In 1993, I got an assignment where I interacted with industry and industrialists. After the Kalyan Singh Government fell in 1992, consequent to the demolition of Babri Masjid, I was posted as Executive Director, Udyog Bandhu. The job was to promote industrialisation in a state recovering from the shocks of the demolition. I took this opportunity to understand the problems of industry. The idea was simple. If I took care of some issues, the word would spread around and promoting industrialisation would become more manageable. It worked. Despite what happened in 1992, investment started flowing into the State within a year. Between 1993 and 1995, large-scale investment was made by companies like Honda and Daewoo. UP was now competing with Maharashtra and Gujarat in attracting investments. I also got an opportunity to interact with many industrialists as the Chief Minister (Mulayam Singh Yadav) travelled to other states to invite investors.
The next opportunity came when I took over as Export Commissioner in the Ministry of Commerce, Government of India. The office was primarily to promote exports from the country. Here too, I adopted the Udyog Bandhu strategy to solve problems of exports. It worked yet again. I got an opportunity to meet with some of the most exemplary exporters from the country.
On being promoted, I could stay in the Ministry as Joint Secretary. However, I chose to take over as Chairman, Agriculture and Processed Food Products Export Development Authority (APEDA). This turned out to be an amazing experience as we worked in tandem with the industry to sort out the ‘Basmati’ intellectual property rights issue.
After a stint of three years in the State, I returned to the Government of India. On this occasion, I was posted as Director General, Labour Welfare, in the Ministry of Labour and Employment. For seven long years, I hardly had any interaction with the industry. It changed after that, as I was asked to head the newly created Project Monitoring Group (PMG) in the Cabinet Secretariat. The objective was to fast-track projects with Rs 1000 crore or more investment. So, it was back to intensive interaction with the investors yet again.
Finally, as Secretary, Coal, Government of India, I saw the good, the bad and the ugly part of the industry.
The industrialists knew that I would travel any distance to address their genuine concern. Barring a solitary experience as Coal Secretary, I do not recall a single instance when any industrialist approached me for an issue that he thought was contrary to the provisions of law or rules. It was a healthy relationship, and I loved every moment of it.
Many of my friends and colleagues warned me that none of these industrialists would respond to one’s messages when one was not in a position to help them on account of being out of ‘power’. It did not matter to me because, in any case, I was not expecting anything from them. However, my experience post superannuation has been an enjoyable one. Barring one exception, every industrialist I sent a message to responded to my message.
First on my long list of association with industrialists is Naveen Jindal, Chairman, Jindal Steel and Power. As Coal Secretary, I did everything I could do to ‘harm’ his companies because I thought he was wrong. He was one of the ‘winners’ of the bid for a coal block critical to his industry, and the bid was not accepted. If I were him, I would never have forgiven Anil Swarup. However, Naveen Jindal turned out to be much taller than I thought he was. After my superannuation, he picked my brains on the future strategy for his company without expecting me to influence any government decision (he knew that I would not do that). He even offered me the chair of one of his companies. I politely turned down his offer, but my respect for him grew.
I met Kumaramanglam Birla for the first time in 2005 when I was Managing Director, Pradeshiya Investment Corporation Uttar Pradesh (PICUP). In this capacity, I was on the board of Indo Gulf Fertilizer which he chaired. I was impressed by his humility and candour. He was extremely polite but decisive. I never thought I would meet him again which, however, I did in 2014 when he dropped into my office (PMG) along with a couple of CEOs to discuss a few problems his companies were facing. When he saw no file on my table, he confessed that it was the first time he saw an officer’s table without a file. I explained that since the entire office and files had been digitised, there were no hard files. Duly impressed, he asked his CEOs to see how it could be replicated in his companies. I did have an occasional chat with him on the phone as Secretary, Coal, but that was all. Post-retirement, I had a problem regarding the maturity of an insurance policy that the Birla Group offered. As the issue was not resolved and I was getting frustrated, I messaged Kumaramanglam Birla. His response was prompt. He was not directly associated with the issue at hand. I do not know what he did, but I got my maturity within 48 hours. Here was the head of one of the most prominent groups of industries responding and delivering when he could have easily chosen to ignore the issue. I was of no consequence to him now.
The Jaipurias, Shishir and Sharad, come from my home state, Uttar Pradesh. I had interacted with them on several occasions during my career. However, more intensive interaction happened during the last couple of years of my career when I took over as Secretary, School Education. How they are carrying forward the legacy of their ancestors is genuinely incredible. Now both have them forayed big-time into education. Shishir has recently launched STTAR (Saamarthya Teachers Training Academy and Research), a much-needed initiative. I had occasion to visit some of the facilities and institutions they had created before and after superannuation and was impressed. It was heartening to note that there was no difference in their attitude towards me on either side of my retirement. Both of them find an opportunity to pick my brains on issues relating to school education. However, it makes me wonder whether I have anything worthwhile to offer them with just 20 months of experience in the education sector. It is always a pleasure to interact with them whenever the occasion arises.
While implementing RSBY (National Health Insurance Scheme), I met Sanjeev Shriya, Founder Director of Smart Chip. The scheme was cashless, paperless, and portable. The smart card technology was limited to Sim Cards, Credit and Debit cards. The cards under RSBY were to be distributed to the poor across the country, and the required number was huge. In one of the Seminars, I came across Sanjeev, who had an extremely positive attitude towards resolving issues. He helped us extensively in implementing the scheme in 2008 and the relationship endured even after I changed assignments and superannuated. Sanjeev continues to be a very active member of Nexus of Good (described later in the book).
During the course of my journey as a Civil Servant, I came across many more stalwarts from the industry (outlined in the following article) who came in touch with me when I was an officer but continued to be associated when I ceased to be an officer.
to be continued
(With excerpts from “No More a Civil Servant”)
Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Offic. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.
After a stint of three years in the state, I returned to the Government of India. On this occasion, I was posted as Director General, Labour Welfare, in the Ministry of Labour and Employment. For seven long years, I hardly had any interaction with the industry. It changed after that, as I was asked to head the newly created Project Monitoring Group (PMG) in the Cabinet Secretariat.
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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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