In the case of STATE OF GUJARAT VS DR. P. A BHATT, the question of whether Allopathy doctors and doctors of indigenous medicine can be said to be performing “equal work” so as to be entitled to “equal pay” is answered.
FACTS
A High-Power Committee was established on May 3, 1990, with Shri R.K. Tikku as its chairman, to enhance the working conditions and career prospects for doctors employed by the government. This was done by a Memorandum of Settlement signed by the Ministry of Health and Family Welfare on August 21, 1989, and the Joint Action Council of Service Doctors Organisation. This committee held 30 meetings between June 1990 and October 1990, and on October 31, 1990, it issued a report with its recommendations. The recommendations in this Report were only applicable to service physicians with MBBS degrees, post-graduate medical degrees, degrees in super-specialities, and individuals working on both the teaching and nonteaching sides of medicine.
The Ministry of Health and Family Welfare established a second High-Power Committee on November 19, 1990, with the same person serving as its chairman—Shri R.K. Tikku—toconsider career advancement and cadre restructuring for practitioners of Indian Systems of Medicine and Homoeopathy. On February 26, 1991, this Committee issued a second Report that was limited to individuals who practised alternative systems of medicine and had degrees in Ayurveda, Unani, Siddha, or homoeopathy.
The Local Fund Audit, Ahmedabad requested clarifications via letters dated 04.03.1998 and 21.04.1998, as to whether the same benefits are available to non-MBBS medical officers holding qualifications such as G.A.F.M/LMP, following the implementation of the recommendations of the Tikku Committee dated 31.10.1990 in respect of allopathic doctors in the State of Gujarat by the Government Resolution dated 17.10.1994.
In response, the Gujarati government’s Health and Family Welfare Department published a government resolution stating that non-MBBS medical officers are also qualified for the benefit. In addition, this letter indicated that, by a government resolution dated 01.07.1997, the Tikku Committee’s recommendations were extended to physicians who were covered by the Employees State Insurance Scheme.
The respondents in this case, who were initially hired on an as-needed basis under the “Community Health Volunteer Medical Officers Scheme” put forth by the Government of India and who were subsequently absorbed by the State of Gujarat in May 1999, filed four writ petitions on the file of the High Court of Gujarat seeking an extension of the benefit of higher pay scales based on the recommendations of the Tikku Pay Commission. The Medical Officers (Ayurved) Association, made up of individuals initially appointed as Medical Officers Class-III, filed a separate writ petition. This Association requested a similar remedy to that outlined in the group of four writ petitions.
The High Court’s Division Bench dismissed all intra-court appeals, ruling that (i) non-MBBS doctors and MBBS doctors both belong to the same cadre and that, as a result, there may be no discrimination based on educational background; and (ii) non-MBBS doctors were performing the same duties and functions as MBBS doctors and even manning primary health centres independently, making them equally qualified for employment.
PETITIONER’S CONTENTION
On behalf of the State, it is argued that the recommendations of the Tikku Pay Commission for raising pay scales were per se applicable only to MBBS doctors; that the revision of pay scales in favour of allopathic physicians was justified by the ongoing shortage of allopathic physicians; and that the State Government had to fulfil its constitutional duty to provide adequate healthcare infrastructure.
The assailed order is incorrect in law and law and on facts because the High Court shamefully failed to recognize the fundamentally distinct nature of duties and responsibilities undertaken by Allopathy doctors and AYUSH doctors.
RESPONDENT’S CONTENTION
The learned attorney for the respondents responds by arguing that both Allopathy and AYUSH doctors are appointed to the position of Medical Officer falling under Class-II of Gujarat Medical Services; that once individuals with various qualifications are appointed to one unified cadre with a common pay scale and governed by one set of rules, then at a later stage, the Government cannot make a classification; and that all Medical Officers, regardless of their educational backgrounds, are subject to the same rules.
The appeals are likely to be dismissed because the findings of fact made by the learned Single Judge and the Division Bench of the High Court that both types of doctors are conducting equivalent work do not call for any interference under Article 136 of the Constitution.
JUDGEMENT
In our judgment, two issues come up for discussion in these appeals. They are: (i) Is it possible to set different pay scales for officers appointed to the same cadre based on their educational backgrounds? (ii) Can allopathic physicians and practitioners of indigenous medicine be deemed to have “equal work” to warrant “equal pay”?
This Court determined that the classification of Tracers into two pay scales—one for matriculates with a higher pay scale and the other for nonmatriculated with a lower pay scale—does not violate Articles 14 and 16 of the Constitution.
