The private security company is not paying provident fund to its employees. I am president of a welfare association of a housing society. My society has contracted with a private security company to provide trained security personnel. We need its services for the better security of our property. Currently, we are paying nine lakh rupees per month to it for the salary of security guards.
In the last general meeting, the manager of the security company raised this issue. He told us to please deduct the amount of provident fund from the company’s monthly payment. Hence, we talk to the company but it has denied any deduction. But we have decided to reduce or hold the payment to the company until it agrees to pay the provident fund to its employee. I want to know whether a welfare society can withhold the payment of a security company? Can society pay a monthly provident fund to the security guards? Please suggest.
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Deduction in monthly payment
The welfare society cannot deduct any amount from the monthly payments of the security company without amending the contract. There is a contract between the private security company and the welfare housing society for providing security guards.
The company receives monthly payment from the society for deployment of its trained security guards. That contract is binding upon both parties. No party can change the terms and conditions of the contract on its one motion.
You should take consent of the private security company towards the reduction of monthly payment. If the company agrees then you have to replace the existing contract. According to Section 62 of the Contract Act if parties to a contract agree to alter the conditions they have to replace the current contract. Because parties are not bound to perform the original contract after the alteration.
Society cannot pay provident fund to the security guards
Society is stranger to the contract between the security guards and the security company. Hence, it cannot directly pay the provident funds to the security guards. Security guards are employees of the company. The employer and employee relationship exists between them. Therefore, the company, in the capacity of employer, has to pay provident funds to the security guards.
The society should refrain itself from the unnecessary dispute between the security guard and private security company. The company provides trained security personnel for the security of premises. It is doing a business of specialised and expert services. Therefore, it has the exclusive right to recruit and train a person as a security guard. All the security guards are working in the control of that company.
You have no control over security guards and they are also not your employees. The provisions of Employees’ Provident Fund and Miscellaneous Provident Fund 1952 [EPF Act] apply to the private security company. That is bound to comply with the provisions of EPF Act.
Hence, society should reject the complaints of security guards and not engage itself in unnecessary litigation. Society will breach the agreement if it deducts any amount from the company’s monthly payments. Society can do so only after substitution of a new contract.
File a complaint before the Assistant Provident Fund Commissioner
The security guards should file a complaint before the Assistant Provident Fund Commissioner (APFC) against non-payment of provident funds. They should seek from the APFC to direct the company to open PF accounts to its employees. The APFC has power to recover the arrears of provident funds from the private security company.
In your case, the APFC may send a notice to the company under Section 7A of the EPF Act. He can recover the dues under Section 7Q of the EPF Act. This is the proper course of action in your case. Moreover, the security guards are entitled to get benefits of provident funds. It is the responsibility of private security company to open provident funds of its security guards.
I have filed a real estate dispute matter in the consumer forum. Can I file a RERA related case in the consumer forum? The Builder is not giving possession of the flat even after the completion of construction. He says that the completion certificate is pending and the appropriate authority is not taking any decision on issuing the completion certificate. But I have information that he has done some illegal act in taking plan approval, therefore, his completion certificate application is pending. Hence I filed a case in the consumer forum for refund of my money or giving possession of the flat. I have also claimed to pay interest on the deposited money. The interest I am claiming is arising from August 2017.
His advocate says that my case is not maintainable in the consumer forum because there is a proper form under the RERA act. Sir, I want to know what would be the consequence of my case which I have filed in the consumer forum? The RERA authority is situated in the other district and I will face difficulty to contest the case in another district. My advocate is also suggesting to withdraw this case and file it in the RERA authority.
Asked from: Uttar Pradesh
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The district consumer forum has admitted your case and it is on the stage of argument. At this stage the opposite party has raised the objection towards the jurisdiction of the consumer forum.
Who can approach the consumer forum
A person who comes within the meaning of “consumer” as defined in Section 2(1)(d) of the Consumer Protection Act, can approach the consumer forum. The section says that a person who buys a goods or services in consideration is a consumer except to purchase it for any commercial purpose. If a person buys a goods or services in consideration for his self-employment or livelihood he is also a consumer.
You have bought a flat from the builder. Builder is doing a business of construction and selling of flats. Therefore, you are a consumer and the builder is a seller. Thus you can file a case in the consumer forum for protection or execution of your rights.
