My wife has filed three distinct petitions for only one remedy. She has filed an application under Section 125 crpc for maintenance. Again she has filed a civil suit under Section 18 Hindu Adoption and Maintenance Act for maintenance and Section 24 Hindu Marriage Act for interim maintenance. Whether she has a right to claim maintenance in more than one court case. Can wife file more petitions for maintenance?
The wife has a right to maintenance from her husband. Therefore, she can seek maintenance from the court in more than one application or petitions in different laws. Section 125 crpc (Code of Criminal Procedure), Section 18 HAMA (Hindu Adoption and Maintenance Act) and Section 24 HMA (Hindu Marriage Act) provide right to maintenance.
There is no bar to claim maintenance in different Acts [Rajnesh v. Neha, (2021) 2 SCC 324]. Hence, wife can file more than one petitions for maintenance. The court may direct the husband to pay maintenance to his wife irrespective that in the other proceedings he has already been directed by the court. Husband cannot take a plea that he shall not pay alimony because he has been paying the same in other proceedings.
But it is the duty of the wife to disclose the fact to the court that she has been receiving an amount of alimony in another proceeding. Therefore, the court shall consider that amount while deciding the quantum of maintenance in the present proceeding.
Sir, I am transferred by the lending department of North Western railway to the borrowing department of railway RDSO Lucknow wherein a major penalty charge sheet has been issued for misuse of Duty Card Pass without approval of the tour programme which was not possible during the period of Covid-19. Hence can I file an OA on the following grounds.
That Borrowing department has not henceforth informed the lending department to commencement of disciplinary proceedings. That the disciplinary authority has neither conducted preliminary enquiry nor issued any show cause notice before issuance of charge sheet. That the defense department required to prepare and then submit reply to the charge memorandum have not been supplied by the Disciplinary Authority so far.
That in the absence of my reply, the decision of Disciplinary Authority to proceed with further enquiry and appointing Inquiry Officer is correct or not? That the Railway Vigilance has not recorded the statement of my Nodal Officers who assigned duty and get reservation in trains as well as statement of TTE has not been recorded by the vigilance. The Disciplinary Authority has issued charge sheet with preset mind as adviced by vigilance officers. Kindly assess the success rate of my above grievances and advice about the Rules, Circulars or earlier decision of humble courts please.
Upon perusal of the facts of your case it seems that no opportunity of hearing afforded to you by the inquiry officer before submitting its report to the disciplinary authority. When an inquiry officer is appointed he has to hold a preliminary inquiry to make out a prima facie case against the delinquent officer.
In that inquiry the delinquent officer may appear and place his explanation and evidence either oral or documentary. If the delinquent officer produces any evidence, the inquiry officer is bound to accept.
In Amalendu Ghosh v. North Eastern Railway [AIR 1960 SC 992] the Constitution Bench of the Hon’ble Supreme Court has held that the purpose of holding a preliminary inquiry in respect of a particular alleged misconduct is only for the purpose of finding a particular fact and prima facie, to know as to whether the alleged misconduct has been committed and on the basis of the findings recorded in preliminary inquiry, no order of punishment can be passed.
In Champaklal Chimanlal Shah v. Union of India [AIR 1964 SC 1854] a Constitution Bench of the Hon’ble Supreme Court while taking a similar view held that preliminary inquiry should not be confused with regular inquiry. The preliminary inquiry is not governed by the provisions of Article 311(2) of the Constitution of India. Preliminary inquiry may be held ex parte, for it is merely for the satisfaction of the Government though usually for the sake of fairness, an explanation may be sought from the government servant even at such an inquiry.
So far as disciplinary inquiry under Railway Rules 1968 is concerned, the Disciplinary Authority can initiate regular inquiry after receiving imputation or misconduct against railway servant. Now after receiving a report of the vigilance department the disciplinary authority has initiated a regular inquiry by issuing a charge sheet and appointing an inquiry officer. Till this stage the proceeding is fair and legal under section 9 of The Railway Servants (Discipline & Appeal) Rules, 1968.
The delinquent officer has to appear before the inquiry officer and defend his case. During the defence he (delinquent officer) has the right to inspect any material/evidence which is in the custody of the department and also has the right to call the material witnesses for recording their statement.
If the inquiry officer refuses to record the evidence of a material witness or not providing evidence falling in the custody of the department, it violates the principle of natural justice i.e. not affording fair opportunity to the delinquent officer to deny his guilt.
