Government servants: India (legal issues, rules)
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Criminal offences by government servants,
Criminal offences by babus should draw life term: HC
Shibu Thomas | TNN
From the archives of The Times of India 2007, 2009
Mumbai: A tougher law is needed to punish corrupt babus, Bombay High Court has said in an important order. Justice AB Chaudhari has recommended to the Union government to bring about changes in the Prevention of Corruption Act to provide for a maximum punishment of life imprisonment for criminal offences committed by government officials.
‘‘Offences by public servants, bankers of various types of banks/financial institutions holding public money or those holding key posts in important public organisations have increased in unimaginable proportion as there is hardly any deterrent punishment,’’ said Justice Chaudhari, adding in exceptionally strong words, ‘‘Looking at the upsurge in the cancer of corruption in the country, the only way to have deterrent is now to provide life imprisonment in the Prevention of Corruption Act.’’
As per existing provisions in the PCA, a government officer held guilty can be awarded a maximum imprisonment of seven years, which the HC felt was not enough. The court’s remarks came during the hearing of a petition filed by an IAS officer, Akola municipal commissioner Giridhar Kurve (54), who had urged the court to quash a criminal complaint against him. Dismissing his plea, the HC asked the police to investigate the alleged fraud.
The court further asked the Centre to have a relook at the procedures where offences under IPC involving criminal breach of trust committed by a public servant (Section 409) go to the magistrate’s court. Since the magistrate cannot award a prison term of more than three years, the HC has directed the government to consider sending such matters to the sessions court which has the powers to award life imprisonment.
The case relates to a decision by Kurve to deposit Rs 1.30 crore in the Vidarbha Urban Cooperative Bank in March 2009. A month later the bank shut down. A private complaint was lodged against the commissioner and following the court’s intervention an FIR was registered against Kurve. The municipal commissioner claimed he had followed rules, but the court refused to accept this pointing out that the Vidarbha bank was not in the list of banks where a commissioner was allowed to deposit public funds.
‘‘Prima facie, there appears to be a clear cut nexus between Kurve and somebody to dupe Akola Municipal Corporation,’’ said the judge. The judge also asked the state to reconsider its decision to allow public money to be parked in cooperative banks. Domestic Violence Act: India
Pension
Right to pension can't be taken away pending proceedings: SC
PTI | Aug 20, 2013
NEW DELHI: Observing that gratuity and pension are hard earned benefits of an employee and right to receive pension is in the nature of "property", the Supreme Court has held that this right cannot be taken away from a government employee pending departmental or criminal proceedings.
"It is an accepted position that gratuity and pension are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and un-blemished service. It is thus hard earned benefit which accrues to an employee and is in the nature of "property".
"This right to property cannot be taken away without the due process of law as per the provisions of Article 300 A of the Constitution of India," a bench of justices K S Radhakrishnan and A K Sikri said.
The court passed the judgement while dismissing the appeal of Jharkhand government against the state's high court order directing it to release the withheld dues of its retired employee Jitendra Kumar Srivastava, who had criminal cases pending against him.
"We are of the opinion that the right of the petitioner (Srivastava) to receive pension is property under Article 31(1) (of the Constitution) and by a mere executive order the State had no power to withhold the same."
"...the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1)of Constitution, and as such the writ petition under Article 32 is maintainable," the bench said.
It also said "a person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced."
Pensions for children of divorced/ illegally wedded wives
Children of divorced, illegally wedded wives of deceased officers entitled to pension
PTI | Aug 29, 2013
Children of divorced, illegally wedded wives of deceased officers entitled to pension Earlier, children born outside wedlock had no claim on family pension and the legally wedded wife was the sole recipient of the post-retirement benefit.
NEW DELHI: Children of divorced or those born to illegally wedded wife of a deceased all India services officer are entitled to get family pensions, according to new rules notified by the central government.
"Where the deceased member of service or pensioner is survived by a widow but has left behind eligible child or children from a divorced or an illegally wedded wife or wives, the eligible child or children shall be entitled to the share of family pension which the mother would have received at the time of the death of the member of service or pensioner had she not been so divorced or had she been legally wedded," they say.
All India services comprise IAS, IPS and Indian Forest Service.
Earlier, children born outside wedlock of a government servant had no claim on family pension and the legally wedded wife was the sole recipient of the post-retirement benefit.
Pensions for additional wives
The amended All India Services (Death-cum-Retirement Benefits) Rules, 1958, also have provisions to provide equal share of pension to more than one widow of a deceased officer.
The rules have a provision to recognise marriage and family of a member of the services after his or her retirement and have made such family member eligible to receive pension after the death of an officer.
They also provide for monetary support to mentally retarded children of an officer of Indian Administrative Service (IAS), Indian Police Service (IPS) and Indian Forest Service (IFoS).
"If the son or daughter of a member of service is suffering from any disorder or disability of mind including the mentally retarded or is physically crippled or disabled so as to render him or her unable to earn a living even after attaining the age of twenty-five years, the family pension shall be payable to such son or daughter for life," the rules said.
If there are more than one such son or daughter suffering from disorder or disability of mind or who are physically crippled or disabled, the family pension shall be paid in the order of their birth and the younger of them will get the family pension only after the elder next above him or her ceases to be eligible, the rules clarified.