Prima facie there is no dispute regarding the filing of case in consumer forum. A dispute between the builder and buyer regarding the deficiency in services comes within the jurisdiction of the consumer forum. Hence, your case is maintainable under the Consumer Protection Act.
The RERA Authority came into being after enactment of a special law for the redressal of real estate disputes. The RERA Act 2016 confers jurisdiction to the RERA Authority to hear and decide the disputes pertaining to the real estate matters.
No conflict between the RERA authority and consumer forum
The RERA Act has no conflict with the Consumer Protection Act. It does not preclude the consumer from filing cases in the consumer forum pertaining to real estate disputes. Real estate matters are now specially dealt with by the RERA authority but flat buyers can also approach the consumer forum.
Section 79 of the RERA act put a bar on the civil court to entertain any suit or proceeding in respect of any matter which the RERA Authority has jurisdiction to decide. But this bar or restriction particularly applies in civil court. Other forums can entertain the cases relating to the real estate disputes.
Imperia Structures Ltd. v. Anil Patni, (2020) 10 SCC 783, the hon'ble supreme court has held that: On the strength of the law so declared, Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any complaint.
Proviso to Section 71(1) of the RERA Act entitles a complainant who had initiated proceedings under the CP Act before the RERA Act came into force, to withdraw the proceedings under the CP Act with the permission of the Forum or Commission and file an appropriate application before the adjudicating officer under the RERA Act.
The proviso thus gives a right or an option to the complainant concerned but does not statutorily force him to withdraw such complaint nor do the provisions of the RERA Act create any mechanism for transfer of such pending proceedings to authorities under the RERA Act. As against that the mandate in Section 12(4) of the CP Act to the contrary is quite significant.
Can you file a real estate dispute matter in a consumer forum?
Yes, you can file a real estate dispute matter in a consumer forum. However, Section 18 of the RERA Act confers right to the flat buyer to claim refund of money with interest. But the consumer has also the same right under the Consumer Protection Act. Both forums have concurrent jurisdiction. Because Section 88 of RERA Act empowers the consumer to avail remedy from the consumer forum also.
The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force.
Section 88 RERA Act
The RERA Act has no provision to withdraw or transfer cases from the other forums to the RERA Authority. Also the other forum has no power to remand the pending cases to the RERA Authority. In absence of such a provision you can file RERA related matters to the consumer forum.
In Imperia Structure Ltd. vs Anil Patni AIR 2021 the Supreme Court has held that flat buyers can file a case in the consumer forum despite that the RERA Authority has exclusive jurisdiction in real estate dispute matters. Therefore, your case is maintainable in the Consumer Forum.
My father was an executive engineer in PWD, Uttar Pradesh. He died during his office tenure. I want to get service on the demise of my father because my husband is not working. If I get a government job I can take care of my mother and younger brother. Is a married daughter eligible for compassionate appointment? Can I get a job in the PWD department after the death of my father?
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If a government servant dies in harness his dependent can get a compassionate appointment. Giving compassionate appointments to the dependents of deceased government servants achieves a social goal. Therefore, it is the responsibility of the government to provide ameliorative relief to the family of a government servant who has died in harness. Compassionate appointment provides immediate financial support to the family of a wage earner on his untimely death.
The basic rationale and the foundation for granting compassionate appointment is thus the financial need of the family of a deceased government servant who has died in harness and it is with a view to alleviate financial distress that compassionate appointment is granted.
Vimla Srivastava vs State of Uttar Pradesh, AIR 2015
Is a married daughter eligible for compassionate appointment?
Rule 2(c) of The Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 defines the word “family”. According to the definition of Rule 2(c), a married daughter is not included in the family of a deceased government servant. Therefore, a married daughter is not entitled to get a compassionate appointment.
Gender discrimination in dying in harness rule
Prima facie the definition of family [Rule 2(c)] discriminates on the ground of gender. A married son is entitled for the compassionate appointment but a married daughter is not. This discrimination on the basis of gender has eliminated by the Hon’ble Supreme Court in its various decisions.
In C.B. Muthamma vs. Union of India AIR 1979 SC 1868, the Supreme Court has held that "If a married man has a right, a married woman, other things being equal, stands on no worse footing."
A daughter after her marriage does not cease to be a daughter of the father or mother .
