How to get rid of false domestic violence case? My wife has expressed her unwillingness to live with me and has exhibited rude and cruel behaviour towards me. Since the time of our marriage, she has never wished to reside in her matrimonial home. Despite my mother being a widow and providing her with all necessary facilities without any demands. My wife has falsely accused my mother of not extending help with household chores in the domestic violence case.
Not a single sentence in her complaint suggests that she has been subjected to any domestic violence. The issue appears to stem from her problem with my mother, as she has made baseless claims that my mother is lethargic, does not contribute to the household, demands money from me, and unnecessarily expends my earnings.
Upon reviewing your wife's domestic violence complaint, it appears that the necessary elements under Section 3 are absent.
Domestic Violence, as defined under Section 3 of the Domestic Violence Act, includes any act that causes harm, injury, or endangers the health, safety, life, limb, or well-being, whether physical or mental, of the aggrieved person. This includes physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse.
However, the complaint does not mention any instances of physical, emotional, sexual, verbal, or economic abuse. Additionally, the demand for money does not constitute economic abuse. As your mother is a widow, it is your responsibility to care for her and she has the right to claim assistance from her son without committing any offence.
This complaint needs to be quashed. To quash this false and frivolous complaint, it is recommended that you file a petition in the high court under Article 227 of the Constitution of India. The complaint does not disclose any act of domestic violence, and thus, it is liable to be quashed.
If the complaint lacks the necessary elements of Section 3 of the DV Act, it cannot proceed. The high court may consider quashing the complaint in this case.
My CMD has directed the authority to initiate a fresh disciplinary proceeding after quashment of earlier inquiry. The High Court has quashed the earlier departmental inquiry on the ground of lack of sufficient materials. When I served the certified copy of the high court's judgement the CMD was not willing to join me. He told me to join after a month. In the meantime the CMD has directed the AEO to initiate a fresh departmental inquiry. After receiving the order of the CMD a fresh inquiry has been initiated without furnishing a charge sheet. Moreover, the CMD has passed a fresh suspension order thereby suspending me.
To begin with, you ought to prepare yourself for filing a contempt petition in the high court. If the high court's judgment has stipulated a timeframe for reinstatement, it's imperative that you promptly submit a contempt application.
A serious mistake has been made by the CMD in initiating a new departmental inquiry without providing a new charge sheet. Furthermore, the suspension order is unlawful since there is no significant proof or material regarding the fresh misconduct.
You should also file a distinct writ petition and challenge the suspension order and initiation of de novo departmental inquiry. It is settled law that de novo inquiry cannot be initiated without issuing a fresh charge sheet.
The established legal principle that disciplinary proceedings commence only upon the issuance of a charge-sheet to the delinquent employee is beyond dispute. This has been affirmed in Union of India v. K.V. Jankiraman (1991).
The high court had nullified the previous inquiry, along with its subsequent effects. As a result, the current departmental inquiry cannot rely on the charge sheet from the previous one, rendering it unlawful and invalid. It's possible that the high court may nullify this new inquiry as well.
A formal departmental inquiry has been set up without holding a preliminary inquiry. I want to challenge the validity of the formal departmental inquiry. Is there any rule that preliminary inquiry is not necessary? My superior officer received some complaints against me. The complaints were related to the deliberate defaults in preparation of the electricity bills. In absence of preliminary inquiry I did not defend myself. It is a serious matter and I want to take legal recourse. Please suggest.
A preliminary inquiry is conducted solely in instances where the allegation made is of a weak nature. In such cases, the purpose of the preliminary inquiry is to establish the nature of the alleged default and to identify the alleged defaulter.
It is also conducted to collect prosecution evidence, assess the extent of the default, and bring relevant documents on record to facilitate a regular departmental inquiry.
However, if specific information is available, a preliminary inquiry is not necessary, and the disciplinary authority may order a departmental inquiry directly.
In your case, if the complaints against you were specific and substantial, a preliminary inquiry may not have been necessary, and the disciplinary authority may have ordered a departmental inquiry directly.
If you feel that you have not been given a fair opportunity to defend yourself, you can challenge the validity of the formal departmental inquiry. You can approach the appropriate authority and file a representation stating your grievances and the grounds on which you are challenging the validity of the inquiry.
In case the appropriate authority fails to address your representation, you have the option to file a writ petition in the High Court under Article 226 of the Constitution. However, before doing so, it is advisable to ensure that the department does not have sufficient evidence against you to initiate a formal departmental inquiry. Then you'll get relief from the high court.