In Laxmi Shankar Pandey v. Union of India AIR (1991) 2 SCC 488 the Supreme Court has held that the inquiries must be conducted in accordance with the principles of natural justice and that a reasonable opportunity to deny the guilt and to cross examine the witnesses produced and examined, should be given and that the enquiry should be consistent with the rules of natural justice and in conformity with the statutory rules prescribing the modes of enquiry.
You should move a representation to the show cause notice and request the disciplinary authority:
- To provide relevant documentary evidence which is necessary for the preparation of defence.
- Call material witnesses and record their statement.
- Keep the departmental inquiry in abeyance till the furnishing of evidence and recording of statement of material witnesses.
If the disciplinary authority does not take proper action on your representation then you should approach the Central Administrative Tribunal for the stay of proceedings and take decision on your representation within a stipulated time.
The cause of action is a bundle of facts which the court requires from the plaintiff to prove in order to get relief. This is the basis or foundation of bringing a lawsuit in the correct forum, court or tribunal. The court has three kinds of jurisdictions i.e. territorial, pecuniary and subject matter. Lack of any of them shall prohibits the court to proceed further.
Section 20 of the Civil Procedure Code defines cause of action. Mulla commenting on cause of action in the following words:
Cause of action.—The expression “cause of action” has acquired a judicially settled meaning. In the restricted sense, “cause of action” means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact by which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court.
P. Ramanatha Aiyar in Advanced Law Lexicon, 3rd Edn., Vol. 1, has defined the cause of action in the following words:
Cause of action” has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. “Cause of action” has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of the grievance founding the action, not merely the technical cause of action.”
Black's Law Dictionary defines the cause of action in the following words “A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.”
Cause of action in respect of writ
This Court had occasion to consider the cause of action in the context of Article 266 of the Constitution and has explained the expression “cause of action” in a large number of cases. In ONGC v. Utpal Kumar Basu (1994) 4 SCC 711 the Supreme Court has laid down that:
Clause (1) of Article 226 begins with a non obstante clause — notwithstanding anything in Article 32 — and provides that every High Court shall have power ‘throughout the territories in relation to which it exercises jurisdiction’, to issue to any person or authority, including in appropriate cases, any Government, “within those territories” directions, orders or writs, for the enforcement of any of the rights conferred by Part III or for any other purpose.
Under clause (2) of Article 226 the High Court may exercise its power conferred by clause (1) if the cause of action, wholly or in part, had arisen within the territory over which it exercises jurisdiction, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
On a plain reading of the aforesaid two clauses of Article 226 of the Constitution it becomes clear that a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories.
It is well settled that the expression “cause of action” means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the court.
In Chand Kour v. Partab Singh 1888 SCC OnLine PC 14; (1887-88) 15 IA 156 : ILR (1889) 16 Cal 98, at p. 102 Lord Watson said
the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour.
Question of jurisdiction shall be decided on the averments made in the plaint
Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition.
It was further held that the collocation of the words “cause of action, wholly or in part, arises” seems to have been lifted from Section 20 of the Code of Civil Procedure. This Court also quoted the definition of “cause of action” given by Lord Esher in Read v. Brown [Read v. Brown, (1888) LR 22 QBD 128 : 58 LJQB 120 : 60 LT 250 (CA)] in para 39. In paras 38, 39 and 41, the following was laid down : (Navinchandra N. Majithia case [Navinchandra N. Majithia v. State of Maharashtra, (2000) 7 SCC 640 : 2001 SCC (Cri) 215] , SCC pp. 654-55)
“Cause of action” is a phenomenon well understood in legal parlance. Mohapatra, J. has well delineated the import of the said expression by referring to the celebrated lexicographies. The collocation of the words ‘cause of action, wholly or in part, arises’ seems to have been lifted from Section 20 of the Code of Civil Procedure, which section also deals with the jurisdictional aspect of the courts. As per that section the suit could be instituted in a court within the legal limits of whose jurisdiction the ‘cause of action wholly or in part arises’. Judicial pronouncements have accorded almost a uniform interpretation to the said compendious expression even prior to the Fifteenth Amendment of the Constitution as to mean ‘the bundle of facts which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court’.
In Read v. Brown [Read v. Brown, (1888) LR 22 QBD 128 : 58 LJQB 120 : 60 LT 250 (CA)] Lord Esher, M.R., adopted the definition for the phrase “cause of action” that it meant : (QBD p. 131)
“every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.”
Even in the context of Article 226(2) of the Constitution this Court adopted the same interpretation to the expression ‘cause of action, wholly or in part, arises’ vide State of Rajasthan v. Swaika Properties (1985) 3 SCC 217.