Vijaya Manohar Arbat vs. Kashirao Rajaram Sawai AIR 1987 SC 1100
In National Legal Services Authority vs. Union of India (2014) 5 SCC 438, the Supreme Court recognized that gender identity, is an integral part of sex within the meaning of Articles 15 and 16 and no citizen can be discriminated on the ground of gender.
Therefore, a married daughter is also entitled to get a compassionate appointment after the death of her father. The dying in harness rule is also applicable on the married daughter and she is entitled for compassionate appointment [Mamta Devi vs State of Himachal Pradesh, 2021 LAB. I. C. 1].
Conclusion
But you are not entitled to get a compassionate appointment because you have a younger brother. The priority goes to the son over the married daughter. Therefore, he shall get a compassionate appointment instead of you.
Son undoubtedly comes under Rule 2(c) i.e. the meaning of family, and he can take better care of his mother rather than married daughter. He is the real person who is facing financial hardship after his father’s death.
If a married daughter is the only child of a deceased government servant then she can get a compassionate appointment. You do not come under this criteria therefore you cannot claim compassionate appointment under dying in harness rule.
Government has rejected my application for the compassionate appointment on dying in harness rule. My father was a teacher in ITI College. He taught shorthand and typing. He was working as a daily wager because one post of teacher was vacant. There were three sanctioned posts for typing teachers. Two are permanent and one is ad-hoc. My father was working as an ad-hoc teacher. He died in Covid pandemic so I applied for a compassionate appointment for his post. I have eligibility but the government has rejected my appointment because my father was not a permanent teacher. Please guide how to get a compassionate appointment on dying in harness?
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U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 regulates the compassionate appointment. If an employee dies during his employment his dependent may get compassionate appointment on the basis of dying in harness rule.
Essential conditions for appointment under dying in harness rule
There are two essential conditions for granting the benefit of dying in harness rule. Firstly, the deceased employee should have been working on a regular vacancy. Secondly, he should be appointed in accordance with the prescribed rule.
There should be no illegality on the initial appointment of the deceased employee. Bypassing the proper channel or back door entry of deceased employee renders his appointment illegal. In this condition his dependent is not entitled to get a compassionate appointment under the dying in harness rule.
The government has rejected your application for compassionate appointment because your father was an ad-hoc employee. This is not a fair ground to reject your application.
Working on regular vacancy
You said that your father was working as a typing teacher in the ITI College. There are three sanctioned posts for the teachers. Only two teachers are permanent. Your father was working as an ad-hoc teacher because the government has not appointed any incumbent teacher on the permanent post.
It proves that your father was working on the regular vacancy. He had been receiving salary from the state government and there is no dispute regarding his appointment. The government has rejected your application for compassionate appointment because your father was an ad-hoc employee. It means there is no dispute regarding his appointment. The government has admitted that your father was an ad-hoc or work charged employee.
In Pawan Kumar Yadav v. State of U.P. & Others 2011 (1) AWC 1028 (FB) the full bench of the Allahabad High Court has held that
“A daily wager and work charge employee employed in connection with the affairs of the Uttar Pradesh, who is not holding any post, whether substantive or temporary, and is not appointed in any regular vacancy, even if he was working for more than 3 years, is not a 'Government servant' within the meaning of Rule 2 (a) of U.P. Recruitment of Dependents of Government Servants (Dying in Harness) Rules, 1974, and thus his dependents on his death in harness are not entitled to compassionate appointment under these Rules.”
The above decision of the High Court makes it clear that when a deceased employee was not appointed in any regular vacancy he shall not be treated as a government servant under Rule 2(a) of the 1974 Rules. In this situation his dependent shall not get a compassionate appointment.
On the other hand, a dependent of a deceased employee, who was working on regular vacancy, is entitled to get a compassionate appointment. The judgement of Pawan Kumar Yadav does not apply in your case, hence, you fulfill the criteria for compassionate appointment.
Are you entitled to get a compassionate appointment?
Yes, you are entitled to get a compassionate appointment under the provisions of U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974.
In General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi and Others, C.A. No. 3605 of 2009 SC the Supreme Court has held that when a competent authority has sanctioned a post in a cadre strength that post is a regular vacancy. Hence, your father’s post is a regular vacancy because there are three posts of teachers which have been sanctioned by the government.
Existence of a regular vacancy would mean a vacancy which occurred in a post sanctioned by the competent authority. For the said purpose the cadre strength of the category to which the post belongs is required to be taken into consideration. A regular vacancy is which arises within the cadre strength.
