While coming out stoutly in support of a judicial officer, we saw how as recently as on March 15, 2022 the Apex Court in a learned, laudable, landmark and latest judgment titled Abhay Jain vs The High Court of Judicature for Rajasthan and Anr. in 2022 LiveLaw (SC) 284 and Civil Appeal No.2029 OF 2022 [Arising Out Of Special Leave Petition [C] NO.6107 OF 2020] while reinstating a judicial officer observed quite clearly, cogently and convincingly that mere negligence cannot be treated as misconduct to terminate services of a judicial officer. The Bench comprising of Justice Uday Umesh Lalit and Justice Vineet Saran observed that disciplinary proceedings against a judicial officer is not warranted merely because a wrong order has been passed by him/her or the action taken by him could have been different. The Bench clearly held that, “Negligence cannot be treated to be misconduct – Relief-oriented judicial approaches cannot by themselves be grounds to cast aspersions on the honesty and integrity of an officer- Every judicial officer is likely to commit mistake of some kind or the other in passing orders in the initial stage of his service, which a mature judicial officer would not do. However, if the orders are passed without there being any corrupt motive, the same should be over-looked by the High Court and proper guidance should be provided to him. (Para 69, 54).” The Bench also made it clear that, “When the Government had, on enquiry, come to the conclusion, rightly or wrongly, that the appellant was unsuitable for the post he held on probation, this was clearly by way of punishment and, hence, the appellant would be entitled to the protection of Article 311(2) of the Constitution. (Para 50).”
To start with, this brief, brilliant, bold and balanced judgment authored by Justice Vineet Saran for a Bench of Apex Court comprising of himself and Justice Uday Umesh Lalit sets the ball rolling by first and foremost putting forth in para 2 that, “The appellant, who joined as a judicial officer in 2013, having been discharged from service in the year 2016, filed a Writ Petition in the Rajasthan High Court, which was dismissed by the impugned judgment dated 21.10.2019 passed by a Division Bench of the High Court. Aggrieved by the same, this appeal has been filed by way of this Special Leave Petition.”
To put things in perspective, the Bench then envisages in para 3 that, “Brief facts relevant for the purpose of the present case are that a notification inviting applications for District Judge Examination, 2013 was issued on 19.07.2011. The selection was to be made from amongst the candidates of Advocates’ Quota under the Rajasthan Judicial Services Rules, 2010 (for short ‘RJS Rules’). In the said examination, the result of which was declared on 25.05.2013, the appellant stood first. On 15.07.2013, the appellant was appointed to the post of Additional District Judge under Rule 43 of the RJS Rules read with Article 233(1) of the Constitution of India and as per the Rule 44 of RJS Rules, the appellant was to be on probation for a period of 2 years. By an order dated 16.07.2013, the appellant was posted as an Additional District & Sessions Judge No.2, Bharatpur, on which post he joined on 18.07.2013. Then on 05.05.2014, the appellant was posted as Presiding Officer, Labour and Industrial Tribunal, Bharatpur, on which post he joined on 06.05.2014. He was thereafter, by an order dated 24.02.2015, appointed as Sessions Judge, AntiCorruption Department (ACD), Bharatpur, on which post he joined on 25.02.2015.”
Truth be told, the Bench then reveals in para 4 that, “It was during his posting as Sessions Judge, Anti-Corruption Department, Bharatpur, that a bail was granted by the appellant, which is the genesis of the action which has been taken against the appellant.”
