Without mincing any words whatsoever and without beating about the bush, the Punjab and Haryana High Court in an extremely learned, laudable, landmark and latest judgment titled Devesh Yadav v. Smt. Meenal in FAO-M-208 of 2013 that was reserved on 30.03.2022 and then finally pronounced on 08.04.2022 has observed explicitly, eloquently and elegantly that if the wife is bent upon destroying the career and reputation of her husband by making complaints against him to his senior officers, then it would amount to mental cruelty and the same would entitle the man to divorce. It must be mentioned that the Bench of Justice Ritu Bahri and Justice Ashok Kumar Verma observed thus, while hearing a plea that was filed by an Indian Air Force (IAF) personnel who sought a decree of divorce on the ground of cruelty and desertion. Consequently, we thus see that the Court very rightly granted a decree of divorce and allowed the plea while noting specifically that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again.
To start with, this extremely commendable, cogent, composed and creditworthy judgment authored by Hon’ble Mr Justice Ashok Kumar Verma for a Division Bench of Punjab and Haryana High Court comprising of himself and Hon’ble Ms Justice Ritu Bahri sets the ball rolling by first and foremost putting forth in para 1 that, “The appellant-husband has come up in appeal before this Court seeking setting aside of judgment and decree dated 26.02.2013 passed by the District Judge, Rohtak, whereby petition filed by him under Section 13 of the Hindu Marriage Act, 1955 (for short ‘the HMA’) for dissolution of marriage by a decree of divorce, has been dismissed.”
To put things in perspective, the Bench then while elaborating on the facts of the case envisages in para 2 that, “Brief facts of the case are that appellant-husband filed a petition under Section 13 of the HMA for dissolution of marriage by a decree of divorce pleading therein that marriage between the parties was solemnized on 19.11.1998 and the same was registered on 23.11.1998 at Rohtak. At the time of marriage, appellant-husband was posted at Srinagar and they lived there upto March, 2000. Respondent-wife insisted that delivery of the child should take place at Rohtak, therefore, appellant acceded to her request and they went to Rohtak, where they were blessed with a son, namely, Jalaj on 24.08.1999. Thereafter, appellant was transferred to Jammu and parties lived together there upto April, 2002. The appellant remained posted at Jammu upto September, 2002 and then was transferred to Lucknow. It is alleged by the appellant-husband that from the beginning of the marriage, conduct, behaviour and attitude of the respondent-wife had been cruel, unwarranted and harsh and she used to pick up quarrels over trifles without any justifiable cause. The respondent deserted the appellant in April, 2002 and since then she had not returned to matrimonial home, whereas appellant had always been giving love and affection to the respondent and his son. In the beginning of December, 1999 appellant had taken the respondent along with his son to his place of posting at Srinagar and at the request of respondent her mother was also taken there and appellant provided proper food, clothing and every good lodging facility to the respondent, her mother and the son. In mid December, 1999, respondent suffered with breast abscess and she was got treated and operated at Army Hospital, Srinagar. In December, 1999, respondent was again operated at PGIMS, Rohtak, as the said ailment had re-developed. In April, 2002, respondent went to the house of her parents at Rohtak and thereafter in spite of best efforts of the appellant, she did not return to her matrimonial home. Appellant had also written several letters from the place of his posting requesting respondent and her parents to send the respondent and his son to him but in vain. Whenever, appellant came on leave at Rohtak and tried to meet his wife and the child, respondent’s parents did not allow him to meet them. Rather, Pawan, brother of the respondent, misbehaved with the appellant whenever appellant visited the house of his in-laws. Appellant also met the respondent in April, 2006 and requested her to accompany him and apprised her that he had booked seats for journey but she flatly refused to accompany him and threatened that if he tried to take her with him, she would commit suicide. It is further alleged that respondent failed to discharge her matrimonial duties and obligations and rather she ill-treated and mal-treated the appellant, caused physical and mental cruelty upon him, did not cooperate in married life and made his life hell. The respondent even failed to give any respect and regard to the parents of the appellant. When respondent expressed her desire to do a job, appellant agreed to her request and she had worked at Army Public School, Jammu, from July, 2001 to March, 2002. As in spite of best efforts made by the appellant, respondent did not join the matrimonial home, he was compelled to institute a divorce petition bearing No.58 of 2006. The matter was referred to Lok Adalat/mediation. During the course of these proceedings, respondent agreed to withdraw her complaint made to the Air Force authorities as well as the application for maintenance filed before the Senior Air Force Officer, on withdrawal of said petition by the appellant. The matter was compromised on the basis of separate statements dated 21.12.2008 and the petition filed by the appellant was dismissed as withdrawn. Appellant further alleged that respondent was working as lecturer in mathematics in Matu Ram Institute of Engineering and Management at Rohtak. Even during vacations she never joined the company of the appellant. Despite having given undertaking before the Court in her statement dated 21.12.2008, she had not withdrawn her complaint and maintenance application filed before the Senior Air Force Officer and did not join the company of the appellant at the matrimonial home at the place of his posting i.e. at M.E.T. Flight Air Force Station, Sirsa (Haryana). Therefore, appellant sought decree of divorce on the ground of cruelty and desertion.”