General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi and Others, C.A. No. 3605 of 2009 SC
Therefore, you are entitled to get a compassionate appointment under the dying and harness rule. Your father’s post is a regular vacancy. The competent authority had appointed him at that post in accordance with the service rule. Your father died in harness while continuing on the post of typing teacher.
Your family has plunged into poverty on account of the sudden demise of your father. You have the essential qualification to work as a typing teacher. Hence, the government should consider your candidature as per the dying in harness rule.
The government has illegally rejected your application for the compassionate appointment. Hence, you should file a writ petition in the High Court. File a mandamus writ under Article 226 of the constitution of India.
I have received three bullet injuries on my right shoulder, chest and collarbone. There is a medical report of those injuries but the investigating officer has converted the charge of attempt to murder into grevious hurt. He did so under political pressure. I have some eyewitnesses who are ready to record their statements. What should I do against the illegal act of investigating officer?
The investigating officer has no power to convert the charge of attempt to murder into grevious hurt if the victim has a medical evidence of injuries. This is a grave misconduct on the part of the investigating officer. He cannot ignore or refuse the medical report. Instead, he should collect the medical examination report and attach it to the case diary.
I think you still have the marks of bullet injuries on the particular parts of your body. Investigating officer cannot ignore or suppress this evidence. If he did so, you should take immediate action against him.
What to do when investigating officer has converted the charge
It is the duty of the investigating officer to collect all the evidence relating to the crime. He cannot ignore or overlook vital evidence such as the injuries sustained by the victim. You have received all the injuries on the vital parts of the body which can cause your death. Attempt to murder is an offence punishable under Section 307 of the Indian Penal Code.
Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine……………
Section 307 of the Indian Penal Code
The accused had the intention to cause your death. His intention is reflecting from the injuries he has caused on your body. Chest, shoulder, and collarbone are vital parts of the body. Firing of bullets on these parts is capable of causing death in the natural course. Therefore, it is a fit case of attempt to murder.
File an application under section 156(3) crpc
First of all you should file an application to the Magistrate under Section 156(3) of the code of criminal procedure. You should demand from the court to call a status report of investigation from the investigating officer. The investigating officer will submit the case diary in the court.
The Magistrate will examine the case diary. If the Investigating officer has converted the charge, which is originally alleged in FIR, the case diary will not have:
- Medical report,
- Medical examination of victim,
- Recovery of blood stained earth from the place of occurrence,
- Statements of eye witnesses etc.
If the Magistrate, upon perusal of the case diary, finds that the investigating officer has changed the line of investigation he can monitor the investigation. He can direct the investigating officer to collect that evidence and do the investigation on the line of attempt to murder.
Defective investigation
This is an example of improper and defective investigation. It violates the fundamental right of the victim. Victim is entitled to get a fair investigation from the state agency i.e. police officer.
Defective investigation tends to shake the faith reposed by the members of the society including the suspect/accused as well as Victim. The most effected would be suspect because all have to be presumed to be innocent till proved guilty and tainted investigation would curtail his freedoms i.e. life and liberty guaranteed under Article 21 of the Constitution of India.
Nirmal Singh Kahlon v. State of Punjab (2009) 1 SCC 441
The supreme court has held that the victim can approach the Magistrate under Section 156(3) crpc if the investigating officer is doing proper investigation.
27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C.
Sakri Vasu v. State of UP, (2008) 2 SCC 409
Remedy against improper investigation
The above judgments of the Supreme Court held that you have a fundamental right to get fair investigation. If the investigating officer has manipulated the investigation, then you can approach the Magistrate under Section 156(3) crpc.
The Magistrate, however, has the power to monitor the investigation and ensure that the investigating officer does not frustrate the purpose of investigation. An attempt to convert the attempt to murder into grevious hurt will frustrate the very purpose of investigation.
If investigating officer has converted the charge of attempt to murder into grevious hurt through the manipulation of evidence, it is your right to approach the Magistrate. You cannot directly approach the High Court under Section 482 crpc or under Article 226 of the Constitution of India.
You should file an application under Section 156(3) crpc as soon as possible. If the Magistrate does not take proper action then you can approach the High Court and file a writ under Article 226 of the Constitution.