Doctors who practice allopathy must handle emergencies and treat trauma patients. The emergency duties and trauma care that Allopathy doctors are capable of executing, as well as the advancements in science and current medical technology, cannot be performed by Ayurvedic doctors due to the nature of their practice and the advancements in science and modern medical technology.
Ayurved doctors are also unable to assist surgeons in undertaking difficult surgeries, but MBBS doctors can. We do not intend for this to imply that one medical system is better than another. It is well known that MBBS doctors are required to care for hundreds of patients during outpatient days (OPD) in ordinary hospitals in cities and towns, however, this is not the case with Ayurvedic doctors.
We are unable to distinguish between Ayurvedic physicians who have already obtained some benefits thanks to the temporary injunction issued by this Court and those who have not.Additionally, we cannot ignore the fundamental rule that states a person cannot be permitted to keep a benefit obtained through an interim order issued by a court if the case’s final result was averse to that person.
As a result, all appeals are granted, the High Court’s contested order is revoked, and the respondents’ writ petitions are denied. All interlocutory applications, including the impleadment application(s), and the contempt petitions are likewise rejected. No fees
The recent judgement of P.V. Satheesan v. UOI & Ors deals with the question that whether a person can get absorbed in the department to which he had gone on deputation. Herein, the original application of the person was rejected by the Tribunal. Therefore, a writ petition was filed in the Delhi High Court challenging the order passed by the Tribunal.
FACTUAL BACKGROUND:
The petitioner was appointed as LDC in General Reserve Engineering Force (‘GREF’ in short). He was selected as LDC on a deputation basis in CBI on September 13, 2002. He initially worked in Chennai. In 2004, he applied for permanent absorption in CBI. Subsequently, on May 3, 2005, he was transferred to Delhi. CBI required a NOC for the petitioner’s permanent absorption in CBI. According to the petitioner, on March 24, 2005, GRPF/ parent department issued NOC for his absorption. But even after submitting NOC, CBI did not absorb deputationist as LDC/ SCS in CBI.
Thereafter, CBI requested for further extension of the petitioner’s deputation in CBI but the GREF did not accede to the same request. Accordingly, the Head Office of CBI vides Fax directed SP, CBI, AC-II to repatriate the petitioner to his parent department by March 26, 2006.
Therefore, the petitioner approached the Central Administrative Tribunal, Principal Bench, New Delhi. However, the original application of the petitioner was dismissed by the Tribunal stating that a person underlying deputation has no right to continue for long on deputation or get absorbed in the department to which he had gone on the department.
The petitioner, therefore, aggrieved by the order of the Tribunal moves to the Delhi High Court.
PETITIONER’S CONTENTIONS:
➢ The learned counsel for the petitioner submits that the petitioner joined the CBI on December 10, 2002, on a deputation basis and subsequently, as requested by the CBI, the GREF gave NOC for the absorption of the petitioner. However, after receiving NOC, the CBI denied the permanent absorption of the petitioner.
➢ The learned counsel further submits that the petitioner has served CBI for more than 20 years and in fact, he is superannuating on April 30, 2023.
➢ Furthermore, during his service in CBI, his work has been appreciated by the CBI by conferring “CBI Day Award”, “ATI UTKRISHT SEWA PATAK, 2016” and Commendation Certificates in 2006, 2015, 2016 & 2017.
➢ The learned counsel further submits that in the given background, if the petitioner is compelled to be repatriated then his entire family would be put to irreparable loss and injury.
➢ The learned counsel further states that it would be inequitable for the respondents to repatriate the petitioner to GREF, at this point, when the petitioner is on the verge of retirement after putting in more than 20 years of service which is more than his tenure in GREF.
RESPONDENT’S CONTENTIONS:
➢ The learned counsel for the respondent (CBI) submitted that the petitioner cannot claim absorption as a matter of right when CBI has already decided not to absorb deputation’s LDC/ SCS.
➢ He also submitted that, since 2005, no absorption of deputations LDC/ SCS has been effected.
➢ The learned counsel further relied upon the judgment of the Supreme Court in the case of Kunal Nanda v. UOI & Anr., (2000) 5 SCC 362, in this case, the petitioner, who had come on deputation from CRPF, sought his absorption in CBI. This request was rejected and he was repatriated. The decision was upheld by the Supreme Court. The learned counsel, therefore, contends that similar should be the outcome in this case as well.
