by Shivendra Pratap Singh | Mar 5, 2025 | Service Matters
Disciplinary authority is not taking action on enquiry report in the last five months. An enquiry was initiated by the disciplinary authority on receiving an anonymous complaint. The said complaint was false and frivolous because the facts stated in that complaint were not related to my nature of job. I am an accountant and my job is to sanction bills and other finance related files after receiving recommendations from the tender and accounts department. there was a system to finalise the bill before sending it to my office for sanction. Two superior officers, one from the tender department and another from the accounts section clears the bill and sends it to my office through a special messenger and marking on the bill. My department has no relation in inviting tender and clearing final bills. The allegation was unrelated to the sanctioning of the bill. it was related to inviting tender. that enquiry officer has exonerated me therefore, the disciplinary authority is not taking any action. My promotion is affected because it has been sealed cover. Please suggest proper legal action.
Asked from: Uttarakhand
You should promptly file a writ petition in the High Court under Article 226 of the Constitution of India, seeking a writ of mandamus against the disciplinary authority. The petition should request the court to direct the disciplinary authority to issue a final decision on the inquiry report within a specified timeframe. If the disciplinary authority fails to comply with the High Court's directive, you may file a contempt application against them for non-compliance.
Disciplinary authority is bound to take final action on the outcome of enquiry report as early as possible. Causing inordinate delay in conclusion of departmental proceedings is violation of the fundamental right. Fair and speedy justice is a fundamental right under Article 21 of the constitution. Principle of speedy justice is also applicable on quasi-judicial proceedings. Departmental enquiry is a form of quasi-judicial proceeding. Hence, you should file a writ petition for commanding the authority to pass its decision as soon as possible preferably in a stipulated period of time.
Also read: Disproportionate punishment
by Shivendra Pratap Singh | Feb 25, 2025 | Family Dispute
Whether khula without the consent of the husband is valid in our country or not. My husband is living in the United States of America and does not want to give me divorce. I want to marry another guy who is working in my office in India. My husband neither wants to live with me nor pronounce talaq. He has only one intention to ruin my life by dragging me in marital status. In this situation my life became miserable. I am a childless mother and no one is here to help me. My boyfriend suggested I should take khula from mufti. Then I contacted a mufti who passed a fatwa of khula without the consent of my husband. Can I marry that guy after getting the fatwa? I tried to convince my husband to talk to the mufti ji and give his consent but he refused. He denied his consent and was also not ready to sign the fatwa. I have decided to marry that guy after the fatwa because my husband has made my life miserable.
Asked from: Andhra Pradesh
The consent of the husband is mandatory for khula because in this kind of divorce the wife gives a proposal for dissolution of marriage in return of something. The husband has the option to either accept or refuse that proposal. If the husband accepts that proposal the khula becomes effective.
If the husband's consent has not been received while passing fatwa of khula by the mufti, that fatwa is void. You are a legally wedded wife because your marriage is still subsisting.
If you marry in the prevailing situation, the marriage will be void and you may be prosecuted for the offence of bigamy. Therefore, you must not proceed further on the basis of the fatwa of khula. That fatwa is not a valid legal document.
It appears from the facts of your case that your marriage cannot be dissolved by mutual consent. In this situation you should consult with the Kazi for passing a judgment of khula after issuing notice to the husband. When the husband appears and gives his consent the Kazi will dissolve your marriage by passing a judgment of khula. That judgment (Kaza) will be a valid legal document for dissolution of marriage. Thereafter, you can marry that person.
Also read: Party cannot treat decree as void
by Shivendra Pratap Singh | Feb 24, 2025 | Family Dispute
Can the party treat decree as void if there is gross violation in passing of such a decree. I am a doctor employed in a central government instrumentality. I fell in love with a medical representative, finally we decided to marry. After three years of marriage, we sought divorce by mutual consent. After obtaining decree of divorce, we were living apart for few months but later we have been living together. Now we have decided to get a child. There is no problem between us and decree was sought just after the objection raised by the husband's family. I belong to SC category and my husband belongs to General category. He wanted to settle the dispute with his family, so we filed divorce petition. Now we are living in a live-in relationship. For our point of view that decree is void because we love each other and carried on our marital relationship even after the decree of divorce. My husband says that our divorce is not effective because we are living as a spouse. But I want to know whether the party can treat decree as void if it was obtained by the collusion of the parties.
Asked from: Tamil Nadu
A decree passed by a competent court, even if it is void in law, remains valid unless and until it is set aside by a competent court. A void or voidable order is generally not considered non est (nonexistent) because the court did not err in its jurisdiction when passing the decree. In M. Meenakshi v. Metadin Agarwal, (2006) 7 SCC 470, the Supreme Court has held that:
It is a well-settled principle of law that even a void order is required to be set aside by a competent court of law inasmuch as an order may be void in respect of one person but may be valid in respect of another.
The same principle was reiterated by the Supreme Court in Sultan Sadik v. Sanjay Raj Subba, (2004) 2 SCC 377, where it was declared that a void decree must be formally declared void by a competent court.
From these rulings, it is clear that even if a decree is void ab initio (from the beginning), the aggrieved party must obtain a declaration to that effect from a competent court. Such a declaration cannot be sought in collateral proceedings.