My child has fallen in love with her tutor. She is a minor and the teacher is a married person. All this has happened due to immaturity of my daughter and instigation from the teacher. When the police recovered she was produced to the Magistrate. The Magistrate has sent her to Nari Niketan. I want her custody but the Magistrate has refused to grant custody of my child from Nari Niketan. What should I do to take custody of my child?
You did not mention why the Magistrate has refused to grant custody of your child from Nari Niketan? It is a criminal case. I think you should have lodged an FIR under Section 363, 366 of the Indian Penal Code and Section 3 & 4 of the POCSO Act.
The Magistrate has given your child in the custody of Nari Niketan. There were indeed some valid reasons to do so. The investigating officer would have brought her to the Magistrate for recording of her statement under Section 164 of the code of criminal procedure.
The Magistrate thought, on the perusal of her statement, that Nari Niketen would be a safe place for your child. This might be the reason for refusal of your application for custody of the child.
Each order of the Magistrate has some valid reasons. However, you did not mention anything about the grounds of refusal but I think that your daughter, in the statement under Section 164 crpc, might have refused to go to her home.
Remedy when magistrate has refused to grant custody of child
There are some facts in your favour and they will constitute valid grounds to challenge the order of the Magistrate. Your daughter is a minor girl, she eloped with her tuition master (accused). The tuition master is a married person.
In this situation, it is neither good to keep her in Nari Niketan nor send in the custody of the accused. Therefore, in the interest of justice, the parents of the child should get her custody.
The Magistrate has overlooked these facts and has refused to grant custody of child to her parents. These facts render the current custody illegal. The Nari Niketan is not a proper place of custody for a minor girl if her parents are ready to take her custody.
Custody of minor children is a sensitive issue. It is also a matter involving sentimental attachment. Such a matter is to be approached and tackled carefully.
R.V. Srinath Prasad vs. Nandamuri Jayakrishna, (2001) 4 SCC 71
A minor girl, however, should not be given in the custody of a married person who has illegally taken her away from the lawful custody of parents. Your daughter has not attained enough maturity to understand the consequences of her act. Therefore, refusal to grant custody of your child from Nari Niketan is illegal. When a person has been in illegal custody the writ of habeas corpus is maintainable.
Welfare of minor to be paramount consideration for deciding minor’s custody
Lekha vs. P. Anil Kumar, 2007 (66) ALR 150 (SC)
The High Court, in its writ jurisdiction under Article 226 of the Constitution of India, can quash the order of Magistrate. At the same time, the High Court may order or direct to transfer the custody of the child from the Nari Niketan to her parents. You should file a writ petition to get custody of your child from the Nari Niketan.
Read also: How to take custody of my daughter from Nari Niketan?
My daughter has been living in Nari Niketan. She left our house and travelled to Agra by train. The RPF police Agra kept her in custody when she was wandering on the platform. Now the Railway Magistrate has sent her to Nari Niketan. How to take custody of my daughter from Nari Niketan? She is minor and of sound mind. Is there any procedure to bring her back home? The RPF has informed me that my daughter is living in the Nari Niketan Agra.
In this situation you should move an application to the Railway Magistrate and demand custody of your daughter from Nari Niketan. Currently, Nari Niketan is a legal custodian of your child because of the order of the Magistrate. Hence, you cannot move a habeas corpus writ petition before the High Court.
Taking custody of daughter from Nari Niketan
The matter is under the territorial jurisdiction of Railway Magistrate, Agra. Therefore, you should move an application in the court of Railway Magistrate, Agra. You should produce the summon and submit her birth certificate or any other document to prove that she is your daughter.
If you have lodged an FIR under Section 363 of the Indian Penal Code, for missing your child then you must produce its copy to the Magistrate. However, in absence of FIR the court may grant custody of your daughter.
In absence of evidentiary proof that she is your daughter the Court will not pass an order to transfer custody of the child from Nari Niketan.
Read also: How to release wife from her parent's custody
I think there is no dispute regarding custody. She is innocent, not connected with any crime, RPF personnel found her wandering on the platform, therefore, took her in custody. The facts of your case suggest that in the interest of justice her custody should be given to her parents.
A balance has to be struck between the attachment and sentiments of the parties towards the minor children and the welfare of the minors which is of paramount importance.
