I was a public servant and retired from the post of superintendent engineer. No departmental inquiry was set up against me for the alleged misappropriation of government fund from the state treasury. My pension and gratuity are stopped without any reasonable cause. It is a clear violation of the right to a pension of the employee. Please advice.
The pension is not a bounty payable on the sweet will and the pleasure of the Government. The right to a pension is a valuable right of the employee because he earns these benefits by dint of his long, continuous, faithful and unblemished service.
The employer must initiate a departmental inquiry against the delinquent employee and conclude it within the shortest period.
The state and central governments have made various rules and regulations for withholding or reduction of pension. Article 309 of the constitution empowers the Parliament or the State Legislature to make such rules. Such laws are made with a view to recovering the loss of government exchequer from a public servant.
Article 309 does not confer arbitrary and unfettered right to withhold pension and retiral benefits of a government servant.
In State of U.P. v. Brahm Datt Sharma [(1987) 2 SCC 179], the Supreme Court has held that the Government is entitled to recover the pecuniary loss from the government servant. The government can initiate a departmental proceeding against the public servant even after his retirement. Government is entitled to withhold, reduce or recover the loss suffered by it by forfeiture or reduction of pension if he is found guilty.
Pension and gratuity is a statutory right
The employee’s right to pension and gratuity is a statutory right. In your case, the order to withhold the pension and gratuity as a measure of penalty is illegal. Because such order or measure of punishment cannot be passed without complying due process of law.
The government while passing such order must follow the rule of natural justice.
Right to property is still a constitutional right, and each administrative order must follow the rule of natural justice. If pensioner found guilty in a departmental or judicial proceeding, then the Governor can withhold pension and order for recovery from his pension. The findings of grave misconduct or negligence during the period of his service is essential for stopping retiral dues.
In State Of Jharkhand & Ors vs. Jitendra Kumar Srivastava [(2013) 12 SCC 210];the Supreme court of India observing that
Gratuity and pension are employee’s hard earned benefits. His right to receive pension is in the nature of “property” hence protected under article 300 A
The Court further held that the government could not take away this right because of pending departmental or criminal proceedings. Performance of due process of law as per the provisions of Article 300 A of the Constitution of India is mandatory for such order.
In this scenario, you should file a writ petition before the High Court under article 226 of the constitution of India and challenge this order of withholding your pension and retiral benefits without finding you guilty of grave misconduct.
I am a consumer of the Indane an Indian oil petroleum gas service, i.e. Indane. My distributor committed fraud by issuing several connections without having the authority. Later on, the Indane has terminated his agency and transferred all connections to another distributor. Indian oil has ceased my consumer number by stating that distributor issued it without any authority.
You are a bona-fide consumer of Indane distributor because you have paid the requisite fee for a new connection. The distributor has concealed the fact that he had no authority to issue a new connection. If you had been receiving refill cylinder on the same connection number, then you can claim that you are a bona-fide consumer.
There is no fault from your side. Issuing a connection without having authority amounts of deficiency in service. The distributor is liable to compensate the consumers to whom he inducted unauthorisedly. A person becomes an LPG customer only on signing a subscription voucher. That voucher contains the terms and conditions governing the loaning of gas cylinders and pressure regulator etcetera.
I think you have signed that consumer voucher and paid all the requisite fees. Hence, the distributor cannot refuse or deny that you obtained that voucher by committing fraud. In the above condition, the distributor is under obligation to compensate you.
You should file a complaint before the district consumer forum for the compensation as well as you can register an FIR for the offence of cheating. It is a criminal act and punishable under section 420 of the Indian penal code.
Liability of Indian Oil Corporation (Indane)
The Indian Oil Corporation is not liable for compensation. Clause 17 of the LPG distributorship agreement postulates the distributor to act as principal and not as an agent. Hence, indane is not liable to compensate for the illegal act of its distributor. The distributor is not an agent of Indane, so the relationship as of principal and agent does not exist.