JUDGEMENT:
The Delhi High Court observes that the petitioner has worked for 12 years in GREF as against 20 years of service in the CBI. Therefore, the court held that it is inequitable to deny the absorption of the petitioner in CBI. Insofar as the judgement of Kunal Nanda is concerned, the same shall not be applicable to the facts of this case, as the CBI (in that case) has rejected the prayer of the petitioner for absorption in CBI on the ground of unreliability. But in the present case, there is no issue of integrity raised by the CBI against the petitioner herein.
Thereby, the High Court opined that the petitioner should be absorbed in the CBI from the date when NOC was given by the GREF with all the consequential benefits that would flow pursuant to his absorption in CBI from that date. Accordingly, the Hon’ble High Court set aside the impugned order passed by the Tribunal.
This is the second application under Section 439 read with Section 436A of the Code of Criminal Procedure, 1973 seeking regular bail in case FIR No. 166/2015, dated 16.11.2015, recorded at P.S. Crime Branch under Sections 3 and 9 of the Official Secrets Act, 1923. The initial application filed on behalf of the current applicant was rejected as withdrawn by a coordinate bench of this Court on February 31, 2018, with an instruction to the learned trial Court to expedite the trial.
FACTS
P.S. Crime Branch obtained classified information on alleged anti-national acts supported by Pakistan-based intelligence operatives. The operation in question was handled by an Indian. Information about the deployment of the Indian Army and the Border Security Force (“BSF”) in Jammu and Kashmir and passed it on to people across the border, threatening national security. The mobile phone numbers involved were intercepted, and the names of two people engaged – Kafaitullah Khan and Abdul Rasheed surfaced. Kafaitullah Khan lived in Rajouri and Abdul Rasheed served in the BSF. It was found that Abdul Rasheed gave classified material to Kafaitullah Khan in exchange for money, who then gave it to Pakistan intelligence operatives.
Kafaitullah Khan came across his close friend Mohammad Saber, i.e., the present applicant, who was a primary school teacher. In confidence, Kafaitullah Khan told the applicant about his meeting with the aforesaid Pakistan intelligence officer and the task assigned to him. He agreed to the task by taking some money. Kafaitullah Khan got in touch with an ex-serviceman, Munawar, through the present applicant. Farid Khan had passed on some documents to Munawar, which were then passed on to Faizal-ur-Rehman through the present applicant. Mobile phones were recovered from Kafaitullah Khan, Abdul Rasheed, Munawar Ahmed Mir, Farid Khan and the present applicant. The Call Detail Records showed that the accused were in touch. Bank account details of all the accused persons were obtained from the concerned banksand it was found that Rs. 10,000/- were deposited in the account of the applicant.
The found documents pertaining to the Indian Army were forwarded to the appropriate authorities for examination. It was discovered that the aforementioned documents were classified in nature. Following the completion of the investigation, the first chargesheet in the current case against Abdul Rasheed Khan, Munawar Ahmed Mir, Farid Ahmed, Kafaitullah Khan, and the present application was filed on February 23, 2016.
APPEALANT’S SIDE
The applicant, according to learned counsel acting on his behalf, was detained on December 5, 2015, and has been in judicial detention for more than 7 years. It was also claimed that he had been imprisoned for more than half the maximum time permitted for the crimes he was accused of committing. As a result, the petitioner is eligible to be released on bail under Section 436A of the CrPC. It was further submitted that the applicant was not named in the FIR and the allegations against him are solely on the basis of the disclosure of Kafaitullah Khan and Abdul Rasheed. Learned counsel for the application testified that no incriminating material had been obtained from the applicant’s possession or from his domicile. Furthermore, no incriminating evidence was discovered on his laptop or camera. It was submitted that the prosecution has not been able to connect the Rs. 10,000/- transferred to the bank account of the applicant with any of the allegations made against him. Learned counsel further submitted that there is no evidence on record which shows that the data alleged to be transmitted was passed on by the applicant.
JUDGEMENT
In view of the facts and circumstances of the present case, the applicant is admitted to bail upon his furnishing a personal bond in the sum of Rs. 1,00,000/- along with two sureties of the like amount, one of which should be a relative of the applicant, to the satisfaction of the learned Trial Court/Link Court, further subject to some conditions.
To be known as the World’s Largest and Fastest Growing Democracy isn’t as easy as it seems to be on paper. The daily reports and the Analysis would present the Nation to be at the zenith of its Democratic Practices, but deep down, are some rooted issues which are highlighted quite scarcely
The halls of Parliament are often filled with heated debates, passionate arguments, and fiery rhetoric. However, amidst all the chaos, there is one thing that is essential for maintaining order and decorum – the power to suspend or dismiss a member.