Needless to say, the Bench then observes in para 13 that, “It is undisputed fact that the marriage between the appellant and respondent was solemnized on 19.11.1998 and the same was registered on 23.11.1998. On 24.08.1999 a child, namely, Jalaj was born out of the wedlock. According to the appellant, in the month of April, 2002, the respondent left the company of the appellant and went to her parents’ house and the efforts made by the appellant to bring her back went in vain. It is the specific case of the respondent-wife that she never deserted the appellant nor caused any cruelty to him. The Family Court, considering the averments of both the parties, dismissed the petition filed by the husband under Section 13 of the HMA.”
As we see, the Bench then notes in para 14 that, “In view of the above circumstances, before proceeding with the appeal on merits, taking into consideration the fact that the parties were residing separately for about 12 years, vide order dated 28.04.2014, the parties were directed to appear before the Mediation and Conciliation Centre of this Court on 19.05.2014. However, on several occasions parties did not appear before the mediator. Therefore, due to lackadaisical approach of both the parties to settle the matter and due to expiry of the stipulated period, mediator referred back the matter to this Court on 14.08.2014. Thus, the appeal was admitted on 20.02.2015.”
In hindsight, the Bench then recalls in para 15 that, “Being fed up of the behavior of the respondent-wife, earlier also appellant had instituted a petition for divorce bearing No.58 of 2006, which was referred to the Lok Adalat. The matter was compromised on 21.12.2008 and on assurance of the respondent to withdraw her complaint made to the Air Force authorities and the application for maintenance filed by her before the senior Air Force officer, appellant had withdrawn the said petition for divorce.”
To be sure, the Bench notes in para 21 that, “Respondent wife also bent upon destroying the career and reputation of the appellant-husband as she made complaints against him to his senior officers in the Air Force.”
Briefly stated, the Bench mentions in para 22 that, “At this juncture, it is important to make reference to the judgment passed by the Hon’ble Supreme Court in Raj Talreja vs. Kavita Talreja, Civil Appeal No.10719 of 2013, decided on 24.04.2017, wherein, it was held that a false complaint was registered against the husband by the wife, after wife herself inflicted injuries on her person. In criminal proceedings, the husband had been acquitted and thereafter, proceedings against the wife were launched. On this account, the husband was held entitled to decree of divorce, on the ground of cruelty.”
Likewise, the Bench then also points out in para 23 that, “Likewise in Joydeep Majumdar vs. Bharti Jaiswal Majumdar, Civil Appeal Nos.3786-3787 of 2020, decided on 26.02.2021 (Law Finder Doc Id #1813316), where defamatory complaints had been made by wife to husband’s superior officers and the complaint so made by the wife was held to have affected the career progress of the husband, the Hon’ble Apex Court held that it amounted to ‘mental cruelty’ as the husband had suffered adverse consequences, in his life and career, on account of allegations, made by wife. The Family Court, had granted divorce to the husband, on the ground of cruelty. However, the High Court had reversed the finding of the Family Court. The Hon’ble Apex Court, while deciding the matter, referred to another judgment passed in Samar Ghosh vs. Jaya Ghosh, 2007 (4) SCC 511, wherein, it was observed that in order to make out a case of mental cruelty, no uniform standard can be laid down and each case will have to be decided, on its own facts. Further, in Joydeep Majumdar’s case (supra), it was observed as herein given:-
“11. The materials in the present case reveal that the respondent had made several defamatory complaints to the appellant’s superiors in the Army for which, a Court of inquiry was held by the Army authorities against the appellant. Primarily for those, the appellant’s career progress got affected. The Respondent was also making complaints to other authorities, such as, the State Commission for Women and has posted defamatory materials on other platforms. The net outcome of above is that the appellant’s career and reputation had suffered.
12. When the appellant has suffered adverse consequences in his life and career on account of the allegations made by the respondent, the legal consequences must follow and those cannot be prevented only because, no Court has determined that the allegations were false. The High Court however felt that without any definite finding on the credibility of the wife’s allegation, the wronged spouse would be disentitled to relief. This is not found to be the correct way to deal with the issue.
13. Proceeding with the above understanding, the question which requires to be answered here is whether the conduct of the respondent would fall within the realm of mental cruelty. Here the allegations are levelled by a highly educated spouse and they do have the propensity to irreparably damage the character and reputation of the appellant. When the reputation of the spouse is sullied amongst his colleagues, his superiors and the society at large, it would be difficult to expect condonation of such conduct by the affected party.””
Be it noted, the Bench then minces no words to state in para 26 that, “The conduct of the respondent-wife in filing a complaint making unfounded, indecent and defamatory allegations against her husband and parents-in-law indicates that she made all attempts to ensure that appellant and his parents are put in jail and the appellant is removed from his job. We have no manner of doubt that this conduct of respondent-wife has caused mental cruelty to the appellant-husband.”
