Long standing domestic dispute constitutes ‘mental cruelty’ to spouse who intends to live in peace: MP HC - Business Guardian
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Long standing domestic dispute constitutes ‘mental cruelty’ to spouse who intends to live in peace: MP HC

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While dissolving a marriage on an appeal that was filed by the husband alleging cruelty at the hands of his wife, the Madhya Pradesh High Court in a recent, remarkable, refreshing, robust and rational judgment titled Rajesh Bhoyale vs Smt Mahadevi in First Appeal No. 1172/2019 that was delivered finally on March 29, 2022, observed clearly, cogently and convincingly that a long-standing dispute itself is mental cruelty to a party who intends to live in a domestic relationship and peace. The Bench of Justice Sheel Nagu and Justice Anand Pathak observed thus as it allowed the appeal filed by the appellant-husband against the judgment of the Family Court, Gwalior rejecting his application under Section 13 (1)(ia) of the Hindu Marriage Act,1955 seeking a divorce. Very rightly so!

To start with, this learned, laudable, landmark and latest judgment authored by Justice Anand Pathak for a Division Bench of Gwalior Bench of Madhya Pradesh High Court for himself and Justice Sheel Nagu sets the ball rolling by first and foremost putting forth in para 1 that, “The present appeal is preferred under Section 19 of the Family Court Act, 1984 against the judgment and decree dated 27-03- 2019 passed by the Link Family Court, Gwalior whereby the application preferred by the appellant/applicant/husband under Section 13(1)(iA) of Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”) has been rejected.”

While elaborating the facts of the case, the Bench then states in para 2 that, “Precisely stated facts of the case are that marriage of appellant and respondent was solemnized on 22-02-2004 according to Hindu Rites and Rituals. After marriage, respondent/wife insisted to live separately and in order to maintain domestic peace, after 6 months of marriage, appellant and respondent started living separately. Despite living separately, respondent/wife used to quarrel with appellant and left for her maternal home without any information. She did not take any interest in household work. Out of their wedlock two children born but due to negligence on part of wife, one child died and only one survived. Respondent/wife used to talk on mobile for hours together and used to move with unknown persons during late night in city. Thus, domestic incompatibility prevailed between the parties which led to filing of application under Section 13 of the Act seeking divorce.”

It deserves mentioning that the Bench then notes in para 3 that, “One fact deserves mention is that respondent/wife did not appear in the trial Court and remained ex parte. That fact has been mentioned in para 5 of the judgment. Before this Court also, notice was issued for service of respondent through RAD mode earlier vide order dated 05-07-2019, but same returned unserved. Thereafter vide order dated 26-08-2019 process fee by RAD mode was directed to be given for service and same was received by the respondent but she did not prefer to appear, therefore, matter was heard in absence of respondent.”

To put things in perspective, the Bench then after hearing the learned counsel for the appellant at length and perusing the record as mentioned in para 4 then envisages in para 5 stating that, “In the instant case as per pleadings it appears that appellant filed application under Section 13 of Hindu Marriage Act with specific allegations that his marriage was solemnized on 22-02- 2004 at Gwalior and at relevant time appellant was living along with his parent but soon after his marriage, his wife compelled him to change his house and therefore, appellant has to part his ways with his parents and had to live with his wife in nuclear family for domestic peace. From their wedlock, two sons were born, out of which one was 14 years of age at the time of filing of application and another son passed away at the age of 3 years due to alleged negligence of respondent/wife.”

Needless to say, the Bench then states in para 6 that, “Submissions meandered through different allegations wherein neither she cooperated in performance of daily household work, taking care of children or in respect of maintaining domestic peace.”

Simply put, the Bench then reveals in para 7 that, “According to appellant, she used to converse on mobile for hours together and whenever intercepted, reacted sharply and indulged into verbal spat. Allegations further move in respect of her movement along with some unknown persons in the city but same has not been established by the appellant through cogent evidence. It was also the allegation of appellant that she does not cooperate in cohabitation with the appellant and she always avoided him.”

To be sure, the Bench then discloses in para 8 that, “Appellant referred certain mediation proceedings also pertaining to year 2009 to 2015 at Police Station Inderganj and from the pleadings and evidence it appears that reconciliation proceedings have been held but of no avail. Even in earlier case services of mediation center of this Court were also availed and settlement was struck on 01-12-2015 in case No.857/2015 but soon thereafter things turned ugly.”

Truth be told, the Bench then enunciates in para 9 that, “All these allegations as referred above are being narrated in the divorce application and affidavit filed under Order XVIII Rule 4 of CPC by the appellant. His examination-in-chief was also duly recorded by the Family Court but since the respondent did not appear and remained ex parte, therefore, those allegations were not rebutted in any manner because nobody rebutted and cross-examined the witness on behalf of respondent/wife. Beside oral evidence, appellant filed copy of complaint dated 29-04-2011 Ex-P/2 addressed to Station House Officer, Police Station Inderganj in which he referred about the conduct of his wife. In the said complaint, it is surfaced that wife is extending threat to the appellant regularly and at times she indulged into physical violence also, intimidating him for dire consequences as well as for false implication etc.”

As we see, the Bench then observes in para 10 that, “Notice Ex-P/3 has also been exhibited by the appellant by which he issued legal notice on dated 08-10-2015 to his wife for seeking divorce, therefore, in all probabilities, respondent was well aware of the fact regarding domestic incompatibility shared by the couple and respondent knew the fact that appellant would file divorce proceedings against the respondent.”