The functioning of a parliament or legislative assembly is essential for any democracy. It is the place where representatives of people sit together to discuss and make laws for the welfare of the country. But what happens when the power to suspend or dismiss a member is abused? What happens when the disciplinary mechanism is used as a tool to suppress dissent or opposition? These questions have become increasingly relevant in recent times, as lawmakers around the world grapple with issues of free speech, political correctness, and political correctness gone wrong.
In such cases, the speaker or the presiding officer of the house has the power to take action against the errant members by suspending or dismissing them from the house. This article aims to discuss the difference between suspension and dismissal and their relevance in parliamentary proceedings.
The power to suspend or dismiss a member is derived from the rules and procedures of the house, as well as the Constitution in some cases. The presiding officer of the house, such as the Speaker in the UK or the Lok Sabha in India, is typically responsible for enforcing disciplinary actions.
Recently, in the Indian parliament, several opposition MPs were suspended for their unruly behaviour during the monsoon session. The speaker suspended them for the remaining period of the session, which led to a controversy over the extent of the speaker’s powers to suspend members. This incident once again highlighted the need to understand the difference between suspension and dismissal.
What is Suspension?
Suspension means to bar a member from attending the house proceedings for a specific period. The presiding officer of the house has the power to suspend a member if they violate the rules of the house or indulges in any disruptive behaviour. The power to suspend a member is derived from Article 105(2) of the Indian Constitution[1], which grants each house of parliament the power to punish its members for contempt or disorderly conduct. The rules and procedures of the house further elaborate on the circumstances under which a member can be suspended.
According to Rule 373 of the Lok Sabha Rules of Procedure and Conduct of Business[2], a member can be suspended for any of the following reasons:
Continuous disregard for the authority of the Chair
Wilful obstruction of the business of the house
Use of unparliamentary language or making defamatory remarks
Display placards or shout slogans in the house
Physical attack or assault on another member or a member of the house staff
Similarly, Rule 256 of the Rajya Sabha Rules of Procedure and Conduct of Business[3] provides for the suspension of a member for any of the following reasons:
Gross disorderly conduct
Wilful obstruction of the business of the house
Refusal to obey the Chair’s order
Use of unparliamentary language or making defamatory remarks
Display placards or shout slogans in the house
Once a member has been suspended, he or she is barred from attending any meetings of the house or any committee of which he or she may be a member. The member is also not allowed to enter the parliamentary premises during the period of suspension.
The period of suspension can vary depending on the severity of the offence and the discretion of the presiding officer of the house. In some cases, a member may be suspended for a few days or weeks, while in other cases, the suspension may last for the entire duration of the session.
It is important to note that a suspended member continues to be a member of the house, and his or her seat is not declared vacant. However, during the period of suspension, the member is not entitled to receive any salary or allowance from the parliament.
What is Dismissal?
In the Indian Parliament, dismissal refers to the expulsion of a member from the house. It is a severe disciplinary action that is taken when a member has committed a serious offence that is considered to be a breach of the privilege of the house.
The power to dismiss a member is derived from Article 105(3) of the Indian Constitution[4], which grants each house of parliament the power to expel its members for misconduct or breach of privilege. The rules and procedures of the house further elaborate on the circumstances under which a member can be dismissed.
According to Rule 374 of the Lok Sabha Rules of Procedure and Conduct of Business[5], a member can be dismissed for any of the following reasons:
Breach of the privileges of the house
Refusal to obey the Chair’s order
Wilful disregard of the authority of the Chair
Use of unparliamentary language or making defamatory remarks
Physical attack or assault on another member or a member of the house staff
Similarly, Rule 256 of the Rajya Sabha Rules of Procedure and Conduct of Business[6] provides for the dismissal of a member for any of the following reasons:
Breach of the privileges of the house
Refusal to obey the Chair’s order
Wilful disregard of the authority of the Chair
Use of unparliamentary language or making defamatory remarks
Physical attack or assault on another member or a member of the house staff
Once a member has been dismissed, his or her seat is declared vacant, and a by-election is held to fill the vacancy. The member is also not eligible to contest any by-elections for the remainder of the term of the house. It is important to note that the power to dismiss a member is a discretionary power of the house, and is exercised only in the most extreme cases. The decision to dismiss a member is taken by a vote of the house and requires the support of a majority of the members present and voting.