SP has dismissed me from the service only on the basis of the preliminary report prepared by the C.O. of my circle. Some businessmen alleged that I used to extort money from them. They approached the superintendent of police for my transfer. But the SP refused. Thereafter, they approached the local MLA and MP for taking action against me. The MP has mounted pressure on the IG to take appropriate action against me on the complaint of those businessmen. I never extorted money from them. The allegation is false and frivolous.
This is made with the intention to transfer me from the XXXXX police station. Actually, I have strictly stopped the illegal business of those traders for importing raw ayurvedic goods from Nepal and exporting fertiliser and other goods from India. The CO city conducted a preliminary inquiry and submitted it to the SP. Thereupon the SP suspended me and later on terminated me from the service. Can I get justice from the High Court?
Termination from service is a major punishment. It cannot be inflicted without holding a formal departmental inquiry and affording you fair opportunity to produce evidence in your support and cross examine the witnesses. The SP has punished you only on the basis of a preliminary inquiry report, hence, the dismissal order becomes illegal.
You should immediately challenge the order of the superintendent of police either in the appeal or directly approach the High Court. It would be better to file a writ petition in the high court under Article 226 of the constitution.
Not holding a departmental inquiry before termination of your service is clearly violating the constitutional right conferred by Article 311 of the constitution. If it was possible for the SP to conduct a preliminary inquiry before terminating your service. So there was no justification for not conducting a formal departmental inquiry in your case for holding you guilty.
This is an example of arbitrary administrative action which is explicitly violating the principles of natural justice. A delinquent officer has the right to get a fair opportunity to defend himself against the allegation. The disciplinary authority was bound to hear your side (audi alteram partem) and afford an opportunity to present your case. This is a gross violation of the principles of natural justice. You should file a writ petition and definitely you'll get justice.
Whether departmental enquiry can be initiated on the basis of preliminary enquiry? There was a quarrel and misbehaviour of some police personnels on the issue of detailment of duty. In the heat of the quarrel some policemen became violent and started to pleting stones. The then SP constituted a team to do a preliminary inquiry and submit it to him within one week.
After receiving the preliminary report the SP has initiated departmental inquiry against the twenty nine policemen. We are opposing the formation of the committee because the inspector was very biassed and he was directed by the SP to furnish a report against selected policemen. Therefore, in the compliance of the said direction the inspector submitted the report against the selected policemen who were on the radar of SP.
Departmental inquiry may be setup on the basis of preliminary inquiry report. The preliminary inquiry report is a fact finding report which forms the basis of disciplinary action. An appropriate authority, after receiving of preliminary inquiry report, becomes capable for taking further action. But in your case, the policemen have committed serious misconduct, hence a thorough investigation was inevitable.
The preliminary inquiry report has several flaws, one of which is the failure to provide a fair opportunity to those who may be affected by the report. Although the police inspector may have recorded the statements of some policemen during the inquiry to prepare the report, this is not sufficient according to the law.
The individuals who were implicated in the report should have been given an opportunity to cross-examine those who alleged misconduct against them.
The inquiry officer was acting in the direction of the superintendent of police. This fact itself proves that the preliminary inquiry report is unjust, biassed and false.
The absence of a fair opportunity for delinquent policemen to cross-examine witnesses and present evidence in their support renders the preliminary report illegal. Therefore, initiating a departmental inquiry based on an unjust, illegal, and biased preliminary report is not in accordance with the law.
The initiation of a departmental inquiry solely on the basis of the preliminary report, without a thorough investigation, is also illegal, as established in the case of State of Maharashtra v. Saeed Sohail Sheikh, (2012) 13 SCC 192.
Is it mandatory to conduct preliminary inquiry in the disciplinary proceeding?
Question: The departmental proceeding has been initiated against me for the absence from duty. My senior officer has issued a show cause notice and invited my clarification. There was no proceeding before the issuance of the show cause notice. Is it a violation of the disciplinary proceeding? Is it mandatory to conduct preliminary inquiry in the disciplinary proceeding?
Asked from: Uttar Pradesh
Generally the show cause notice has been issued for inflicting the minor punishment. Therefore, it is not mandatory to conduct a preliminary inquiry before issuing a show cause notice. The preliminary inquiry is a fact finding inquiry to ascertain if there is sufficient grounds or materials to conduct a regular departmental inquiry.