A three-Judge Bench of this Court in ONGC v. Utpal Kumar Basu (1994) 4 SCC 711 observed that it is well settled that the expression “cause of action” means that bundle of facts which the petitioner must prove, if traversed to entitle him to a judgment in his favour. Having given such a wide interpretation to the expression Ahmadi, J. (as the learned Chief Justice then was) speaking for M.N. Venkatachaliah, C.J. and B.P. Jeevan Reddy, J., utilised the opportunity to caution the High Courts against transgressing into the jurisdiction of the other High Courts merely on the ground of some insignificant event connected with the cause of action taking place within the territorial limits of the High Court to which the litigant approaches at his own choice or convenience. The following are such observations : ONGC v. Utpal Kumar Basu, (1994) 4 SCC 711
If an impression gains ground that even in cases which fall outside the territorial jurisdiction of the court, certain members of the court would be willing to exercise jurisdiction on the plea that some event, however trivial and unconnected with the cause of action had occurred within the jurisdiction of the said court, litigants would seek to abuse the process by carrying the cause before such members giving rise to avoidable suspicion. That would lower the dignity of the institution and put the entire system to ridicule. We are greatly pained to say so but if we do not strongly deprecate the growing tendency we will, we are afraid, be failing in our duty to the institution and the system of administration of justice. We do hope that we will not have another occasion to deal with such a situation.
In Kunjan Nair Sivaraman Nair v. Narayanan Nair (2004) 3 SCC 277 the Supreme Court explained the expression “cause of action” and has quoted with approval the cause of action as defined by Halsbury's Laws of England in paras 16 and 17 : (SCC p. 286)
The expression “cause of action” has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in “cause of action”.
In Halsbury's Laws of England (4th Edn.) it has been stated as follows:” Cause of action” has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. “Cause of action” has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action.
Recently pointed out the Supreme Court in Nawal Kishore Sharma v. Union of India [Nawal Kishore Sharma v. Union of India, (2014) 9 SCC 329] , that the question, whether or not cause of action, wholly or in part, has arisen within the territorial limit of any High Court, shall have to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution of India. In order to maintain a writ petition, the petitioner has to establish that a legal right claimed by him has been infringed by the respondents within the territorial limit of the Court's jurisdiction.
Forum Non Conveniens
Forum non conveniens has been defined by P. Ramanatha Aiyar's Advanced Law Lexicon, 3rd Edn. in the following words:
Forum non conveniens.—The principle that a case should be heard in a court of the place where parties, witnesses, and evidence are primarily located.”
Black's Law Dictionary defines forum conveniens in the following words: “Forum conveniens.—The court in which an action is most appropriately brought, considering the best interests and convenience of the parties and witnesses.”
The Supreme Court in Kusum Ingots & Alloys Ltd. [Kusum Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254] has also referred to the principle of forum conveniens. The following was stated in para 30 : (SCC p. 264)
We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. [See Bhagat Singh Bugga v. Dewan Jagbir Sawhney [Bhagat Singh Bugga v. Dewan Jagbir Sawhney, 1941 SCC OnLine Cal 247 : AIR 1941 Cal 670] , Madanlal Jalan v. Madanlal [Madanlal Jalan v. Madanlal, 1945 SCC OnLine Cal 145 : AIR 1949 Cal 495] , Bharat Coking Coal Ltd. v. Jharia Talkies & Cold Storage (P) Ltd. [Bharat Coking Coal Ltd. v. Jharia Talkies & Cold Storage (P) Ltd., 1997 CWN 122
A writ petition can be filed where cause of action partly arises. Sir, I want to know can I file a writ petition in the High Court in whose territorial jurisdiction I am currently living? I applied for a post in the Reserve Bank of India. Final result has been published on its website. The head office of the RBI is in Mumbai. My reservation quota has been changed from OBC to UR.
Therefore, I am in the waiting list. I have brought in the notice of the RBI that my category has been wrongly mentioned in the final list including the waiting list. They have replied to my representation and stated therein that I have qualified in the UG category in the preliminary examination hence, your category shall remain unreserved. Can I challenge the representation in the Allahabad High Court?
The cause of action has partially arisen in Uttar Pradesh. Therefore, you can file a writ petition in the Allahabad High Court. You are currently living in Uttar Pradesh i.e. within the territorial jurisdiction of the Allahabad High Court. The Reserve Bank of India has wrongly changed your category. When you given a representation to the RBI for making a correction in the final list, it has been rejected. Therefore, the arbitrary or erroneous decision in making a final list has infringed your right.