Dismissal stands to be a severe disciplinary action that is used in the Indian Parliament to maintain discipline and uphold the privilege of the house. The power to dismiss a member is derived from the Constitution and the rules and procedures of the house and is exercised only in the most extreme cases. The decision to dismiss a member requires the support of a majority of the members present and voting, and the seat of the dismissed member is declared vacant.
Decoding the Differences between Suspension and Dismissal in the Indian Parliament
Suspension and dismissal are two different disciplinary actions that can be taken against a member of the Indian Parliament for breach of privilege or misconduct. While both actions involve the removal of a member from the house, there are significant differences between the two.
Meaning and duration: Suspension refers to the temporary removal of a member from the house for a specific period, while dismissal refers to the permanent expulsion of a member from the house.
Severity: Suspension is a less severe disciplinary action than dismissal. Suspension is used to maintain discipline and order in the house and to deter members from engaging in misconduct. Dismissal, on the other hand, is a more severe disciplinary action that is taken only in the most extreme cases of misconduct or breach of privilege.
Process: The process for suspension and dismissal is also different. In the case of suspension, the Speaker or the Chairman of the house can order the member to withdraw from the house for a specific period. The decision to suspend a member can also be taken by the house, based on a motion moved by another member. The decision to dismiss a member, on the other hand, can only be taken by the house, and requires the support of a majority of the members present and voting.
Duration of the process: The process of suspension is usually quicker than that of dismissal. In most cases, the decision to suspend a member is taken on the same day as the incident of misconduct or breach of privilege. The process of dismissal, on the other hand, is more time-consuming and requires a more detailed inquiry into the conduct of the member.
Consequences: The consequences of suspension and dismissal are also different. In the case of suspension, the member is not allowed to attend the house for a specific period but retains his or her membership in the house. In the case of dismissal, the member loses his or her membership in the house, and the seat is declared vacant. The dismissed member is also not eligible to contest any by-elections for the remainder of the term of the house.
Effect on the member’s reputation: Suspension and dismissal also have different implications for the reputation of the member. While suspension may be seen as a minor blemish on the member’s record, dismissal is a severe strain on the member’s reputation and can have serious consequences for his or her political career.
Precedence: Suspension is a more common disciplinary action than dismissal in the Indian Parliament. Dismissal is used only in the most extreme cases of misconduct or breach of privilege, while the suspension is used to maintain discipline and order in the house.
While both suspension and dismissal are disciplinary actions that can be taken against a member of the Indian Parliament, there are significant differences between the two. Suspension is a less severe disciplinary action than dismissal and is used to maintain discipline and order in the house. Dismissal is a more severe disciplinary action that is taken only in the most extreme cases of misconduct or breach of privilege. The process and consequences of suspension and dismissal are also different, and the implications for the reputation of the member are also different.
Their Similarities
Although suspension and dismissal differ in severity and the decision-making process, they share some similarities.
Both are disciplinary actions taken against members who violate the rules and regulations of the house.
Both can be used to maintain the decorum and dignity of the house.
Both affect the rights and privileges of the members concerned.
Legal Statutes Involving Suspension and Dismissal
The power to suspend a member is derived from the rules and procedures of the house. In India, the power to suspend a member of parliament is given to the speaker under Rule 374 of the Rules of Procedure and Conduct of Business in Lok Sabha[7]. Similarly, in the UK, the power to suspend a member of the House of Commons is given to the speaker under Standing Order No. 44[8]. The rules and procedures of the house also provide for the procedure of suspension, including the duration of the suspension and the appeal process.
The power to dismiss a member is derived from the constitution and the rules of the house. In India, Article 102 of the Constitution[9] provides for the grounds for disqualification of a member of parliament.
The Parliament (Prevention of Disqualification) Act, 1959[10], provides for some exemptions from disqualification, but the power to dismiss a member is subject to the Constitution. Similarly, in the UK, the power to dismiss a member of the House of Commons
There have been several legal judgments and case laws related to the power of suspension and dismissal in parliamentary proceedings. In 2019, the Supreme Court of India upheld the power of the speaker to suspend a member under Rule 374 of the Rules of Procedure and Conduct of Business in Lok Sabha. The court also held that the decision of the speaker to suspend a member cannot be questioned in a court of law, as it falls within the scope of the internal proceedings of the house.
Similarly, in the UK, the House of Commons Standards Committee recommended the suspension of a member of parliament for seven days for using derogatory language towards a fellow member in 2020. The recommendation was accepted by the house, and the member was suspended for the said period.
