[Dr. Ashok Dhamija]

Though your question is not that clear, it appears that you are perhaps referring to a scenario where the disciplinary proceeding is based entirely on documentary evidence and not on oral evidence of any witness.

Usually, it is necessary to introduce the documentary evidence through some witness so that the charged officer can cross-examine him, if he wants to. But, there are cases where the charged officer would not object to the documents being admitted in the proceedings, in which case it may not be necessary to call a witness to introduce those documents. This applies to cases where the charges are based on documentary evidence only, and it is generally said that a document speaks for itself. In fact, the Evidence Act (though, strictly speaking, it is not fully applicable in departmental proceedings) also lays down that a document has to be proved by its primary evidence, which means production of the document itself for inspection of the court.

Therefore, the answer to your question would depend on the facts and circumstances of each case. You may consult some legal expert by showing him all the relevant papers in your departmental proceeding to get a proper advice.

     

---

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 314(1) of the Criminal Procedure Code provides as under:

“Any party to a proceeding may, as soon as may be, after the close of his evidence, address concise oral arguments, and may, before he concludes the oral arguments, if any, submit a memorandum to the Court setting forth concisely and under distinct headings, the arguments in support of his case and every such memorandum shall form part of the record.”

It is seen from the above provision that you can submit your written arguments at the conclusion of the evidence recording in the trial, and before concluding your oral arguments.

     

---

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 should ask such type of questions to your advocate who only knows when the copy of order would be available and when formalities such as providing sureties, if any, could be completed. It is the duty of your advocate to answer such simple questions once you have engaged him. It is not possible for any outsider to answer such questions.     

---

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]

As per Section 2(1)(d) of the Consumer Protection Act, 1986, “consumer” is defined as under:

“(d) “consumer” means any person who,—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;

Explanation.—For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;”

Thus, the definition of “consumer” does not include a person who obtains such goods for resale or for any commercial purpose.

It is pertinent to point out that the Explanation to this definition clarifies that “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.

In this regard, in the case of Laxmi Engineering Works v. PSG Industrial Institute, (1995) 3 SCC 583, Supreme Court held as under:

“The National Commission appears to have been taking a consistent view that where a person purchases goods “with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit”, he will not be a ‘consumer’, within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly, with a view to obviate any confusion — the expression “large scale” is not a very precise expression — Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression “commercial purpose” — a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a ‘consumer’ but a person who buys a typewriter or a car for typing others’ work, for consideration or for plying the car as a ‘taxi’, can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of ‘self-employment’, such purchaser of goods is yet a ‘consumer’. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e by self-employment, for earning his livelihood, it would not be treated as a “commercial purpose” and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a “commercial purpose”, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz, “uses them by himself”, “exclusively for the purpose of earning his livelihood” and “by means of self-employment” make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer). As against this, a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person, would not be a consumer. This is the necessary limitation flowing from the expressions “used by him”, and “by means of self-employment” in the explanation. The ambiguity in the meaning of the words “for the purpose of earning his livelihood” is explained and clarified by the other two sets of words.”

In the case of Singhal Finstock (P) Ltd. v. Jaypee Infratech Ltd., 2012 SCC OnLine NCDRC 672 : [2012] NCDRC 672, decided by the National Consumer Disputes Redressal Commission New Delhi (NCDRC), the complainants had booked two apartments with the opposite parties in joint names and paid Rs. 8 lakh each. These residential plots were booked by the complainants for the residence of directors. In these circumstances, it was held by NCDRC that the complainants were not consumers and the complaint was held to be not maintainable and was dismissed accordingly. The purchase of the apartments was thus considered as for “commercial purpose”.

Likewise, in the case of General Motors India Pvt. Ltd. v. G.S Fertilizers (P) Ltd., 2013 SCC OnLine NCDRC 126 : [2013] NCDRC 112, it was held by the NCDRC that the case pertains to the purchase of goods admittedly for ‘commercial purposes’ since the car was purchased by a private limited company for its Managing Director.

In view of the definition of “consumer” in the said Act, and also in view of the above decisions, it should be clear that if a company or a partnership firm purchases a residential house for use of its employee or partner, as the case may, the same may be covered within the meaning of “commercial purpose” and, accordingly, for the purposes of purchase of such residential house, such company or partnership would not come within the definition of “consumer”. Accordingly, a complaint under Consumer Protection Act cannot be filed in such a situation, though other remedies (such as filing a civil suit) may still be available.     