The effect of the preparation of an erroneous list of finally selected candidates has occurred in Uttar Pradesh where one of the candidates is living. Furthermore, you received the reply of representation at the current place of residence. Hence, the Allahabad High Court has the jurisdiction over the matter because the cause of action, in part, arose in its territorial limits.
The Supreme Court in ONGC v. Utpal Kumar Basu, [(1994) 4 SCC 711] , has held that a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories.
You can challenge the representation and seek quashing of the final list by moving a writ petition in the Allahabad High Court under Article 226 of the constitution. According to Article 226(2) a High Court within whose jurisdiction or local limits any part or whole cause of action arises shall have the jurisdiction to pass any order or direction so as to enforce fundamental rights or any other right.
You have the right to seek quashing of the final list because it has infringed your legal right. You should file a writ petition because the cause of action has arisen within the territorial jurisdiction of the Allahabad High Court. Hence, your writ petition is maintainable. Opposite party cannot assail on the point of jurisdiction.
I have solemnised a second marriage in the subsistence of the first. It was because I have no children from the first marriage. Second marriage is prohibited in Hindus so I am afraid that the departmental inquiry may proceed against me for the bigamy.
My wife will not make any complaint against the solemnisation of a second marriage. But it may be possible that any colleague may complain about the second marriage. I cannot hide this fact because of a social gathering in my marriage ceremony. Can the department initiate disciplinary proceedings devoid of any criminal case?
I am trying to manage my family members and members of my in-law’s family to refrain from lodging any complaint against me. What is the legal remedy in this situation? Please help.
You have committed the offence of bigamy hence, it is a grould for initiation of departmental inquiry. Rule 28 of the Karnataka Civil Service Rules, forbids a government servant to solemnise second marriage without the permission of the Government. Your first marriage is subsisting at the time of solemnisation of the second marriage. Hence, you could not get permission from the Government.
In this situation if the government receives a complaint about the breach of Rule 28, then certainly a departmental inquiry may be set up against you. Your wife can file a complaint under Section 200 crpc for the offence of bigamy. If nobody complains then you may absolve yourself.
The departmental inquiry does not lay upon the initiation of a criminal case. If no criminal proceeding is initiated against you for the offence of bigamy it does not mean that the department cannot launch disciplinary proceeding for the bigamy.
Acquittal in a criminal case also does not bar the departmental inquiry for bigamy. Standards of proof are entirely different in the criminal trial and disciplinary proceeding. Being a Hindu, you could never have been granted permission by the Government to marry a second time because of your personal law forbidding such marriage i.e. bigamy.
I want to know whether reinstatement after the acquittal in a criminal case is possible. Some imported clothings was seized during the search operation. Those goods were kept in the godown operating under the control of the state government. After a few days all that goods were stolen and a criminal case was filed against me. Thereafter, a disciplinary proceeding was started against me and eventually I was terminated from the service. The trial court has acquitted me because the prosecution failed to prove the charges. What should I do for reinstatement after the judgement of the trial court?
The standard of proof in criminal and disciplinary proceedings are entirely different. If the decision of departmental inquiry (DI) has no impediment then you cannot challenge it. When the findings of DI are based upon clinching evidence and without any patent defect, you cannot claim reinstatement only because of acquittal in the criminal case.
The Supreme Court in Govind Das v. State of Bihar, (1997) 11 SCC 361 has held that “Since the standard of proof required to prove a charge of misconduct in departmental proceedings is not the same as that required to prove a criminal charge, the acquittal of the appellant in the criminal case, in these circumstances, could not, in our opinion, be made the basis for setting aside the order for termination of the services of the appellant passed in the disciplinary proceedings.”
The Supreme Court in A.P. SRTC v. Mohd. Yousuf Miya, (1997) 2 SCC 699 has held that “The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law.”
You have been found guilty in the disciplinary proceeding thereafter terminated from service, hence, you must claim reinstatement on the ground of illegality in the termination order. That illegality has nowhere connected with the findings of the criminal case. Thus, acquittal shall not form the basis of reinstatement.
If there is apparent error in the departmental proceeding then you can seek quashing of the termination order. These are the basic grounds to challenge the veracity of disciplinary proceeding:
- Termination order is unreasoned.
- Opportunity of hearing was not afforded.
- Evidence was wrongly admitted.
- Proceeding is held in the violation of principles of natural justice.