Case Laws Pertaining to the Provisions of Suspension vs Dismissal in Parliament
Certainly! The power to suspend or dismiss a member of parliament is a crucial aspect of parliamentary proceedings, and several famous case laws have helped to define the scope and limitations of this power. Let us take a closer look at some of these case laws.
In this case, Subramanian Swamy, a member of the Rajya Sabha, was suspended for his alleged derogatory remarks against the Prime Minister of India. Swamy challenged his suspension in the Supreme Court, arguing that the power to suspend a member should not be used as a tool to stifle dissenting voices.
The Supreme Court, while upholding Swamy’s suspension, held that the power to suspend a member is an essential component of the disciplinary mechanism of the house. The court also observed that the power to suspend should be exercised judiciously and with caution, and should not be used as a tool to suppress dissent or opposition.
Michael Martin MP (2009)
In the UK, the Speaker of the House of Commons has the power to suspend a member for disorderly conduct. In 2009, Michael Martin, the Speaker at the time, suspended a member of parliament for calling him a “little Hitler.”
The member challenged his suspension, arguing that the Speaker had exceeded his authority. However, the courts upheld the Speaker’s power to suspend a member for disorderly conduct and rejected the member’s challenge
Jeremy Corbyn MP (2020)
In 2020, Jeremy Corbyn, a former leader of the UK Labour Party, was suspended from the party for his response to a report on anti-Semitism within the party. Corbyn had suggested that the issue had been overstated for political reasons. The suspension sparked a controversy, with some members of the party supporting Corbyn and others calling for his expulsion. Eventually, after an internal investigation, Corbyn’s suspension was lifted, and he was readmitted to the party.
This case highlights the importance of the disciplinary mechanisms within political parties and the need to balance the right to free speech with the need to maintain party discipline.
In this case, the Lok Sabha (the lower house of the Indian parliament) suspended Vijay Kumar Malhotra, a member of parliament, for his alleged involvement in a corruption scandal. Malhotra challenged his suspension in the Delhi High Court, arguing that the power to suspend a member was arbitrary and violated his fundamental rights.
The Delhi High Court rejected Malhotra’s challenge, holding that the power to suspend a member was a necessary component of the disciplinary mechanism of the house. The court also observed that the power to suspend was subject to judicial review but only on limited grounds.
These case laws highlight the importance of the power to suspend or dismiss a member in maintaining discipline and decorum within parliamentary proceedings. However, it is equally important to ensure that the power is exercised judiciously and in accordance with the rules and procedures of the house.
Conclusion
In conclusion, suspension and dismissal are two disciplinary actions that are used in parliamentary proceedings to maintain decorum and discipline. Suspension is a temporary punishment, and the power to suspend a member is derived from the rules and procedures of the house. Dismissal is a permanent punishment, and the power to dismiss a member is derived from the Constitution and the rules of the House. Although the two punishments differ in severity and decision-making process, they share some similarities, and both affect the rights and privileges of the members concerned.
In the UK, for example, the power to suspend a member for disorderly conduct has been used to punish members for everything from shouting in the house to using derogatory language. In some cases, the punishment has been seen as excessive or arbitrary, leading to calls for reform of the disciplinary process.
Similarly, in India, the power to suspend a member has been used to punish members for everything from sleeping in the house to making controversial statements. Some have argued that the power to suspend is being used to stifle dissent and opposition, leading to concerns about the erosion of democratic values.
Of course, not all suspensions and dismissals are controversial or unjustified. In many cases, these disciplinary actions are necessary for maintaining order and decorum within parliamentary proceedings. But it is essential to ensure that the power is not being abused and that the rights and privileges of members are not being unduly curtailed.
In conclusion, the power to suspend or dismiss a member of parliament is a crucial aspect of parliamentary proceedings, but it is equally important to ensure that the power is being exercised judiciously and in accordance with the rules and procedures of the house. As lawmakers continue to grapple with issues of free speech, political correctness, and the role of the disciplinary mechanism in maintaining order and decorum, it is essential to strike a balance between discipline and democracy. Recent legal judgments and case laws have upheld the power of the presiding officer of the house to suspend a member and the power of the house as a whole to dismiss a member in appropriate cases. It is essential to maintain the decorum and dignity of the house, and the power to suspend or dismiss a member should be exercised judiciously and in accordance with the rules and procedures of the house.