R.V. Srinath Prasad vs. Nandamuri Jayakrishna, (2001) 4 SCC 71
If the Railway Magistrate refuses your application and retains her custody in the Nari Niketan, then you can move a writ petition to the High Court. In this condition, you have to file a habeas corpus writ. Such an order of Magistrate will render her custody illegal. Then you can approach the High Court for taking custody of your daughter from the Nari Neketan.
Read also: Action against illegal custody
How can I get a copy of divorce decree? What should I do if my husband has solemnised second marriage? I have been living separately from my husband for two years. He has solemnised a second marriage and is living with that lady. When I knew about it I reached my matrimonial home at Bengaluru. My Husband told me that our marriage has been dissolved by the court. He said that he has the divorce decree. When I asked to provide a copy of the decree then he refused.
It seems from the facts of your case that your husband is telling a lie. Court cannot pass a decree without serving a notice to the defendant. Notice is an intimation about the filing of a case. It also gives an opportunity to the defendant to file a written statement, thereby countering the case of the plaintiff.
You have no information about the divorce decree because you have not received any notice from the court. More importantly, your husband did not provide you with a copy of that decree. It resembles that he has not filed any divorce case against you. Since, he has no divorce decree therefore, he failed to produce it when you demanded from him.
How can I get a copy of divorce decree?
If you believe that your husband is telling the truth then you should approach the district court to get a copy of divorce decree. You should file a questionnaire in the concerned family court. In that questionnaire you should ask from the court whether any divorce decree has passed against you. Give personal details of both parties such as name, address etc in that questionnaire.
The court will search its records thereafter, it’ll answer your question. If the court provides you the details of the case then you should apply for the certified copy of that decree. The court will provide the certified copy of its judgement or decree upon receiving application along with requisite fee thereof.
When the court informs you that no such case has been filed, it proves that your marriage is still existing. Your husband’s second marriage is void. You are still a legally wedded wife.
According to Section 5 and Section 11 of the Hindu Marriage Act [HMA], a marriage becomes void if either party has a spouse living on the date of marriage. Section 17 HMA renders such a void marriage as a punishable act.
Any marriage between two Hindus solemnised after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code, shall apply accordingly.
Section 17 , the Hindu Marriage Act 1955
What should I do if my husband has solemnised second marriage?
You should initiate a criminal proceeding against your husband if he has solemnised the second marriage without divorcing the first one. In this situation, the second marriages becomes void and your husband has committed the offence of bigamy. Bigamy is punishable under Section 494 of the Indian Penal Code.
Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 494, Indian Penal Code
You should file a complaint to the concerned Judicial Magistrate’s court under Section 200 of the code of criminal procedure. This is a complaint case hence, you cannot lodge FIR (First Information Report). You can file such a complaint in Bangaluru or where you are currently living. Both places have territorial jurisdiction. You can choose any one of them.
Can I ask for a copy of the service records under the Right to Information Act? Is it a private document or public document? Is there any restriction on the demand of such information towards the government employee?
Facts: I am a government employee and currently under suspension. My colleague has made a false complaint against me for issuance of an illegal permit. He informed my superior officer that I had issued a permit to a cotton trader when he was on leave. The department has initiated an inquiry against me and issued a show cause notice. I want a copy of the service record of my colleague to prove that he was not on leave.
Service record is a public document, therefore, you can take a copy of it under the Right to Information Act (RTI). The RTI Act emperors the citizen to inspect government documents in the larger public interest. If there is public interest in disclosure of government documents the department cannot refuse to furnish the certified copy or photocopy of those documents.
So far as service record is concerned, the Central Information Commission (CIC) has held it as a public document. In Shri Chetan Kothari vs Western Railway CIC 2012 the CIC has held that service records are public documents. The CIC has held that the Public Authority is obligated under section 4(1)(b) the RTI Act to disclose information related to the service of its employees.
Service records are public document
Service details of a public servant are public document. It is not a personal or confidential information. Therefore, a citizen can seek information about the service record under the RTI Act. The bar of section 8 of the RTI Act is not applicable on the supply of information towards the service records. However, Section 8 of the RTI Act prevents the public authorities from disclosing personal information. But provision of Section 8 will not applicable on the information regarding the service records.
When the authority thinks that disclosure of personal information has no relationship to public activity or its disclosure may cause unwarranted invasion of the privacy of the individual then it may refuse to furnish that information. Since, bar of Section 8 does not apply on the information related to service records therefore, you can seek copy of service records under the RTI Act.
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