- Charge sheet was not duly served.
- The date and time of inquiry is not mentioned in the inquiry report.
When the finding of the departmental inquiry is erroneous then you should move a writ petition in the High Court under Article 226 of Constitution. The High Court after quashing the punishment order i.e. order of termination, shall reinstate you along with all consequential benefits.
Departmental inquiry has been initiated against me after the recording of FIR. That FIR is false and frivolous because it is very much influenced by the political vendetta. Since I am a General Manager (Project) and have issued several contracts to the contractors who have affinity to the particular political party. Now that political party is ousted from power. Therefore, an FIR has been lodged against me by making allegations of irregularity in disbursement of contract. Can departmental inquiry be initiated after the FIR?
If the first information report (FIR) is well founded and a prima facie case of corruption has been made out then the government has the power to initiate departmental inquiry on the basis of those facts mentioned in the FIR.
The FIR initiates or sets the criminal law in motion. Judiciary cannot interfere in investigation if FIR is based on solid grounds. (Emperor vs Khwaja Najeer Ahmed, AIR 1945 PC 18). Hence, the department can launch disciplinary proceedings on the facts of the FIR.
Therefore, if there is a prima facie case against you then you cannot challenge the validity of disciplinary proceedings. In this situation you can seek a stay of departmental inquiry on certain grounds.
Criminal and departmental proceedings can run simultaneously
The purpose and scope of both proceedings are different. They are not based upon the result of each other. If you get acquittal in the criminal case it does not give you a right to drop the departmental or disciplinary proceedings. Hence, both proceedings can run simultaneously.
In Kendriya Vidyalaya Sangathan v. T. Srinivas [(2004) 7 SCC 442] the Supreme Court has held that “Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law.”
If you think that the criminal proceeding (FIR) is false and frivolous, it does not confer a right to keep the disciplinary proceeding in abeyance. The Supreme Court in Union of India v. Bihari Lal Sidhana [(1997) 4 SCC 385 : 1997 SCC (L&S) 1076] has held that
Mere acquittal of a government employee does not automatically entitle the government servant to reinstatement. As stated earlier, it would be open to the appropriate competent authority to take a decision whether the enquiry into the conduct is required to be done before directing reinstatement or appropriate action should be taken as per law, if otherwise, available.
When no prima facie case is made out from the FIR you can move a writ petition in the High Court under Article 226 of Constitution. The High Court has the power to quash the false and frivolous FIR if no case is made out and it is influenced by political vendetta.
I have been dismissed on the oral complaint but nowhere that complaint is mentioned in the dismissal order. That order of dismissal was passed without giving any reason. The departmental inquiry is initiated without recording formal complaint and information about my misconduct. I have opposed that proceeding but dismissed from service without any reason. I want to take appropriate legal action against the government. Please suggest appropriate legal action which I can take in this matter.
You should challenge the validity of the order of dismissal in the High Court under Article 226 of the Constitution. The dismissal order is void because it is unreasoned. The disciplinary authority did not record any reason for passing such a harsh punishment.
This order is violating the constitutional protection available to the public servants under Article 311 of the constitution of India. In Union of India v. Tulsiram Patel [(1985) 3 SCC 398] the Supreme Court has held that recording of reasons for forming the requisite satisfaction is mandatory.
However, the disciplinary authority is not bound to disclose the reason in the punishment order but he has to record in his proceeding. Whenever the court calls that proceeding the authority has to produce the reason on that basis the dismissal order was passed. Inflicting punishment without stating sound and just reason is illegal;
In Collector of Monghyr v. Keshav Prasad Goenka [(1963) 1 SCR 98] the Supreme Court has held that where the statute requires the recording of reasons, any action taken without recording the reasons is invalid.
Thus, the order of dismissal is invalid. It violates the provisions of Article 311. The High Court, at the stage of admission may stay the order and call counter from the opposite party. If the order of dismissal was without giving any reason the High Court shall quash such an order.
Can I seek a stay of departmental inquiry during criminal prosecution? The government has filed a criminal case against me on the complaint of a MLA. That MLA has asked a question in the assembly and made several allegations against me. The government took the cognisance of those allegations and initiated a departmental inquiry. Later on a criminal case has filed against me. Both cases have the same allegations. I want a stay of departmental inquiry during the pendency of criminal case. Please help!
The purpose of departmental inquiry and criminal prosecution is different. Punishing the delinquent officer for the offence he committed in the discharge of his duty is the basis principle behind the criminal prosecution.