Endnotes:
Constitution of India art. 105(2) (as amended by the Constitution (Forty-Fourth Amendment) Act, 1978)
Lok Sabha Rules of Procedure and Conduct of Business, Rule 373
Rajya Sabha Rules of Procedure and Conduct of Business, Rule 256
Constitution of India art. 105(3) (as amended by the Constitution (Forty-Fourth Amendment) Act, 1978)
Lok Sabha Rules of Procedure and Conduct of Business, Rule 374
Rajya Sabha Rules of Procedure and Conduct of Business, Rule 256
Lok Sabha Rules of Procedure and Conduct of Business, Rule 374
Standing Orders of the House of Commons, Standing Order No. 44
Constitution of India art. 102
The Parliament (Prevention of Disqualification) Act, 1959, Act No. 10 of 1959 (India)
Subramanian Swamy v. Raju, (2011) 6 SCC 617
Lok Sabha Secretariat v. Re Vijay Kumar Malhotra, [2006] Delhi High Court 269
This article is authored by Rishaan Gupta, a 1st year Student at National Law University, Delhi.
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Deepak Sabharwal & Associates (DSA), is a full-service law firm providing legal services for the last 49 years having profound expertise in various fields of law. The firm is a mid-size legal firm operating through its offices in Delhi, Mumbai, Kolkata, Hyderabad, Chennai, and Bangalore apart from having associates in almost all the major cities of India. They are having to represent clients in almost all the high courts and about 250 districts in the country. The firm has been providing specialist services since 1967 to a wide range of industries.
They have also been providing advisory services to our clients in various fields and regulatory approvals from the Foreign Investment Promotion Board (FIPB), Reserve Bank of India (RBI), and other government authorities, etc. Deepak Sabharwal and Associates is noted for its commitment to client service and its ability to solve the most complex and demanding legal & business challenges worldwide in a very cost-effective manner.
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Assist senior advocates in their filing and drafting
Work on all courts in Delhi NCR and the Hon’ble Supreme Court of India
Work on getting exposure to corporate clients and corporate work
Tenure
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Job offer: On successful conversion to a permanent employee, the candidate can expect a salary of Rs. 2 to 3 Lac/annum
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RITU TOMAR VS. STATE OF U.P. AND OTHERS, in this case, the petition filed under Section 482 of the Code of Criminal Procedure (for short “the Cr.P.C.”) for the quashing of the FIR for the offence punishable under Sections 147, 148, 149, 452, 324, 307, 342 and 506 of the Indian Penal Code (for short “the IPC”).
FACTS
According to the prevailing tradition and practice, the marriage of the appellant’s sister, Ms. Rekha, the fourth respondent in this case, and the third respondent came to be solemnized on May 15, 2011, leading to its consummation and the birth of a baby girl who has since been given the name Tejal.
APPELLANT’S CONTENTION
According to the said Ms. Rekha, who claimed she had been expelled from the marital home, she filed a petition under Section 125 of the Criminal Procedure Code, which was registered as V. No. 230 of 2014 and is currently pending on the file of the Principal Family Judge. As a result, an order was made on July 22, 2017, requiring the third respondent to pay a sum of Rs. 5,000 per month. Additionally, on March 15, 2017, she filed a police report (FIR) with the Harsh Vihar Police Station in North East Delhi for Crime No. 73 of 2017 against the third respondent and others for offences punishable by Sections 498A, 406/34 of the IPC read with Sections 3 and 4 of the Dowry Prohibition Act. The jurisdictional police claimed to have started the inquiry based on the aforementioned FIR that was filed.
RESPONDENT’S CONTENTION
When the aforementioned factual situation occurred, the third respondent filed an Application No. 41 of 2018 under Section 156(3) of the Criminal Procedure Code, alleging that the appellant and Respondent Nos. 4 to 7 had forcibly entered his home and attacked the complainant and his father with a knife on the applicant’s head with the intent to kill them when they refused to heed their demands to leave the village after selling the land and home. On the basis of the aforementioned complaint, which was brought before the Chief Judicial Magistrate-I, Gautam Budh Nagar, a report from the second respondent was requested; as a result, a report was submitted on March 11, 2018, opining that the accused parties, including the appellant, never visited the complainant’s home and that the incident in question had not occurred. However, the Learned Magistrate ordered the filing of a police report on May 3, 2018, and as a result, the second respondent filed a police report in Case Crime No. 55 of 2018 against the appellant and others for the violations listed above. As a result, a plea to nullify the aforementioned FIR was filed; however, when it was denied, the current appeal was submitted.
