been passed by the National Consumer Disputes Redressal Commission (NCDRC) in your case, you have two options:

• either to file an application to the NCDRC under Section 22-A of the Consumer Protection Act to set aside such ex parte order in the interest of justice; or
• to file an appeal before the Supreme Court under Section 23 of the said Act.

Both these sections are reproduced below:

“22-A. Power to set aside ex parte orders.—Where an order is passed by the National Commission ex parte against the opposite party or a complainant, as the case may be, the aggrieved party may apply to the Commission to set aside the said order in the interest of justice.”

“23. Appeal.—Any person, aggrieved by an order made by the National Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of Section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order:

Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period:

Provided further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person has deposited in the prescribed manner fifty per cent of that amount or rupees fifty thousand, whichever is 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]

At the time when the Central Bureau of Investigation (CBI) [or Anti-Corruption Bureau (ACB) of a state] wants to catch a public servant red-handed while demanding and accepting a bribe by laying a trap, such agency calls two independent witnesses (also called “panch witnesses”). One of these witnesses is sent along with the complainant (from whom bribe has been demanded by the public servant) to witness the transaction of demand and acceptance of bribe by the public servant so that such public servant could be caught red-handed while accepting such bribe. Such independent witness is sometimes called “shadow witness” since he goes with the complainant like a “shadow” to witness the bribe-taking.

Evidence of the shadow witness is quite important in view of the fact that he may be the only independent witness to the transaction of the demand and acceptance of bribe (complainant may generally be considered to be an interested witness, since he has an interest in seeing that the public servant is caught taking bribe).

     

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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 issue is covered directly under Section 119 of the Evidence Act, which is reproduced below:

“119. Witness unable to communicate verbally.—A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open court, evidence so given shall be deemed to be oral evidence:

Provided that if the witness is unable to communicate verbally, the court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed.”

Therefore, a dumb person is equally competent to be a witness in a court and his evidence will be recorded by court in accordance with the provisions of above section, and he can give his evidence in an intelligible manner, such as by writing or by signs and such evidence may have to be videographed.

     

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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 Criminal Procedure Code lays down that police officers who are superior in rank to the officer in charge of a police station (i.e., SHO) can exercise all of his powers in their areas. Section 36 of the Cr.P.C. is reproduced below:

“36. Powers of superior officers of police.— Police Officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station.”

In view of this, Superintendent of Police of a district, who is an officer superior to the officer in charge of a police station, has the same powers, and in particular, he has the power to investigate a case personally.

     

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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, a constable is also considered as a “police officer” for the purposes of Section 41 of the Criminal Procedure Code which gives power to arrest without warrant in certain cognizable cases in the situations mentioned therein.

Secondly, Section 55 of the Cr.P.C. (Procedure when police officer deputes subordinate to arrest without warrant) allows an officer in charge of a police station or an investigating officer to depute a subordinate police officer (including a constable) to make an arrest. Sub-section (1) of this section says: “When any officer in charge of a police station or any police officer making an investigation under Chapter XII requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant, he shall deliver to the officer required to make the arrest an order in writing, specifying the person to be arrested and the offence or other cause for which the arrest is to be made and the officer so required shall, before making the arrest, notify to the person to be arrested the substance of the order and, if so required by such person, shall show him the order.”

     

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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 question specifically mentions that no criminal case has been registered against the person and that only some General Diary entries have been made in the police station. Though it is not clarified in your question what those General Diary entries are, I presume that these are not in connection with commission of an offence and that no criminal case is pending in a court. If this is the actual scenario that the passport may generally be issued to such person and it should not be refused merely on this ground (i.e., of GD entries).

You may also see my detailed reply in another similar question (Can a person get passport during pendency of criminal case?), wherein I have mentioned in detail on what grounds a passport may be denied. Two of these grounds are:

“(f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India;

(g) that a warrant or summons for the appearance, or a warrant for the arrest, of the applicant has been issued by a court under any law for the time being in force or that an order prohibiting the departure from India of the applicant has been made by any such court;”

But, from the facts mentioned by you, it appears that these grounds are not applicable in your situation. Therefore, merely because some General Diary entries are made in a police station (which are not connected to commission of an offence), the issuance of passport may not be denied to the person concerned.