---

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]

Once you have (or your advocate on record) filed the transfer petition in the Supreme Court and have also removed the filing defects, if any, then such transfer petition is regularly registered by giving it a proper number. Thereafter, usually it will take about 10 days to get listed before the judges. The transfer petition filed by you is on behalf of a woman, and usually the Supreme Court is liberal in favour of the women. Therefore, there are good chances that on the very first date of listing before the judges, a notice may be issued to the opposite party and stay may be granted on the proceedings in the divorce case filed by your husband.     

---

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 41 of the Cr.P.C. is not an offence. It lays down the procedure and the power of the police officers to make arrests in various types of offences. Though the arrest may be made under Section 41 of the Cr.P.C., the actual offence for which such arrest is made would be under some specific sections of IPC or some other relevant law, which you may have to check from the police.

Since Section 41 of the Cr.P.C. does not lay down any offence, there is no question of it being bailable or non-bailable. Whether the arrest made under this section relates to a bailable offence or a non-bailable offence would depend upon the offence for which such arrest has been made. Therefore, you will have to make enquiries about the offence for which the person concerned has been arrested and then to find out whether such offences bailable or non-bailable.

     

---

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 bank may file recovery suit against you for recovery of the loan amount due along with the interest. Some of the banks are also notorious for using strong-arm tactics by using goons to recover the loan amount; so, beware of that.

It may be advisable for you to continue repaying the instalments and/or negotiate with the bank for one-time settlement of the loan along with interest.

     

---

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]

Since it is your self acquired property, during your lifetime you have full rights over it and your sons cannot object to the disposal of property by you.

In order to transfer your share in the property to your wife, and to convert the joint ownership of the property into the full ownership of your wife in the said property, you can gift your 50% share in the property to your wife. Accordingly, prepare a gift deed and get it registered in the office of the sub registrar.

     

---

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 is not clear. It appears from your question that your father’s request for quashing of FIR has been dismissed by the high court and he has been directed to appear before the trial court and apply for bail.

If this guess is correct, then you have two options.

First is to challenge the above order before the Supreme Court.

Second option is to comply with the high court order and let your father appear before the trial court and file an application for regular bail, and face the trial in the case under Sections 420, 406 of IPC.

     

---

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 basis of the fresh incidents, you can file complaint with the police under Section 498-A of IPC and other appropriate sections of IPC.

In case you are planning to live separately from him, you have the option of filing an application under Section 125 of the Cr.P.C. for seeking maintenance. If needed, you can file an appropriate application / complaint under the provisions of the Protection of Women from Domestic Violence Act. If you have decided to finally part way with your husband, you may have to consider divorce petition, either on mutual consent basis or on your own.

     

---

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]

Clauses (b) and (c) of Section 19(3) of the Prevention of Corruption Act, 1988, are reproduced below:

“(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

*** ***

(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.”

It can thus be seen that the proceedings in a corruption case cannot be stayed either or the ground of any defect, etc., in the sanction order [clause (b)] or on any other ground [clause (c)].

In fact, in the case of Satya Narayan Sharma v. State of Rajasthan, (2001) 8 SCC 607 : AIR 2001 SC 2856, the Supreme Court has also held that the proceedings in a case under Prevention of Corruption Act cannot be stayed.

Accordingly, this order of the high court, of staying the trial, can be challenged in the Supreme Court. It is advisable and preferable that the Anti-Corruption Bureau should challenge this order, instead of you doing it is the complainant.

     

---

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]

For transfer of the case from one court to another within the same district, file an appropriate application before the Court of Session, which has the power to transfer such case from one court to another within his sessions division (which is, generally the district) under Section 408 of the Criminal Procedure Code.

     

---

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, it is possible to get the bail conditions modified or revoked. For this purpose, you may apply to the sessions court with appropriate grounds under Section 439(1)(b) of the Criminal Procedure Code, which lays down that “A High Court or Court of Session may direct … that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified”.

     

---

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, “warning” is not a penalty under the Central Civil Services (Classification Control And Appeal) Rules. The minimum penalty under the said Rules is that of “censure”.

In fact, there are directions of the government of India laying down that: “It is also clarified that in a case where disciplinary proceedings have been held under the relevant disciplinary rules ‘warning’ should not be issued as a result of such proceedings.  If it is found, as a result of the proceedings, that some blame attaches to the Government servant, at least the penalty of ‘censure’ should be imposed.”