A show cause notice contains the allegation along with sufficient materials to inform the delinquent officer to the nature of the allegation alleged against him. The delinquent officer will have an opportunity to submit his reply or explanation against the allegation. He can produce evidence in the support of innocence.
If the inquiry office has supplied the relevant materials along with the show cause notice then you should prepare a reply and submit it within the time period mentioned in the notice. In contrast you should ask from the inquiry officer to supply all the materials upon which the show cause notice is based.
You bear in mind that it is not mandatory to conduct a preliminary inquiry before the regular disciplinary proceedings. It depends upon the severity of allegation and gravity of punishment.
Can the department stay the disciplinary proceeding until the conclusion of the criminal case? I am facing a departmental inquiry. The department has lodged a first information report against me on the same allegation as made in the disciplinary proceeding. Both cases are running simultaneously and I am appearing and coordinating therein. I want to stay the criminal proceedings till the conclusion of the criminal trial. Is it possible? If yes, please suggest what the procedure is?
To request a stay of the departmental proceeding until the conclusion of the criminal trial, you can submit a representation to the head of the department, requesting that the disciplinary proceedings be kept in abeyance until the conclusion of the criminal case.
However, there is no hard and fast rule to stay the departmental proceedings till the final judgement of the criminal case. But in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. [(1999) 3 SCC 679 : 1999 SCC (L&S) 810] the Supreme Court has indicated some of the fact situations which would govern the question whether departmental proceedings should be kept in abeyance during pendency of a criminal case.
The Supreme Court has held that in these situations the departmental proceeding could be stayed.
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
If the department does not act on your representation to stay the disciplinary proceeding until the conclusion of the criminal case, you may move a writ petition in the High Court under Article 226 of the Constitution.
In the writ petition, you can request that the court may direct the department to stay the disciplinary proceeding until the conclusion of the criminal case.
If the court finds that the allegations in both proceedings are identical, it may direct the department to stay the disciplinary proceeding until the conclusion of the criminal case.
However, it's important to note that the court's decision will depend on the specific circumstances of your case and the facts presented before the court.
Can the department carry on the departmental enquiry even after acquittal in the criminal case which was filed on the basis of the departmental proceeding. I am working as an executive engineer in the Public Works Department. When I was posted in XXX some tenders were issued in respect of construction of the amusement park. Later on a departmental enquiry was constituted to examine the corruption in that amusement park. Therefore the principal secretary had ordered a disciplinary proceeding against me.
In the same case the principal secretary was also ordered to lodge First Information Report against me under the prevention of corruption act. In the trial of that Criminal Case the special Court found no evidence against me; therefore acquitted me from all charges. The state government preferred an appeal against judgement of the special Court.
The appellate court also dismissed the appeal of the state government. At present I am exonerated from the criminal charges. Despite that the department is not ready to drop the disciplinary proceeding. I want to know if I file a writ petition in the High Court, is there any possibility that the High Court mein direct the state government to top the department of proceedings on the basis of equator in criminal offences? Please suggest.
It seems that you are facing a disciplinary proceeding and have been acquitted of criminal charges in a separate case. If you feel that the disciplinary proceeding is taking too long and want to expedite the process, you can file a writ petition in the High Court requesting for a time frame to be fixed for the department to decide the case.
The High Court may or may not pass an order on the dropping of the departmental inquiry as the standard of proof in a departmental inquiry and a criminal trial is different. It's important to note that just because you have been acquitted of criminal charges, it doesn't necessarily mean that the Department doesn't have any evidence or material against you.
The purpose of a criminal trial is to punish the accused for the offence, whereas the purpose of a departmental inquiry is to maintain discipline and efficiency in public service. The standard of proof required in a departmental inquiry is lower than that in a criminal trial, and the rules of evidence are different.
Therefore, it's possible that the department may still have evidence or material against you that may warrant further action in the disciplinary proceeding.
That's correct. Even if you have been acquitted in the criminal case, it's still possible for the departmental inquiry to proceed and for disciplinary action to be taken against you if the department has evidence or material against you.
The High Court may not pass any order for dropping the departmental inquiry solely on the basis of your acquittal in the criminal case, as the standard of proof and rules of evidence are different in a departmental inquiry.
The departmental inquiry must follow its own due process, and the evidence presented in the inquiry will be evaluated according to its own merits.
Therefore, the outcome of the criminal case does not necessarily determine the outcome of the departmental inquiry.