The court is not obligated to grant a decree of divorce merely because a suit for mutual consent divorce has been jointly filed by the spouses. In such cases, the court must be satisfied that mutual consent exists between the parties, based on tangible evidence that clearly demonstrates such consent. (See Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234).
You cannot widraw your consent after getting decree of divorce. That decree is binding upon you because you have proved that you both are agreed to live separately. Since you have been living together after that decree, your conduct will not automatically render that decree void.
In these situations, you have to set aside that decree by a competent court. It is settled principle of law that parties to the suit cannot treat divorce decree as ineffective if they continue to live together as husband and wife.
Hence, party cannot treat decree as void. In these circumstances you have to file an appeal for setting aside that decree because there was no free consent of wife and both parties have been living together after passing of divorce decree.
Also read: Impotency a ground of divorce
by Shivendra Pratap Singh | Feb 15, 2025 | Criminal Matter
Court acquitted the accused on medical examination report of doctor and did not look the other evidence. An offence committed when my brother was going to market. When he reached at Kapur Marg someone pushed him. Thereafter, altercation started between my brother and that person. At the same time few other people assembled near the place and threaten my brother. Somehow the quarrel stopped, and my brother returned to home. Few days after he came to know that it was a conspiracy of XXX. There was a dispute between my brother and XXX. My brother wanted to buy a land which was later on purchased by XXX. One day when my brother was stayed in his friend's home, XXX came through the terrace and assaulted my brother. FIR was lodged and XXX arrested. At the stage of trial, prosecution produced the medical opinion of doctor. Who says that injuries on the body of XXX was two days old. Whereas my brother had lodged FIR within one hour of incident and accused had been arrested within seven hours of lodging FIR. The neighbours and servant of his friend also stated that XXX was present and assulted the complainant. They told that accused was coming out of that home. The trial court acquitted the accused only on the basis of medical examination report that injuries are two days old. Please suggest is there any possibility in appeal.
Asked from: Uttar Pradesh
I believe that the neighbors were made prosecution witnesses in your case. If those witnesses testified that they saw the accused coming out of the home, and the friend's servant, who was also present in the home, deposed that the accused came from the terrace and assaulted the complainant, then the eyewitnesses are establishing the prosecution's case. In such a scenario, the expert's opinion becomes immaterial. It is a settled principle of law that the court is not bound by the opinion of an expert.
The trial court has disregarded the statements of the eyewitnesses, whose evidence is crucial to the case. The prosecution has fulfilled its burden of proof once the offense is established through the testimony of eyewitnesses. The injuries sustained by the accused are irrelevant if there is no allegation that the complainant also inflicted injuries on the accused during the altercation.
The primary allegations are housebreaking and assault. If the evidence proves that the accused committed housebreaking and assaulted the complainant, there is no need to place emphasis on the accused's injuries. In Ghure Lal vs State of U.P. (2008) 10 SCC 450, the Supreme Court held that
A judgment of acquittal may only be reversed or otherwise disturbed for very substantial and compelling reasons. Such reasons exist when the trial court has ignored evidence, misread material evidence, or overlooked crucial documents.
In your case, the trial court has ignored the evidence of the eyewitnesses, which is vital to establishing the guilt of the accused. There is no justification for basing the judgment on the injuries sustained by the accused if there is no allegation of assault by the victim. The offense of housebreaking is fully established by the testimony of the servant and the neighbors. Therefore, there is a strong possibility that the appellate court may reverse the judgment of acquittal. I advise you to file an appeal as soon as possible.
Also read: Falsely implicated in the offence under Section 149 IPC
by Shivendra Pratap Singh | Feb 12, 2025 | Service Matters
Whether an educational institute is an industry or not. Can a clerk of an inter college file a case in labour court? I was working as a clerk in Inter College. A false allegation was made against me while I was incharge of an internal examination. The management and the principal of that college without serving a show cause notice arbitrarily terminated me from the job. I filed an application under the right to information act for taking information about the departmental enquiry initiated against me before termination from the service. In that application no information is provided by the public information officer of the intermediate college. Then I filed an appeal which is still pending. Meanwhile I filed a case in the labour court against the order of termination of my service. When the notice was served upon the principal he filed an objection that the court is not competent to admit my case because the educational institute does not fall under the definition of industry. The labour court has fixed a date for hearing on the maintainability of the case. Whether an educational institute is an industry under the Industrial Dispute Act.
Asked from: Uttar Pradesh
Non-teaching staff of educational institutions are considered workmen and fall under the jurisdiction of the Industrial Dispute Act. There is no dispute regarding the authority of the labor court in matters pertaining to workmen. Consequently, the provisions of the Industrial Dispute Act can be invoked for the redressal of grievances of workmen, as the labor court has jurisdiction over such matters.
In the case of Principal, Amar Shaheed Inter College v. Presiding Officer, Labour Court, 2005 SCC OnLine All 215, the Allahabad High Court held that
Though teachers may not qualify as workmen, other categories of employees such as clerks, sweepers, peons, and chaukidars undoubtedly fall within the definition of "workman" as outlined under the Uttar Pradesh Industrial Disputes Act, 1947.
Therefore, the objection raised by the opposing party is without merit. Your case has been filed before the appropriate court, which possesses the jurisdiction to adjudicate the dispute between the parties.
Also read: Whether giving reason for punishment is mandatory?