As it turned out, the Bench then mentions in para 11 that, “Notice for mediation dated 15-10-2015 has also been exhibited by the appellant as Ex-P/5 in which he was directed to appear on 28-10-2015 at Mediation Center, High Court as pre-litigation mediation case. Appellant also referred the compromise deed Sulahnama (dated 01-12-2015) in which respondent was advised to live with her husband at Gwalior with further undertaking that she would not quarrel with her mother and father-in-law and if she goes to her maternal home on religious occasions then said arrangement shall be done by the appellant. It was also agreed upon that appellant would not have any objection if she talks on mobile to her parent.”

Of course, the Bench then states in para 12 that, “Vide Ex-P/7 appellant also exhibited the complaint sent to Station House Officer, Police Station, Inderganj and copy endorsed to Superintendent of Police on dated 15-05-2017. All these documents were exhibited by the appellant in support of his submission.”

Most damningly, the Bench then clearly states in para 13 that, “From perusal of these documents and allegations as contained in appeal, divorce application and affidavit, it appears that for a considerable period of time appellant and respondent shared domestic incompatibility and conduct of the respondent wherein she constantly for more than fifteen years or since 2004, caused irritation, threat, intimidation and avoiding cohabitation on the pretext or the other collectively entitled the appellant to get the decree of divorce.”

Furthermore, the Bench then states in para 14 that, “When appellant specifically pleaded about the behaviour of respondent for last more than 15 years and different stages of dispute, reconciliation and complaints from time to time were referred which indicate that both shared domestic incompatibility.”

While citing the relevant case law, the Bench then observes in para 15 that, “So far as mental cruelty is concerned judgment of Apex Court in the case of Dr. N.G. Dastane Vs. Mrs. S. Dastane, AIR 1975 SC 1534 is worth consideration. The relevant extract of the judgment is reproduced as under:

“The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse,. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances.”(1) The Court has to deal, not with an ideal husband and ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a nearideal one will probably have no occasion to go to a matrimonial court for, even if they may not be able to drown their differences, their ideal attitudes may help them over- look or gloss over mutual faults and failures. As said by Lord Reid in his speech in Gollins v. Gollins (2) ALL ER 966

“In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people.”

The said judgment still holds the field and is source of wisdom time and again in respect of mental cruelty.”

Adding more to it, the Bench then points out in para 16 that, “The aforesaid decision was referred to with approval in AIR 2002 SC 2582 (Praveen Mehta Vs. Inderjit Mehta), (2007) 4 SCC 511 {Samar Ghosh Vs. Jaya Ghosh}, (2010) 4 SCC 339 {Manisha Tyagi Vs. Deepak Kumar}, (2012) 7 SCC 288 {Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal}, (2013) 2 SCC 114 {U. Sree Vs. U. Srinivas}. In all these cases, the judgment rendered in the case of Dr. N.G. Dastane (supra) is relied upon. In the case of Samar Ghosh (supra), the Supreme Court has enumerated the illustrative instances of human behaviour which may be relevant for dealing with the cases of mental cruelty:

“No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) ** ** **

(iii) ** ** **

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) ** ** **

(viii) ** ** **

(ix) ** ** **

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) ** ** **

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) ** ** **

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”

It cannot be glossed over that the Bench then minces no words to state unequivocally in para 17 that, “It is equally well settled in law that lodging of false complaint amounts to cruelty {See: (2014) 7 SCC Malathi Vs. B.B. Ravi, (2013) 5 SCC 226 K. Shrinivas Rao Vs. D.A. Deepa, (2014) 16 SCC 34 K. Shrinivas Vs. Ku. Sunita and AIR 2003 MP 271 Johnson M. Joseph alias Shajoo Vs. Smt. Aneeta Johnson)}.”

It is worth noting that the Bench then remarks in para 18 that, “If the aforesaid pronouncements are tested on the anvil of present factual setup then it appears that for very long time parties shared domestic dispute and irritability and mental cruelty inflicted by the wife over her husband through her conduct and through her denial for cohabitation. In absence of any cross-examination or rebuttal, allegations of appellant assume importance.”

For sake of clarity, the Bench specifies in para 19 that, “Although maintenance amount/alimony is not subject matter in the present case but since respondent/wife is not before the Court, therefore, question of maintenance amount/alimony is left open and it is made clear that she may be at liberty to seek maintenance amount/alimony in accordance with law.”

Resultantly, the Bench then hastens to add in para 20 that, “Cumulatively, it appears that Family Court erred in rejecting the application for divorce preferred by the appellant whereas divorce decree ought to have been passed in the case. Long standing dispute itself is a mental cruelty to a party who intends to live in domestic relationship and peace.”

Finally, the Bench then concludes by holding in para 21 that, “Resultantly, the appeal stands allowed. The impugned judgment and decree dated 27-03-2019 passed by the Link Family Court, Gwalior is set aside. Application under Section 13 of the Act stands allowed. Appellant is entitled to get divorce from his wife, respondent herein. Decree be drawn accordingly.”

In a nutshell, the Gwalior Bench of Madhya Pradesh High Court comprising of Justice Sheel Nagu and Justice Anand Pathak who delivered this extremely commendable judgment have made it crystal clear that long standing domestic dispute constitutes ‘mental cruelty’ to spouse who intends to live in a domestic relationship and peace. So it is a good ground for obtaining divorce. Accordingly the divorce is granted thus to the appellant-husband by allowing his appeal which he had filed against the Family Court, Gwalior which had rejected his application under Section 13(1)(ia) of the Hindu Marriage Act 1955 seeking a divorce. Very rightly so!

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Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren

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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.

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DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT

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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.

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SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT

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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.

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Right to contest election is not a fundamental right; it is only a right conferred by statute: Supreme Court

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Don’t compare Turban, Kirpan with Hijab: SC

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.

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Post-conviction compounding of offences is permissible: Himachal Pradesh High Court

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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.

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‘Pensionary benefits to employee, who is removed from service for misconduct, is not at par with those who retire on superannuation’

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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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