In the above condition, indane has no legal obligation to regularise the connection. There is privity of contract between you and the distributor; however, the distributor had no authority to make a new consumer. Hence, such act of distributor constitutes deficiency in service and comes under section 2(g) of the Consumer Protection Act.
According to that section, the ‘deficiency’ means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
It is the fault of the distributor to issue new connection without having any authority from the Indane. Hence, the distributor is liable for the deficiency in service committed from his end. You should file a complaint before the district consumer forum.
I am a widow as well a senior citizen of India. I want to know about the maintenance rights of my son. What is my maintenance rights as per the Indian law?
India is the home of more than 81 million senior citizens. It is expected that by 2026, the number of senior citizens would be 173 million or 12.4 per cent of the population. Majority of them have been living without the help of their children. However, the old fabric of our society to live with parents and take care of them has been gradually withering due to exodus or migration from village to city for good job and livelihood. Children have neither the time nor the inclination to care for their old parents and grandparents.
However, traditional norms and values of the Indian society have laid stress on providing care for the elderly. However, our legal system is still waking. Elderly parents have the right to claim maintenance from their children under:
- Section 125 of the Code of Criminal Procedure
- Section 20 (3) of the Hindu Adoptions and Maintenance Act
- Section 5 of The Maintenance and Welfare of The Parents and Senior Citizen Act 2007
You can file an application before the Magistrate under section 125 of the Code of Criminal Procedure for maintenance against your son. You have to prove that you are unable to maintain yourself and your son has been neglecting or refusing to economic support. The court upon proof of such neglect or refusal shall order your son to pay the monthly allowances in the form of maintenance.
Section 20(3) of the Hindu Adoption and Maintenance Act, imposes an obligation upon the son to maintain his aged or infirm parents. Therefore, a son cannot refuse to keep his parents who are unable to support out of their own earning. Again, you have to prove that you are unable to maintain. You may file a petition before the Family Court under section 7 of the Family Courts Act 1984 for the claim of maintenance under section 20(3) of the said Act.
You may move an application before the Tribunal constituted under The Maintenance and Welfare of The Parents and Senior Citizen Act 2007. Section 5 of the said Act 2007 empowers the Tribunal to admit an application for maintenance from a senior citizen. The senior citizens have the right to maintenance under section 4 of the said Act 2007 against their children or relatives.
Whether stepmother is entitled for maintenance under section 125 crpc from her stepson if she is widow and a childless lady? I am a widow and childless lady have no source of income. My husband died in the year 2000. My stepson is refusing to maintain me. There is no other relative from whom I can claim alimony. Can I claim maintenance from my stepson?
Asked from: Haryana
If the mother is living in destitution, she is entitled to maintenance under Section 125(1)(d) of the Code of Criminal Procedure (crpc). She can claim maintenance from her son who has sufficient means to maintain her. The court can fix a monthly allowance as an alimony upon the proof of neglect or refusal of son to maintain his mother.
Whether stepmother can claim maintenance from her stepson
Section 125(1)(d) relates to maintenance of real mother. Hence, a doubt naturally rumbles in mind whether stepmother can invoke section 125 against her stepson? The word “mother” as used in Section 125 crpc, does not include stepmother. The plain reading of section 125 infers that only the real mother can claim alimony from her son.
But the Supreme Court, in catena of judgments, has held that section 125 is a social and benevolent legislation. This section has a tremendous societal impact; hence, it needs very liberal interpretation. The Supreme Court further opined that a childless stepmother should not be left on the mercy of God, when her stepson has good financial resources.
In Kirtikant D. Vadodaria v. State of Gujrat (1996) 4 SCC 479; the Supreme Court has held that however section 125 is silent about the right to maintenance of stepmother, but this section needs to be interpreted liberally. The court further held that a childless stepmother is entitled to maintenance from her stepson under section 125 crpc.
Move an application under section 125 crpc
It is settled law that a childless stepmother is entitled for maintenance from her stepson if she cannot maintain herself out of her own sources. She can claim alimony if she is widow, or her husband has not able to maintain her. You have to prima facie prove yourself a destitute lady. If you have a source of income then you cannot get maintenance under Section 125.