While elaborating on the facts, the Bench then discloses in para 5 that, “In a case under Section 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, three accused namely K.K.Jalia, Alimuddin and Irfan were arrested on 29.12.2014. The said K. K. Jalia, who was the Chairman of the Municipal Corporation, was alleged to have taken a bribe of Rs.5 Lakhs; Alimuddin, who was a Police Constable, was alleged to have taken a bribe of Rs.10 Lakhs; and Irfan, was a nonofficial also alleged to be involved in the case. On 08.01.2015, the predecessor of the appellant dismissed the bail of K. K. Jalia and the bail of Alimuddin was also dismissed on 03.02.2015. The Investigation Officer had sent a letter to the concerned department seeking sanction of prosecution against the said two accused, K. K. Jalia and Alimuddin on 18.02.2015. Charge sheet was filed against all the three accused on 23.02.2015. It was at this stage, on 25.02.2015, that the appellant was appointed as Sessions Judge, Anti-Corruption Department.”
Furthermore, the Bench then added in para 6 that, “Then on 04.03.2015, the second bail application of the accused Alimuddin was rejected by the appellant. The bail application of K. K. Jalia was rejected by the Rajasthan High Court on 11.03.2015. On 17.03.2015, the second bail application was filed by K. K. Jalia before the appellant. It is noteworthy that the Rajasthan High Court granted bail to the co-accused Irfan (who was a private person) on 16.04.2015, and then on 27.04.2015, bail was also granted to Alimuddin by the Rajasthan High Court.”
Adding more to it, the Bench then observes in para 7 that, “On the second bail application of K. K. Jalia filed on 17.03.2015, the Court fixed 20.03.2015 along with the main file. Then on 18.03.2015, on the main file the case was fixed for 31.03.2015 for filing of sanction of prosecution of K. K. Jalia and till then the judicial custody of remand was extended in the bail matter. On 20.03.2015, the bail matter was adjourned for 31.03.2015. On 31.03.2015, the bail matter was adjourned for 13.04.2015 and in the main file, 13.04.2015 was fixed for filing of prosecution sanction against K. K. Jalia and for arguments on cognizance. On 13.04.2015, on which date the appellant was on leave, the bail matter was again adjourned by the officiating Presiding Officer for 16.04.2015, and on the main file it was noted that no sanction against K. K. Jalia was received and since the appellant was on leave, the case was fixed for 27.04.2015 for filing of sanction of prosecution against K. K. Jalia. On 16.04.2015, a fresh application of bail was filed by the accused K. K. Jalia stating that he was arrested on 27.12.2014 and charge sheet was filed on 23.02.2015, but till date no sanction of prosecution as required under Section 19 of the Prevention of Corruption Act, 1988, had been given, and that the custody of the accused K. K. Jalia was illegal as the accused could not be detained for an indefinite period. On the said date the appellant, in his order, observed that from 23.02.2015 till date i.e. 16.04.2015, there was no document on the file which would indicate that any progress has been made with regard to grant or refusal of sanction, and accordingly, it was directed that such a progress report be filed with regard to the efforts of the Anti-Corruption Department for grant of sanction be submitted on 27.04.2015, and time was also granted to file reply to the bail application by the next date i.e. 27.04.2015. On 17.04.2015, the matter was placed with regard to the attestation of bail of Irfan, who had been granted bail by the Rajasthan High Court on 16.04.2015.”
Going ahead, the Bench then mentions in para 8 that, “On 27.04.2015, on the main file, the investigation officer sought time for filing of sanction against K. K. Jalia and 08.05.2015 was fixed and till then, the judicial custody and remand of K. K. Jalia and Alimuddin was extended. In the bail application of K. K. Jalia, which was also fixed for 27.04.2015 and was taken separately, two letters had been filed. One letter dated 24.04.2015 mentioned that a file for sanction of prosecution of K. K. Jalia was submitted to the State Government, and the other letter dated 27.04.2015, which was addressed to the appellant, mentioned that a meeting to discuss whether the prosecution sanction should be granted or not was held on 23.03.2015, but no decision had been reached, and thus, the file had been sent back to the State Government to take a decision in that regard and the same was still pending. It was also pointed out that the other co-accused Alimuddin (Police Constable) had been granted bail by the Rajasthan High Court on the same date i.e. 27.04.2015. The appellant heard the matter of bail of K. K. Jalia and granted bail to him by a detailed order. On 28.04.2015, the matter for attestation of bail of Alimuddin was taken on the main file as the Rajasthan High Court granted him bail on 27.04.2015. The sanction of prosecution of K. K. Jalia was also received on the main file on 28.04.2015.”