Therefore, there are specific directions of the government of India that “warning” shall not be issued as a result of the departmental proceedings. These guidelines appear to have been violated in your case. You may bring this fact to the notice of the concerned disciplinary authority so as to take corrective action.

Further, as per the directions of the government of India, following is the difference between censure and widening:

“Distinction between Censure and Warning :-  

An order of “Censure” is a formal and public act intended to convey that the person concerned has been guilty of some blameworthy act or omission for which it has been found necessary to award him a formal punishment, and nothing can amount to a “censure” unless it is intended to be such a formal punishment and imposed for “good and sufficient reason” after following the prescribed procedure.  A record of the punishment so imposed is kept on the officer’s confidential roll and the fact that he has been ‘censured’ will have its bearing on the assessment of his merit or suitability for promotion to higher posts.

There may be occasions, on the other hand, when a superior officer may find it necessary to criticise adversely the work of an officer working under (e.g. point out negligence, carelessness, lack of thoroughness, delay etc.) or he may call for an explanation for some act or omission and taking all circumstance into consideration, it may be felt that, while the matter is not serious enough to justify the imposition of the formal punishment of ‘censure’ it calls for some informal action such as the communication of a written warning, admonition or reprimand, if the circumstances justify it, a mention may also be made of such a warning etc., in the officer’s confidential roll; however, the mere fact that it is so mentioned in the character roll does not convert the warning etc. into “censure”.  Although such comments, remarks, warning etc., also would have the effect of making it apparent or known to the person concerned that he has done something blame-worthy and, to some extent, may also effect the assessment of his merit and suitability for promotion, they do not amount to the imposition of the penalty of ‘Censure’ because it was not intended that any formal punishment should be inflicted.

The fact that a mere informal ‘warning’ cannot be equated to a formal ‘censure’, should not, however, be taken as tantamount to suggestion that a written warning may be freely given without caring whether or not it is really justified.  It is a matter of simple natural justice that written warnings, reprimands, etc. should not be administered or placed on an officer’s confidential record unless the authority doing so is satisfied that there is good and sufficient reason to do so.  Paragraph 6 of the Home Ministry’s Office Memorandum No. 51/5/54-Ests.(A) dated the 27^th January, 1955 provides detailed guidance in the matter of recording adverse remarks in confidential reports.  It may be reiterated here that in the discharge of the responsible task of recording the confidential reports, every reporting officer should be conscious of the fact that it is his duty not only to make an objective assessment of his subordinates’ work and qualities, but also to see that he gives to his subordinates at all times the advice, guidance and assistance to correct their faults and deficiencies.  If this part of the reporting officers’ duty has been properly performed there should be no difficulty about recording adverse entries because they would only refer to the defects which have persisted in spite of reporting officer’s efforts to have them corrected.  If after having taken such care the reporting officer finds that for the purpose of truly objective assessment mention should be made of any warning, admonition etc. issued, especially those which have not produced the desired improvement, it is his right and duty to so mention them.  In process of brining the defects to the notice of person concerned, where an explanation is possible an opportunity to do so should be given.  This cannot, however, be equated to formal proceedings required to be taken under Rule 55-A (now rule 16) of Rules, nor the warning given amounts to the imposition of a formal penalty.

[MHA OM No. 39/21/56-Ests.(A) dated the 13^th December, 1956].”

     

---

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 may have to challenge the penalty order in the appropriate court or administrative tribunal (if there is Karnataka State Administrative Tribunal). You can challenge it on grounds of appointment of an unauthorized inquiry authority in violation of the rules (as you have mentioned) and other available grounds.

In fact, you should have accepted the pension under protest. If you have done so, then that would be alright. Even otherwise, you have a right to challenge the penalty in the appropriate court or tribunal. You may take a stand that since the decision in appeal was taking so much time or was likely to take time, for your livelihood you had no option but to accept pension since salary had already been stopped due to the penalty of compulsory retirement; and that, as soon as the appeal has been dismissed, you are approaching the court / tribunal within the limitation period permissible. I think acceptance of pension should not come in the way of your challenge before the court / tribunal which is your right. Acceptance of pension was a fait accompli, since there was no option in the given circumstances, otherwise you would have lost salary as well as pension. Don’t let your opportunity of challenging it in appropriate court / tribunal go just like that, more so when you feel that you have good grounds to challenge the penalty order.

     

---

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.

[Author]

Posts