Quite forthrightly, the Bench then holds in para 30 that, “In the present case, the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again. Further, not to grant decree of divorce would be disastrous for the parties.”
In retrospect, the Bench then recalls in para 31 that, “The three-Judge Bench of Hon’ble the Supreme Court in a case of Samar Ghosh (supra) passed the decree on the ground of mental cruelty but the concept of irretrievable breakdown of marriage has been discussed in detail referring the 71st report of the Law Commission of India.”
While referring to a relevant case law, the Bench then points out in para 32 that, “Hon’ble the Supreme Court in a case of K. Srinivas Rao vs. D.A. Deepa (supra) has observed that though irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, however, marriage which is dead for all purposes, cannot be revived by Court’s verdict, if parties are not willing since marriage involves human sentiments and emotions and if they have dried up, there is hardly any chance of their springing back to life on account of artificial reunion created by court decree.”
Adding more to it, the Bench then remarks in para 33 that, “Now, once the respondent-wife who is not staying with the appellant for the last about 20 years and is not ready to give mutual divorce to the appellant-husband, reference at this stage can be made to Naveen Kohli’s case (supra), which was a case of cruelty (physical and mental) where Hon’ble the Supreme Court considered the concept of irretrievable breakdown of marriage. In this case as well, the parties were living separately for the last 10 years and the wife was not ready to give divorce to the husband. Hon’ble the Supreme Court granted decree of divorce but directed the husband to pay a sum of Rs.25 lacs towards permanent maintenance. In para 58, it has been observed as under:-
“58. The High Court ought to have considered the repercussions, consequences, impact and ramifications of all the criminal and other proceedings initiated by the parties against each other in proper perspective. For illustration, the High Court has mentioned that so far as the publication of the news item is concerned, the status of husband in a registered company was only that of an employee and if any news item is published, in such a situation, it could not, by any stretch of imagination be taken to have lowered the prestige of the husband. In the next para 69 of the judgment that in one of the news item what has been indicated was that in the company, Nikhil Rubber (P) Ltd., the appellant was only a Director along with Mrs. Neelu Kohli whom held 94.5% share of Rs.100/- each in the company. The news item further indicated that Naveen Kohli was acting against the spirit of the Article of the Association of Nikhil Rubber (P) Ltd., had caused immense loss of business and goodwill. He has stealthily removed produce of the company, besides diverted orders of foreign buyers to his proprietorship firm M/s Navneet Elastomers. He had opened bank account with forged signatures of Mrs. Neelu Kohli and fabricated resolution of the Board of Directors of the company. Statutory authorityCompanies Act had refused to register documents filed by Mr. Naveen Kolhi and had issued show cause notice. All business associates were cautioned to avoid dealing with him alone. Neither the company nor Mrs. Neelu Kohli shall be liable for the acts of Mr. Naveen Kohli. Despite the aforementioned finding that the news item was intended to caution business associates to avoid dealing with the appellant then to come to this finding in the next para that it will by no stretch of imagination result in mental cruelty is wholly untenable.””
Most remarkably, the Bench then while taking a pragmatic stand minces no words to state in para 34 that, “It is well settled that once the parties have separated and separation has continued for a sufficient length of time and anyone of them presented a petition for divorce, it can well be presumed that the marriage has broken down. The Court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.”
Simply put, the Bench then recollects in para 35 that, “In the present case, the appellant-husband and the respondent-wife are living separately since April, 2002. Firstly, efforts were made to resolve the matrimonial dispute through the process of mediation, which is one of the effective mode of alternative mechanism in resolving the personal dispute but in vain.”
Finally, the Bench then concludes by holding in para 36 that, “Applying the ratio of the above-mentioned judgments to the facts of the present case and keeping in view the extraordinary facts and circumstances of the case, the appeal is allowed, judgment dated 26.02.2013 passed by the District Judge, Rohtak, is set aside and decree of divorce is granted accordingly in favour of the appellant-husband. Decreesheet be prepared accordingly. However, we direct the appellant-husband to make an F.D. of Rs 20 lakhs as permanent alimony in the name of the respondent-wife.”
In sum, the Division Bench of Punjab and Haryana High Court comprising of Hon’ble Ms Justice Ritu Bahri and Hon’ble Mr Justice Ashok Kumar Verma have taken a very balanced, bold and brilliant stand in this notable judgment. It has rightly, rationally and remarkably directed the husband to make an F.D. of Rs 20 lakhs as permanent alimony in the name of the respondent-wife so that she does not face financial distress. But it also simultaneously ensures that it allows the appeal of husband for being granted divorce by stipulating that if the wife is bent upon destroying the career and reputation of her husband by making complaints against him to his senior officers, then it would amount to mental cruelty and the same would entitle the man to 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
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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