On the face of it, the Bench then states in para 9 that, “It appears from the record that the bail order in the case of K. K. Jalia was called for by the Rajasthan High Court on 27.04.2015 itself and on 02.05.2015 the appellant was directed by the Rajasthan High Court to submit his comments regarding the said order dated 27.04.2015. The appellant submitted his response/comments on 12.05.2015 stating therein that the fact of dismissal of bail by the Rajasthan High Court on 11.03.2015 was neither argued by the Counsel nor the copy of the order was filed or produced, even though time was granted to the prosecution on 16.04.2015 to file the reply to the bail application. In the said reply, it was admitted by the appellant that the fact of dismissal of the bail by the Rajasthan High Court came to his notice from the memo of the second bail application while he was dictating the bail order dated 27.04.2015, and it was stated by the appellant in his reply that since the order of the Rajasthan High Court dated 11.03.2015 was not produced before him, he had thought that there was definitely a change in circumstances from 11.03.2015 as the period of the custody of the accused was nearing four months and also that 48 days had passed from 11.03.2015 to 27.04.2015 and in the absence of prosecution sanction, especially when it could not be known as to when such sanction would be granted, the trial could not start. It was also stated by the appellant that other two co-accused, whose bail application had been rejected by him earlier, had already been granted bail by the Rajasthan High Court. After considering, the explanation of the appellant, the Chief Justice of the Rajasthan High Court directed to initiate departmental enquiry under Rule 16 of Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short ‘CCA Rules, 1958).”
It cannot be lost on us that the Bench then observes in para 47 that, “Moreover, it is not disputed that the ACRs were not communicated to him within reasonable time. In this context, a 3-Judge Bench of this Court in Sukhdev Singh vs Union of India [(2013) 9 SCC 566] has held that:
“In our opinion, the view taken in Dev Dutt [Dev Dutt vs Union of India] that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR-poor, fair, average, good or very good-must be communicated to him/her within a reasonable period.” (emphasis supplied)
Hence, in light of the above, the non-communication of the ACRs to the appellant in the present case is arbitrary and as has been held by this court in Maneka Gandhi vs Union of India [(1978) 1 SCC 248], such arbitrariness violated Article 14 of the Constitution of India.””
Quite forthrightly, the Bench then holds in para 50 that, “The present case of the appellant is squarely covered by the abovementioned Constitution Bench judgements of this Court. Since the Government had, on enquiry, come to the conclusion, rightly or wrongly, that the appellant was unsuitable for the post he held on probation, this was clearly by way of punishment and, hence, the appellant would be entitled to the protection of Article 311(2) of the Constitution. Moreover, in the facts and circumstances of the present case, the substance of the termination order reveals that the discharge was by way of punishment. Hence, the question that whether the action of non-confirmation of the appellant is in accordance with Rules 45 and 46 of the RJS Rules is answered in the Negative.”
Be it noted, the Bench then clearly holds in para 69 that, “In light of the above judicial pronouncements, we hold that the appellant may have been guilty of negligence in the sense that he did not carefully go through the case file and did not take notice of the order of the High Court which was on his file. This negligence cannot be treated to be misconduct. Moreover, the enquiry officer virtually sat as a court of appeal picking holes in the order granting bail, even when he could not find any extraneous reason for the grant of the bail order. Notably, in the present case, there was not a string of continuous illegal orders that have been alleged to be passed for extraneous considerations. The present case revolves only around a single bail order, and that too was passed with competent jurisdiction. As has been rightly held by this Court in Sadhna Chaudhary (supra), mere suspicion cannot constitute “misconduct”. Any ‘probability’ of misconduct needs to be supported with oral or documentary material, and this requirement has not been fulfilled in the present case. These observations assume importance in light of the specific fact that there was no allegation of illegal gratification against the present appellant. As has been rightly held by this Court, such relief-oriented judicial approaches cannot by themselves be grounds to cast aspersions on the honesty and integrity of an officer.”