Can the high court decide the mutation proceeding? I have purchased land and have been in possession since 2005. That land has mutated in my name. Now I want to change the purpose and use of the land from residential to commercial. Therefore, I have filed an application to the deputy collector to change the land use accordingly. During the proceeding a person came and objected to the mutation proceedings. He said that the land use cannot be changed. Actually I want to mutate the land in the name of my company.
My company will establish a centre for vocational courses in the residential house. When the land use is changed and property is mutated in the name of the company the business will get legal protection and other financial benefits. That person is my neighbour and he does not want to establish that educational institute.
You should file a counter affidavit in the high court. Mutation proceeding is a summary proceeding. The person aggrieved from mutation order has the right to file revision.
If an efficacious and alternative remedy is available to the petitioner he cannot file writ petition in the high court under Article 226 of constitution.
It is settled law that mutation does not confer any right and title in favour of any one or other, nor cancellation of mutation extinguishes the right and title of the rightful owner.
Normally, the mutation is recorded on the basis of the possession of the land for the purposes of collecting revenue.
In absence of infringement of any right, the petition cannot invoke Article 226. The writ petition is liable to be dismissed. Therefore, you should file a counter affidavit and pray for the dismissal of this writ petition on these grounds:
- This writ petition is an abuse of process of Article 226
- Petitioner has the efficacious and alternative remedy without exhausting that remedy he filed this writ petition
- Mutation does not confer any right or title
- No right of petitioner is curtailed or infringed by the order of mutation
- The high court has not power to entertain the dispute of private parties in its writ jurisdiction
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Son of the seller came and filed an objection against the mutation proceedings. My father purchased a piece of land for seventy lakh rupees. The seller after receiving of sale proceeds duly executed a sale deed. There was no dispute regarding the title and ownership of the seller. When the sale deed was executed, the son was also present in the registrar office. At that time he did not object to the transfer of property by way of sale deed. But after the execution of sale deed and presentation of application for the mutation of name of buyer he filed an objection. My advocate says that I should compromise with him and pay him some money to get the mutation. But I think that it is an immoral and illegal act. Why did I pay an additional price to the son of the seller who has no locus standi to challenge the mutation proceedings?
No need to pay any money to the son of the seller. The sale deed was executed in lieu of money. You have paid seventy lakh rupees as the sale consideration. The son of the seller has no objection about the receipt of sale proceeds. After the digestion of the sale proceeds he came into picture to extort money from you.
If a sale deed is duly executed by a person who had the right to sell that land, later on his legal heir cannot raise an objection against the mutation. The mutation proceeding is a summary proceeding. In this proceeding the Tehsildar has no power to adjudicate the rights and title of the land.
The Tehsildar shall mutate the name of buyer upon satisfaction of these facts:
- If the sale deed is duly executed,
- Seller has the right to alienate that land by sale,
- Name of seller is reflection in khatauni,
- Seller has sold his share of land,
- Buyer has paid full consideration,
- Including this land the buyer has possessed land within the ceiling limit of 12.5 acre
- Absence of restrictions on the sale of land like land belonging to scheduled caste (SC) or scheduled tribe (ST) community and the buyer is non SC/ST.
If the above said criterias are met, the Tehsildar shall mutate the land despite receiving the objection from the son of the seller against the mutation proceedings. The Tehsildar shall reject the objection because there is no legal impediment in sale deed, consideration, execution and transfer of land by sale.
Can I withdraw a fixed amount from the FD of my minor daughter? I filed a divorce case against my husband on the ground of bigamy and adultery. The family court has passed the decree of divorce. In that decree the court has ordered the husband to create a fixed deposit with tune to one crore. The husband has filed an appeal against the decree of family court.
He wanted to stay the implementation of the decree so as to escape from depositing the one crore. But in the appeal the high court had directed the husband to make a fixed deposit in favour of the minor daughter. That appeal has been pending since 2011. I want to withdraw ten lakh rupees for the higher study of my daughter. Can I withdraw ten lakh rupees from the FD of my minor daughter?
The appeal is pending in the high court. Therefore, you should move a miscellaneous civil application in the high court for withdrawal of money. The appeal has been pending since 2011. During the pendency of the appeal your daughter has completed her schooling and matured to get higher education.
In the interest of justice and for the sake of the welfare of your daughter the high court may order to withdraw that amount for the higher study of your daughter. That fixed deposit was made for the welfare of the daughter. Hence, the court can pass an order if satisfied that you have no source of income to bear the expenses of higher study.
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