JUDGMENT
1. We have read the documents and listened to knowledgeable solicitors representing the parties. After giving the claim made by the appellant before the High Court careful consideration and repetition before this Court, we have concluded that the third respondent, who is the appellant’s sister’s husband and who had filed an application under Section 156(3) before the Additional Chief Judicial Magistrate-Ist, Gautam Budh Nagar in application No.41 of 2018, has unquestionably passed away while the current proceedings were pending. His name was consequently removed by order dated January 20, 2020. Regarding responses 1 and 2, none have surfaced.
2. Despite the aforementioned facts and the fact that a dispute between two families had already led to the wife filing two cases, which led to the registration of an FIR against the complainant (the third respondent here) and his family members, as well as the fact that none of the villagers, including the complainant’s neighbours, had supported or testified about the occurrence of any incident on January 26, 2018, as claimed by the complainant.
3. Therefore, insofar as the appellant is concerned, we quash the proceedings filed by the second respondent as Crime No.97 of 2018 under Sections 147, 148, 149, 452, 324, 307, 342, and 506 of the IPC. Therefore, the appeal is granted.
The Delhi High Court on Thursday while referring to Section 73 of the Finance Act, 1994, upheld that the question of whether the notice or demand for recovery was given within a reasonable length of time considering the case’s facts and circumstances should be considered by the pertinent official. Moreover, it is established law that jurisdiction must be exercised within a reasonable amount of time even if a time limit is not specified. If there exist nojustified reasons to condone the delay cause, then the relevant case becomes unreasonable in the court of law. Through the case of Sanghvi Reconditioners Pt. Ltd. v. Union of India through the Secretary, Department of Revenue & Ors., the court further iterated the fact that the definition of ‘reasonable time’ is sufficiently open-ended to take account of the particular facts and circumstances of each case.
FACTS
In the matter at hand, the petitioner is a partnership firm registered under the IndianPartnership Act, 1932. The petitioner company was a contractual worker which was tasked with building residential flats by the Housing Board, Haryana (HBH) during July 2005 which had been completed thereafter. The Anti-Evasion branch of the Respondent organisation proceeded investigation as to why the petitioner company hadn’t paid taxes amounting toapproximately
2.15 crores in addition to not having registered with the Service Tax Department.Accordingly show cause notices and letters were issued to the petitioner from the respondent. After initial proceedings, the petitioner did not receive further communication from the respondent, and considered the case to be closed. But the respondent further asked the petitioner to submitshow cause as to the inability to pay taxes. The show cause notices and letters are being challenged in the present court by the petitioner on the grounds of exceeding the limitationperiod and the nature of the contracts between the petitioner company and its clients beingstatutory bodies in nature.
CONTENTIONS
Petitioner
The petitioner’s learned counsel has submitted before the High Court that the contractsprovided by the Housing Board of Haryana were composite in nature and were solely ‘workcontracts. Moreover, since the construction of the residential flats was made in the interest ofpublic good, alongside HBH, the petitioner company was merely aiding in a statutory activityand was hence not liable for service tax. In addition, the petitioner also claimed that theperiod of limitation under Section 73 of the Finance Act, the present case had exceeded its capacity.
Respondent
Contrary to the petitioner’s counsel, the respondent’s learned counsel submits that therespondent no.1 had immediately placed the matter at hand in the ‘Call Book’ with theapproval of the commissioner, as had been prescribed by the norms of the CBEC Circulars.Additionally, the respondent also claims that the petitioner was not eligible to attain 67%value of the benefits from the taxable service since the supplies for these services were received by the Petitioner at zero cost from the HBH.
JUDGEMENT
Upon giving due regards to the facts and law in the above-mentioned case, the Hon’ble HighCourt finds it challenging to accept that the impugned show cause notice could not have been decided upon because the Supreme Court was still debating the controversy it involved as regards to the matter of M/s Sobha Developers Ltd. when it came to the concept of ‘CallBooks.’ Even if the concept of such books was assumed to be true, it was still quintessentialfor the respondents to have maintained communication with the petitioner company which itwas unable to do. Moreover, there is no excuse for delaying the decision on the notice formore than fifteen years after the show cause notice and letters were issued. The respondents were directed to restrain from taking any actions regarding the same and the petition was allowed, disposing of all other pending applications.
Ampride Legal (advocates & consultants) is a professionally managed and result-oriented law firm providing holistic legal service/consultancy to banking & non-banking financial companies, corporate, importers, exporters, manufacturers, and service providers, including logistics/shipping agents/CHA on a PAN-India basis settlement commission, high court.
Responsibilities
Handling legal compliance (drafting) compliance on projects
Disclaimer: All information posted by us on Lexpeeps is true to our knowledge. But still, it is suggested that you check and confirm things on your level.