It is also worth noting that the Bench then points out in para 70 that, “Additionally, the High Court in the impugned order has erroneously stated that there must have been some oral complaint which resulted in the explanation being sought by the Respondent. This, it is held, was based on conjectures and is in stark contravention to the proposition laid down in the above referred judgements, especially given the fact that the High Court had itself recorded that there was no written complaint against the appellant. Lastly, reliance placed by the High Court in the impugned order on Director Aryabhatta research Institute of Observational Sciences (supra) is misconceived as the facts of the said case are distinguishable on facts since in the said case, the enquiry was only a preliminary enquiry prior to the initiation of a formal inquiry and furthermore, there were many letters of the management regarding unsatisfactory performance, of which the delinquent officer was intimated in advance.”
Most significantly, the Bench then states what forms the cornerstone of this notable judgment in para 71 that, “To conclude, we are of the firm view that in the present case there was no material to showcase unsatisfactory performance of the appellant in terms of requirement under Rule 45 and 46 of the RJS Rules, 2010. Moreover, the appellant’s discharge was not simpliciter, as claimed by the respondent. The non-communication of the ACRs to the appellant has been proved to be arbitrary and since the respondent choose to hold an enquiry into appellant’s alleged misconduct, the termination of his service is by way of punishment because it puts a stigma on his competence and thus affects his future career. In such a case, the appellant would be entitled to the protection of Article 311(2) of the Constitution. Moreover, the adverse comments in the ACR for the year 2015 could not have been the basis on which the appellant was discharged from service. The appellant was never granted an opportunity to improve and there was no intimation to him about his performance being unsatisfactory. Importantly, no verifiable complaint was filed against the appellant that could form the basis of the disciplinary proceeding against him. After perusing all the relevant record, we hold that the appellant was competent to pass the bail order dated 27.04.2015 and that the Respondent has not been able to prove the presence of any extraneous consideration or ulterior motive on the part of the appellant. It should also be highlighted here that neither the bail order dated 27.04.2015 was ever challenged by the State before any Court of law, nor was any complaint received against the appellant regarding the said bail order. This is not the case where there are strong grounds to suspect the appellant’s bona fides. Even if appellant’s act is considered to be negligent, it cannot be treated as “misconduct”.”
Finally, the Bench then concludes by holding in para 72 that, “Accordingly, the Appeal is Allowed and the impugned order of the High Court dated 21.10.2019 is set aside and the discharge order dated 27.01.2016 is quashed. Keeping in view that the appellant has not worked as judicial officer after he was discharged, we direct that while the appellant be reinstated with all consequential benefits including continuity of service and seniority, but will be entitled to be paid only 50% backwages, which may be paid within a period of four months from today.”
In sum, the Apex Court has drawn the right, rational and robust conclusion for which it must be applauded. The Apex Court has very rightly held that mere negligence cannot be termed misconduct. Justice UU Lalit and Justice Vineet Saran deserves all the praise under the sun for doing justice with a Judge himself who clearly became a victim in this case even though he was never tainted with any allegation of corruption of any kind. All kudos to both Justice Lalit and Justice Saran for doing so and for not getting straightaway swayed by what the Rajasthan High Court held! Of course, all High Courts must adhere to what the Apex Court has held in this case so clearly, cogently and convincingly!
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Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren
On Monday, the Delhi High Court has stayed the proceedings initiated by Lokpal of India under the provisions of the Lokpal & Lokayuktas Act, 2013 against Jharkhand Mukti Morcha (JMM) Chief and Rajya Sabha MP Shibu Soren in connection with a disproportionate case of assets.