     

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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 need for contempt in such cases where fine (which is imposed as punishment) is not paid. Firstly, the fine amount can be recovered from property of the person concerned, and in fact, Section 70 of the IPC lays down that even the death of the person will not discharge his property from such liability.

Secondly, usually, wherever the sentence of fine is imposed, there is an accompanying order laying down that in default of payment of fine, the person concerned shall have to undergo further imprisonment for the term separately specified for this purpose. This is done under the provisions of Section 64 of the IPC. So the purpose which could have been indirectly achieved by contempt of court (because, ultimately, after conviction in a case of contempt of court, the accused may at most be sentenced to imprisonment, etc.) can perhaps be said to have been achieved directly through providing additional imprisonment in default of fine in the original order itself.

     

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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 are two options.

One is to challenge the order of granting bail on merits on the grounds that the bail was wrongly granted; it can be done under Section 482 of the Criminal Procedure Code before the high court.

Second option is to file application for cancellation of bail under Section 439(2) of the Cr.P.C. before the Sessions Court or the High Court. However, please remember that cancellation of bail is possible only if there is a violation of the terms and conditions on which bail was granted or on the ground that the accused on bail is likely to abscond or has absconded or he is trying to tamper with the evidence or he is trying to influence or threaten the witnesses, etc.

     

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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 8(2) of the Hindu Minority and Guardianship Act, 1956, lays down that the natural guardian of a minor shall not, without the previous permission of the court, (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or (b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.

Further, Section 8(3) of this Act lays down that any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.

In this regard, it may be pointed out that sub-section (1) of Section 8 of the above Act lays down that the natural guardian of a Hindu minor has power, subject to the provisions of Section 8, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor’s estate; but the guardian can in no case bind the minor by a personal covenant.

In the case of Vishwambhar v. Laxminarayan, (2001) 6 SCC 163 : AIR 2001 SC 2607, the Supreme Court has reiterated these legal principles.

Therefore, if you want to purchase two properties from the lady mentioned in your question, in which her two minor sons also have share, then ensure that she exercises her powers of sale on behalf of her minor sons in accordance with the provisions of Section 8 of the above Act, as mentioned above. In particular, she may need previous permission of the court before selling the share of the minor sons in the said properties.

     

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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 options before you in such a situation are as under:

• Filing an appropriate civil suit.
• Filing a police complaint of threats given to you, or of any offence committed by them depending on facts of your case. In addition to registration of offence, if any, committed, the police may also initiate proceedings for obtaining security from them for keeping the peace under Section 107 of the Cr.P.C.
• Filing a complaint before the Sub-Divisional Magistrate / Executive Magistrate under Section 145 of the Criminal Procedure Code, who have the power under that section to issue order in urgent cases of nuisance or apprehended danger. In fact, in a similar situation, in the case of Devendra v. State of U.P., (2009) 7 SCC 495, the Supreme Court has held that if any cause of action arose by reason of a threat of dispossession at the hands of the co-sharer or at the hands of the third party, recourse to legal action could always be taken and even a proceeding under Sections 144 and 145 Cr.P.C. would be maintainable.

     

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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]

Specimen handwriting is obtained using carefully created text which randomly includes words matching with those in the questioned document. These words appear suddenly in the text without context and giving no clue and little time to the person to change his handwriting so as to ensure that his natural handwriting may appear in the specimen / sample handwriting. An experienced police officer would usually take care in this regard. Anyway.

The best way to get the specimen handwriting of the person concerned is to get his old documents which would have been created in his natural handwriting. The police may try to search and seize such old documents written by that person and then send the same to the handwriting expert along with the questioned document.

Yet, another way could be to get some witness who could identify the handwriting of the person, and who is acquainted with he handwriting, in accordance with the provisions of Section 47 of the Evidence Act. As per Explanation to this section, “A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.”

So, you can try to use these alternatives in your case, to the extent possible.

     

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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 difficult to comprehend your question. Were you made respondent by the other party (land grabber) or it was only against the authorities? What was the prayer in that case? Are you referring to Order 7 Rule 5 of the CPC? What did you plead in that application? What is the prayer in the “stay order arji of oppositers” filed against 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.

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