You should file an application before the first class Magistrate under section 125 CrPC. There is no period of limitation for claiming alimony. Moreover, during the pendency of your case you can also claim interim maintenance.
Grounds for invoking Section 125 crpc
As per the facts and circumstances of your case these facts are necessarily be proved while filing the application under Section 125 crpc.
- I am a childless lady
- Presently, I'm living in destitution
- My stepson has sufficient means to maintain me
- My stepson is neglecting or refusing to maintain me
- I have no source of income to maintain myself
Alimony includes food, lodging, health care and supply of things manifested as essential for living. The amount of maintenance shall be decided on the basis of your basic need and financial capacity of your stepson. Section 125 crpc does not lay minimum and maximum cap on the amount of alimony.
My girlfriend has filed a false case of sexual harassment. She filed FIR under section 354 A of the Indian penal code. Indeed, she induced me to establish a sexual relationship with the sole purpose to extort money. I trapped on the web; I had sent some WhatsApp messages that exhibit my lust.
She filed FIR for rape by those messages. She wants to extort money from me. Therefore, she made such false allegation. When I did not fulfil her demand, hence she made such allegation. I’m not committed any offence.
Now the investigating officer has initiated a further investigation to collect evidence regarding the offence of rape. What could I do against the further investigation conducted by the investigating officer? Do I have any other remedy?
You said that charges are false because you did not commit any offence. As of now, the investigating officer has submitted a charge sheet under section 173 of crpc. It prima facie infers that there are some materials in support of the allegation. Generally, the investigating officer submits charge sheet upon collection of sufficient materials regarding the commission of the offence.
In the current scenario, you have one remedy to evade from the charge sheet. You can move a discharge petition when the court admits the charge sheet. The court is not bound to disclose charge sheet in toto; the court has to examine the charge sheet and the materials accompanied in addition to that. After that, court frames charges against the accused.
Accused has the opportunity to oppose the charges, framed by the court, on the ground that no sufficient materials are available in their support. It would help if you bore in mind that you cannot produce any evidence, but you have the right to invite the attention of court towards infirmities of the charge sheet.
Further investigation
As far as the further investigation is concerned, it is permissible on the discovery of new facts [State of Andhra Pradesh versus A.S. Peter (2008) 2 SCC 383]. The police have the right to further investigation under section 173(8) of the CrPC. Police can conduct a further investigation without an order of Magistrate because it is a statutory right of the police officer [Rama Chaudhary v. the State of Bihar, (2009) 6 SCC 346].
Further investigation is not a fresh investigation; it is a continuation of the earlier investigation. Hence, you have no remedy to stop further investigation. It is prerogative of the investigating officer.
If you think that charge sheet is baseless and bald, then you should challenge the same. If the charge sheet contains no cogent evidence in support of alleged offence, then the court must reject the charge sheet. You should move a discharge application and show that materials accompanied by charge sheet do not support the allegation.
My daughter died in strange circumstances. Her in-laws demanded dowry after the marriage. I could not fulfil their demands but tried my best to achieve as far as possible. I have sufficient evidence to prove that they demanded dowry otherwise ready to face dire consequences.
By and large, they were unhappy and called a meeting for settlement. I have so many messages about the incidents of cruelty. They tortured my daughter to compel us to give XUV 500. Mainly her husband and his parents are responsible. I want to know what is the law regarding dowry death and cruelty.
Accused has committed the offence of dowry death and all the ingredients of that offence are exist in your case. You should file FIR as soon as possible. Delay in filing FIR may cause serious impediment.
The offence of dowry death is made punishable under section 304-B of the Indian Penal Code (IPC). Following are the essential ingredients of the offence:
Basic components
The Supreme Court in Ram Badan Sharma v. State of Bihar, (2006) 10 SCC 115; has explained the essential ingredients of dowry death as:
- Deceased died due to burn or bodily injury or otherwise than under normal circumstances.