The bench comprising of Justice Yashwant Varma observed and has passed an order on Soren’s plea challenging the validity of the said proceedings, claiming that the same was ex facie bad in law and without jurisdiction.
In the present case, the proceedings were initiated by Lokpal of India pursuant to a complaint dated August 5, 2020 filed by BJP’s Nishikant Dubey. Therefore, it has been directed by the CBI to make a preliminary enquiry into the Complaint under section 20(1)(a) of the Lokpal and Lokayuktas Act, 2013. It was claimed by Soren that the said order was not served on him.
While claiming the complaint was false, frivolous and vexatious, Soren in his plea submitted that according to section 53 of the Act and there is a statutory bar against the Lokpal of India assuming jurisdiction to investigate or inquire into any Complaint made after the expiry of seven years from the offence alleged.
The plea reads that the initiation of the proceedings under the Complaint, or at the very least, continuation thereof, once it has been demonstrated by the preliminary inquiry that it pertains to alleged acquisitions prior to the 7-year period and is clearly barred by statute, without jurisdiction and the same is liable to be quashed.
Further, the petition filled submits that the maximum period of 180 days for completion of preliminary enquiry from the date of Complaint expired on February 1, 2021. In this backdrop, it has been stated that by this time, only on July 1, 2021, the comments were sought from Soren which is beyond the prescribed statutory period.
The plea adds that the final preliminary enquiry report was submitted by the CBI on 29.06.2022, about a year and a half after expiry of the 180- day period. Such purported report is void and null and non-est in the eyes of law and cannot be received or considered by the Respondent No.1.
Thus, the court took note of the order passed by Lokpal of India dated August 4, 2022 directing that proceedings under section 20(3) of the Lokpal Act be initiated to determine whether a prima facie case existed to be proceeded against Soren. It is Soren’s case that the order was passed without considering the preliminary objection on jurisdiction being raised by him.
In the said order, the court noted that all the Lokpal of India recorded was that the comments received from the petitioner were forwarded to CBI so as to examine and submit an enquiry report.
It was ordered by the court that the challenge to assumption of jurisdiction by respondent no. 1 (the Lokpal of India) has neither been answered and nor dealt with. Matters require consideration. Subsequently, there will be a stay of proceedings pending before the Lokayukta.
Accordingly, the court will now hear the matter on 14 December.
DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT
The Delhi High Court in the case Narender @ Lala v. State Of NCT Of Delhi observed and has set aside the orders of conviction for murder and sentence of life imprisonment awarded to a man in 2018 who was unrepresented by a lawyer before the Trial Court. Thus, the Delhi High Court has remanded the case back to the Trial Court for cross examination of certain prosecution witnesses.
The division bench comprising of Justice Mukta Gupta and Justice Anish Dayal observed and was of the view that there had been a grave miscarriage of justice to the man as when number of witnesses were examined, he was not represented by a counsel and that the legal aid counsel, who was present before Trial Court and was appointed on the same day and asked to cross- examine the witnesses on the same day.
On March, 2018, Narender was convicted for offence of murder punishable under section 302 of Indian Penal Code, 1860. On 4th May, 2018, he was sentenced by the Trial Court for life imprisonment and also to pay a fine of Rs. 10,000.
In the present case, the case of the prosecution was that the man had committed murder of his wife by strangulating her to death.
In a appeal, it was argued by the man that during the substantial course of trial, he was not represented by a lawyer and hence the trial in the absence of a lawyer had seriously prejudiced him. He thus sought recalling of all the prosecution witnesses and thereby ensuring a fair trial.
The Court observed that the manner in which the trial is conducted, there was a serious denial of fair trial to the appellant and the appellant is required to be given an opportunity to cross-examine the witnesses i.e., the witnesses examined in the absence of the lawyer, or the lawyer having been appointed on the same day from the legal aid and is asked to cross-examine the witnesses.