In case both wife and husband are members of service and are governed by the provisions of the rules and one of them dies while in service or after retirement, the family pension in respect of the deceased shall become payable to the surviving husband or wife and in the event of the death of the husband or wife, the surviving child or children shall be granted the two family pensions in respect of the deceased parents, they said.
Pension after 80/ 95/ 100
Retired all India service officials will also get additional pensions after completing 80 years of age, according to them.
Such retired government officials will get 20 per cent of additional pension after they complete 80 years of age, 30 per cent of after completing 85 years, 40 per cent after crossing 90 years of age, 50 per cent after reaching 95 years and 100 per cent of additional pension after completing 100 years of age, the rules said.
If there are more than one such son or daughter suffering from disorder or disability of mind or who are physically crippled or disabled, the family pension shall be paid in the order of their birth and the younger of them will get the family pension only after the elder next above him or her ceases to be eligible, the rules clarified.
In case both wife and husband are members of service and are governed by the provisions of the rules and one of them dies while in service or after retirement, the family pension in respect of the deceased shall become payable to the surviving husband or wife and in the event of the death of the husband or wife, the surviving child or children shall be granted the two family pensions in respect of the deceased parents, they said.
Retired all India service officials will also get additional pensions after completing 80 years of age, according to them.
Such retired government officials will get 20 per cent of additional pension after they complete 80 years of age, 30 per cent of after completing 85 years, 40 per cent after crossing 90 years of age, 50 per cent after reaching 95 years and 100 per cent of additional pension after completing 100 years of age, the rules said.
Polygamy
From the archives of The Times of India 2007, 2009 2010
OK to sack Muslim cop for having 2 wives: SC
TIMES NEWS NETWORK
New Delhi: After 23 years in court, a Muslim constable’s plea that he did not fall afoul of a bigamy charge as this was permissible in his religion, has been decisively quashed by Supreme Court which dismissed his special leave petition against a high court ruling.
The SC decision not to entertain the petition clearly establishes that those in government jobs cannot get around service rules that stipulate dismissal from service for bigamous employees. The SC said that religion-based personal laws cannot be invoked to prevent government rules from being enforced.
Former Rajasthan police constable, Liyakat Ali challenged the termination of his services under the Rajasthan Civil Services (Conduct) Rules, 1971, banning second marriage without divorcing the first wife.
The Supreme Court upheld the HC ruling against Ali on the ground that he had contracted a second marriage without divorcing his first wife. Ali contended that Muslim personal law did not prohibit a second marriage even as the relation with the first wife remained legally binding.
Cop’s first marriage not annulled
New Delhi: The former Rajasthan constable, who was dismissed from service on a bigamy charge had taken a plea that he had divorced his first wife before contracting the marriage with Maksuda. However, the inquiry reportedly revealed that the first marriage had not been annulled when he married for the second time.
The law did not mandate taking permission of the government and Liyakat Ali married Maksuda Khatun without divorcing his first wife Farida Khatun.
On January 25, an apex court bench comprising Justices V S Sirpurkar and Aftab Alam dismissed Ali’s appeal against the HC judgment prima facie accepting the stand of the Rajasthan government that the 1971 rules were applicable to all government servants, irrespective of the religion, to enforce strict discipline.
Retirement, premature
Forced early retirement: Bad reputation sufficient grounds
Bad reputation can justify forced early retirement: HC
Ajay Sura TNN
Chandigarh: An employee may be forced to retire in public interest if his/her “general reputation” is not good even without tangible material to substantiate it, the Punjab and Haryana HC has said.
A division bench passed the order on Friday while upholding the HC decision on premature retirement of Haryana Superior Judicial Services judicial officer Chaman Lal Mohal.
Mohal was entitled to work till the age of 60, but was forced to prematurely retire on January 29 after the court’s administrative judge declared his integrity as “doubtful”.
Seniority: not a fundamental right: CAT
From the archives of The Times of India 2010
New Delhi: Central Administrative Tribunal has refused to set aside an order by the MCD revising the seniority list of its junior stenographers saying that it cannot be claimed as a “fundamental right”. “As per the law, seniority is not a fundamental right of a public employee. It is only a civil right. There cannot be any change in this contrary to the principles of natural justice,” the Tribunal bench, said. PTI
Transfers
From the archives of The Times of India 2010
Courts shouldn’t meddle in routine transfers: HC
A Subramani | TNN
Chennai: A government servant holding a transferable post has no vested right to remain posted at one place and courts should not interfere with a transfer order made for administrative reasons, Madras High Court has ruled.
A bench of chief justice H L Gokhale and Justice V Dhanapalan, concurring with the submissions of senior counsel A L Somayaji, said, ‘‘It is the cardinal principle that a transfer is ordinarily an incident of service. The court should not interfere with a transfer order, which is made for administrative reasons, unless the orders are made in violation of any mandatory or statutory rule or on the ground of malafide.’’
The matter relates to a writ appeal filed by National Insurance Company Limited, which challenged a single judge order quashing the transfer of S Ashok Kumar, who was transferred to Tuticorin as divisional manager. Ashok Kumar challenged the transfer, stating that his father had been diagnosed with malignant rectal cancer and that he required constant medication and monitoring, including chemotherapy and radiation.
In 2008, Ashok Kumar had been transferred to Hyderabad, which was later put on hold in view of his father’s health condition.
Senior counsel Somayaji, however, pointed out that Ashok Kumar was in Chennai for 17 years without a transfer, and that the earlier transfer too had been cancelled on humanitarian grounds.