- She died within seven years of marriage.
- Soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband.
- Finally, that torture or cruelty related with any demand for dowry
Time is an essential element for this offence. Death should be caused within seven years of marriage, and such death is the direct consequence of cruelty committed by the accused of the demand of dowry. If there is remoteness of the link between death and demand for dowry, then offence of dowry death is not made out.
For brought the accused in the purview of dowry death, section 113 B inserted in the Indian Evidence Act. According to this section, the court upon fulfilment of some conditions shall presume that the offence of dowry death is committed. Section 113 B ensues presumption of dowry death.
Presumption of dowry death
Section 113 B of the Indian Evidence Act empowers the court to presume dowry death upon fulfilment of these conditions
- Soon before her death, she was subjected to cruelty.
- That cruelty or harassment was in connection with any demand for dowry
When prosecution successfully proves the conditions mentioned above, then the Court may presume that the accused has committed dowry death.
As far as your case is concerned, there has been persistent demand of dowry and harassment, humiliation and physical violence by the husband and her in-laws. After all, your daughter died in the relation of demand for dowry. She died within seven years of marriage. Hence, it is a clear case of dowry death.
The Supreme Court held in State of H.P. v. Nikku Ram [(1995) 6 SCC 219]; that the demand for dowry can be made at any time, and not necessarily before marriage. Generally, the accused demands dowry on three occasions. Firstly before the wedding. Secondly at the time of marriage and finally after the marriage.
However, to get a conviction under this section, cruelty must relate with demand for dowry as well as deceased being subjected to cruelty soon before her death.
Cruelty
Section 498-A of IPC defines the act of cruelty. This section extends the ambit of section 304-B. Mere harassment of woman does not constitute cruelty. When the act committed with a view to forcing the wife to fulfil illegal demands of accused, then the court treats such act as cruelty under section 498-A.
There must be some cogent evidence in support of the fact that accused harassed his wife. Such harassment should be in connection unlawful demands like payment of money, delivery articles. That cruelty was committed soon before her death.
I filed an FIR for the offence of cheating. My friend took some money from me and now refusing to pay. He told me that he needs some money for her sister’s marriage. I had faith upon him and transferred money online in his bank account. After two years I asked him to pay the said money then he became violent and refused to pay. I inquired about his family and found that he has no sister. He cheated me and took money on a false promise. He has good contact with police officers. Therefore, the investigation is pending since last year.
If the investigating officer does not honestly perform his duty, you can approach the superior police officer under section 36 crpc. Section 36 of the code of criminal procedure (crpc) empowers the superintendent of police to either to do the investigation himself or to assign any subordinate officer.
Generally, the superior officer does not take any step under section 36 crpc because of workload. In that situation, you have a right to approach the concerned Magistrate under section 156(3) of the code of criminal procedure.
Monitoring of an improper investigation
Section 156(3) confers on the Magistrate a wide power to monitor the investigation. However, the Magistrate cannot interfere with the investigation, but he can watch the probe. A magistrate has the authority to direct the police officer to investigate or re-investigate the case. To exercise that power, he can instruct him to do a proper investigation and submit a status report.
In Union of India v. Prakash P. Hinduja (2003) 6 SCC 195; the Supreme Court holds that the Magistrate on an application under Section 156(3) CrPC pass appropriate order if he satisfied that
- the investigating officer does not investigate the case properly.
- the officer in charge of the police does not perform his duty of investigation
The Magistrate can undoubtedly direct the officer in charge of the police station to make a proper investigation, and he can further monitor the same.
In Sakiri Vasu v. State of U.P., (2008) 2 SCC 409; the Supreme Court holds that even though these powers not expressly mentioned in Section 156(3) CrPC, we are of the opinion that they implied in the above provision.
Hence, Magistrate has the power to monitor the case despite no such provision explicitly mentioned in section 156(3) crpc. If you approach the Magistrate under section 156(3) crpc and he did nothing on your application. Then, you can file a petition before the High Court under section 482 crpc for issues a direction for proper investigation.