Further, the court remanded the back to Trial Court for cross-examination of ten prosecution witnesses. Also, the court directed the Trial Court Judge to follow due process of law and also to record the statement of the man under Section 313 CrPC and permit leading the defence evidence if so required.
The Court ordered that the case be listed before the learned Trial Court on 26th September, when Superintendent Tihar Jail will product the appellant before the learned Trial Court and the learned Trial Court is requested to expedite the trial and conclude the same preferably within four months.
SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT
The Supreme Court in the case Dr. B.R. Ambedkar Educational And Cultural Trust v. Hon’ble High Court Jharkhand And Ors. observed and has refused to entertain a plea challenging the non-inclusion of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes communities in the process of appointment of District Judges in pursuant to an advertisement issued in March, 2022 by the High Court of Jharkhand. The present petition claimed that the exclusion of reservation violates Jharkhand State Reservation Policy and constitutional guarantee under Article 16(4). Apart from this, it is also in derogation of a resolution being passed by the High Court vouching to implement reservation in the Jharkhand Superior Judicial Service.
The bench comprising of Justice D.Y. Chandrachud and the Justice Hima Kohli observed and has granted liberty to the petitioner to file a petition under Article 226 of the Constitution before the Jharkhand High Court.
The court while considering that the process of appointment as per the concerned notification is underway, Justice Chandrachud asked the petitioner to approach the High Court with respect to future appointments.
It stated that “For the future you can file a petition before the High Court… We will give you liberty to approach the High Court under Article 226 of the Constitution.”
The bench of Justice Chandrachud observed that the Decisions of the Administrative side of the High Court can be challenged before the judicial side of the High Court. You can move the High Court.
In the present case, a writ petition challenging a similar notification was filed in 2017 before the High Court, which was eventually dismissed. It was observed by the High Court that there is no duty vested in the authorities to reserve seats for all posts, more particularly in higher judiciary. Moreover, it had already initiated the appointment process, the High Court opined that it cannot alter the rules midway. Thus, the appeal filed before the Apex Court was also dismissed.
However, in 2018 the Full Court of the Jharkhand High Court had agreed in principle to grant reservation in the recruitment for Jharkhand Superior Judicial Service. The advocates belonging to the SC/ST/OBC communities in 2021 had made representations to the Chief Justice of the High Court requesting for the implementation of the Reservation policy in appointment of District Judges (direct entry from Bar)/ superior judicial service. The impugned notification was issued without incorporating reservation for SC/ST/OBC communities in March 2022.
Mr. Arvind Gupta, Advocate on Record has filled the present petition.
Right to contest election is not a fundamental right; it is only a right conferred by statute: Supreme Court
The Supreme Court in the case Vishwanath Pratap Singh vs Election Commission of India observed that the right to contest an election is not a fundamental right but only a right conferred by a statute.
The bench comprising of Justice Hemant Gupta and the Justice Sudhanshu Dhulia observed while dismissing a Special Leave Petition filed by Vishwanath Pratap Singh that an individual cannot claim that he has a right to contest election and the said stipulation violates his fundamental right, so as is required under the Act, to file his nomination without any proposer.
Also, the court imposed a cost of Rupees one lakh on Singh.
In the present case, Singh had first approached the Delhi High Court challenging a notification issued by Election Commission of India for election to Rajya Sabha after he was not allowed to file his nomination without a proper proposer being proposing his name. His contentions were rejected by the High Court that his fundamental right of free speech and expression and right to personal liberty has been infringed.
While dismissing the SLP, the Apex Court observed that the writ petition before the High Court was entirely misconceived.
The bench observed while referring to earlier judgments viz Javed v. State of Haryana, (2003) 8 SCC 369 and Rajbala v. State of Haryana (2016) 2 SCC 445 wherein it was stated that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute.