But in the departmental inquiry the basis purpose is to maintain discipline in the service. However, the allegations are the same in both proceedings but the purpose and effect of their result are different.
You can request the government or appropriate authority to stay the disciplinary proceeding till the disposal of the criminal case if charges in the criminal proceedings are grave in nature.
In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. [(1999) 3 SCC 679] the Supreme Court has held that 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.
You should bear in mind that if the criminal cas is getting delay the government can resume the departmental inquiry [Hindustan Petroleum Corpn. Ltd. v. Sarvesh Berry, (2005) 10 SCC 471]
There is no hard fast rule that when the department should stay the departmental inquiry until the disposal of criminal prosecution. These are the indicating factors for stay of disciplinary proceeding:
- Early disposal of criminal case
- Complexity of legal issue
- Better appreciation of evidence
- Serious effect of proceeding
- Gravity of charge
You should move a representation to the concerned authority to stay the departmental proceedings until the disposal of criminal prosecution. But you cannot claim such a request as a matter of right. This is discretion of the government to accept or reject your representation. You can also request to change the inquiry officer.
Can investigating officer send the document to FSL? I am 75 years Retd ISRO scientist in Hyderabad. Seeking your advice/suggestion/consultation on a small clarification. I had bought 1 Acr land in 1997 and got it mutated in 2019. ROR is in my name. This February, the brother of the person who sold me filed a civil case based on a False Sale agreement he claims to have been made by me to sell him the said land. Since it is a False document, I lodged a private complaint thru magistrate and he directed the Police for FIR and investigation and given a deadline of 30th Aug. After the stipulated date I contacted my lawyer to know about the outcome. He said in a very light tone that 'what do you have to do with the case ? it is between magistrate and police and you don’t have anything to do with it.'
My doubts : 1. If I don’t have anything to do with it then why did the advocate advise me to go for it and charged 20K Rs for filing the case? ( No, it is not the question of money; but then what is the use of case ? ) 2. I thought that this FIR result will find the genuine-ness of the document. ( Being scientist I can recognise that my purported signature there is colour printed on the document. I wanted it to be confirmed by FSL.. Mentioned clearly in my prayer to Magistrate with a statement that I will bear the expenses of FSL services ) 3. I wanted to use this case finding for submitting in Civil case to make it null and void based on the forged document. But, as my lawyer told me ( I think it is wrong ) , this Private case will not issue me a certificate about the genuiness of document … IS IT CORRECT ???
More importantly, he said that even if it is proven that the document is false, you can't use this in your civil case to nullify the accusation thrust on me. How true are his statements? If I can't use findings in civil cases then why was I advised to go for the Private case route and spend 20k INR? BTW, it seems that official charges are under 500 Rs for a private case. Thanks.
Your advocate’s advise is wrong. When you filed an application under Section 156(3) of the code of criminal procedure (CrPC), the court admitted your application and directed the officer in charge of the police station to register an FIR.
The above direction of the court itself proves that the offence committed by the accused is a cognisable offence. According to section 156(1) of the CrPC the police officer has the power to investigate a cognisable offence without order of the Magistrate.
Therefore, once the order of lodging an FIR has been passed by the Magistrate the police officer shall initiate the investigation and submit a report under Section 173 of Crpc without seeking further order of the Magistrate. [State of Bihar vs Saldanna (1980) CrLJ 98 SC]
Now, it is not a private complaint case. You have the right to approach the Magistrate, to whom you filed your application under Section 156(3) crpc, to call a progress report from the investigating officer and issue any suitable order to ensure free and fair investigation. The Magistrate has the power to monitor the investigation. [Sakiri Vasu vs State of U.P. (2008) 2 SCC 409].
The investigating officer has the power to collect evidence in the course of investigation. When the investigating officer records your statement under Section 161 CrPC, you should state that your signature bearing on the agreement to sale is forged. Then the investigating officer shall send the alleged document to the FSL for forensic examination.
If the investigating officer refuses to do so, then you should prefer an application to the concerned Magistrate under Section 156(3) crpc to direct the investigating officer to send the copy of agreement to sale for FSL report. The Magistrate has power to pass such an order in exercise of his monitoring power as held by the Hon’ble Supreme Court in Sakiri Vasu vs State of U.P. (2008) 2 SCC 409.
The state shall send the document for forensic examination on its own expenses. you‘ll not bear expenses for forensic examination. If FSL proves that the signature is forged then you can use its finding in any other proceeding, either civil or criminal, in which the maker of that agreement is a party.