However, the Supreme Court in Javed (supra) had made the following observations: Right to contest an election is neither a fundamental right nor a common law right and it is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution of India that a right to contest election for an office in Panchayat may be said to be a constitutional right and a right originating in the Constitution and given shape by a statute. But even if, it cannot be equated with a fundamental right. It is stated that there is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or from holding, an elective statutory office.
It was held in Rajbala (supra) that the right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law which the parliament made.
Further, the court added that Singh did not have any right to contest election to the Rajya Sabha in terms of the law made by the Parliament.
The Court stated while dismissing the SLP that the Representation of People Act, 1950 read with the Conduct of Elections Rules, 1961 has contemplated the name of a candidate to be proposed while filling the nomination form. However, it cannot be claimed by an individual that he has a right to contest election and the said stipulation violates his fundamental right, so as to file his nomination without any proposer as is required under the Act.
Post-conviction compounding of offences is permissible: Himachal Pradesh High Court
The Himachal Pradesh High Court in the case Shri Kantu Ram v Shri Beer Singh recently observed that a court, while exercising powers under Section 147 of the Negotiable Instruments Act and can proceed to compound the offences even after recording of conviction by the courts below.
The bench comprising of Justice Sandeep Sharma observed in a case where the revision Petitioner, who was convicted under Section 138 of the NI Act by the Magistrate Court and was aggrieved by subsequent dismissal of appeal by the Sessions Court and had agreed to pay the amount due and settle the matter.
Thus, the petitioner had sought compounding of offences.
In the present case, the respondent admitted the factum with regard to receipt of the amount due from the accused and expressed that the prayer made on behalf of accused for compounding of offence can be accepted.
However, the High Court allowed the prayer and the offence committed by the Petitioner under Section 138 NI Act was ordered to be compounded.
The Court observed that the Reliance was placed on Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, wherein the Apex Court has categorically held that court, while exercising power under Section 147 of the NI Act and can proceed to compound the offence even after recording of the conviction by the courts below.
‘Pensionary benefits to employee, who is removed from service for misconduct, is not at par with those who retire on superannuation’
The Jammu and Kashmir and Ladakh High Court in the case Bashir Ahmad Wani v Jammu and Kashmir Grameen Bank and Another recently observed and stated that an employee who is removed from service for misconduct is not at par with those who is being retired on superannuation.
The bench comprising of Justice Sanjeev Kumar observed while dismissing the pension claim made by a former employee of the J&K Grameen Bank, who was removed from service in 2011.
In the present case, the petitioner had sought benefit of the J&K Grameen Bank (Employees) Pension Regulations, 2018 whereby provision was made for terminal benefits.
However, the court disallowed the claims on two grounds:
Firstly, that at the time of removal of the petitioner from service when there were no norms, rules or regulations providing for the benefit of pension to the employees of the respondent-Bank.
In the year 2011, the employees of the respondent-Bank were governed by the J&K Grameen Bank ( the Officers and Employees) Service Regulations, 2010… it is abundantly clear that it does not prescribe imposition of a penalty of removal along with the pensionary benefits.
Secondly, it was opined by the court that though the 2018 Regulations had been made applicable to those employees who were in service between 1st day of September, 1987 and 31st day of March, 2010 and the employees retired from the services of the Bank before 31st day of March, 2018, however, this leeway cannot come to aid of the Petitioner.
The Curt observed that the reason for finding that the Petitioner was not an employee who had “retired” on superannuation from the bank. Rather, he was “removed” for misconduct.
The Court stated that the regulations apply to those employees who retired from the service of the Bank before 31.03.2018 and not the employees who were terminated for misconduct. Viewed thus, the order of removal of the petitioner dated 02.09.2011 holding the petitioner entitled to terminable benefits and cannot, by any stretch of reasoning, be construed to be an order of removal with the benefit of the pension. Neither, the petitioner, at the time of his removal from service, nor with the promulgation of Pension Regulations of 2018, is entitled to the benefit of pension.
Accordingly, the court dismissed the petition.
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